CO885-(15-16) — Page 216

26696

PUBLIC RECORD OFFICE

Reference :-

། T C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

15 PUBLIC RECORD OFFICE, LONDON

That if Trooper Moore was subject to Military Law under Section 176 (3) of the Army Act, a fact which you saw no reason to doubt, he could presumably be arrested in accordance with the ordinary practice under Military Law and sent to South Africa for trial by a Military Court, but that a difficulty arose owing to the provisions of Section 177 of the Army Act.

•

That that section provided that when any force was raised in a Colony any law of the Colony might extend to the officers, non-commissioned officers, and men belonging to such force whether within or without the limits of the Colony, and that in so far as the law of the Colony had not provided for the government and discipline of such force, the Army Act, subject to such exceptions and modifications as might be made by General Orders, should apply to the members of that force.

That this section seemed to cimet that where a Colonial law applicable to a Colonial force was in operation, the Army Act could only apply to that force in so far as the Colonial Law had not made provision for its government and discipline, and that therefore inasmuch as Proclamation No. 24 of 1900 (which was a law of the Orange River Colony) had created the offence of desertion in respect of members of the Colonial force raised under that Proclamation, and had provided for the procedure and punishment in the case of offences created by that Proclamation, the provisions of the Army Act which dealt with the procedure and punishment in the case of desertion could not apply, and that any proceedings for desertion taken against Moore must be taken under the Proclamation No. 24 of 1900, and could not be taken under the Army Act.

That the question of the proper construction of Section 177 of the Army Act was one of considerable general importance, and that he was accordingly to request us to take these papers into our consideration and report to you—

1. Whether it would be possible to take proceedings against Moore under the Fugitive Offenders Act, 1881, for the return of Moore to South Africa for trial under the provisions of Proclamation No. 24 of 1900 ?

2. Whether it would be possible to take proceedings under the Army Act for the arrest of Moore as a deserter for the purpose of his being returned to South Africa for trial for desertion under the ordinary Military Law ?

3. Whether any other, and if so what, proceedings would be possible against Moore ?

4. What was the proper construction of Section 177 of the Army Act?

5. Did the Army Act override the provisions of any Colonial Law, or must the Army Act be read subject to the provisions of any Colonial Law in respect of a force raised in a Colony which was serving with part of His Majesty's Forces ?

That Mr. Bertram Cox was to add that a copy of his letter had been submitted to the Secretary of State for War, and that he enclosed a statement of the views held by that Department upon the matters referred to, and that he was to request us to take this statement into our consideration with reference to the questions on which our report was desired.

We have taken the matter into our consideration and have the honour to

Report-

1. No. There appears to be no Superior Court in the Orange River Colony, and the offence is not therefore punishable for the term specified in Section 9 of the Fugitive Offenders Act, 1881.

2. No. Having regard to Section 177 of the Army Act, 1881, proceedings must be taken under the provisions of the Proclamation of the 22nd October, 1900.

3. We know of none.

4 and 5. We think that the effect of Section 177 is to enable the authorities in a Colony to make their own laws for the government and discipline of a Colonial force. When such a law exists it overrides the provisions of the Army Act which in the absence of such law would apply.

6. Nothing further occurs to us.

The Right Honourable Joseph Chamberlain, M.P.,

&..

&c..

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

No 133A.

(GENERAL)

LAW OFFICERS to WAR OFFICE.

[Reserve Forces Acts, 1882 and 1899 : Proposed Amendment.]

Case.

The opinion of the Law Officers is desired on behalf of the Secretary of State for War with regard to the proposed amendment of the above Acts. The question has been discussed at great length at the War Office, as will be seen from the copies of the various Minutes which accompany this case. Shortly, however, the main point is as follows:--

The Reserve Forces Act of 1882, which is the main statute regulating the position of the Army Reserve, provides for the establishment of an Army Reserve in the United Kingdom (section 3). The men are liable to be called out for their annual training or in aid of the Civil power, and to be called out permanently in case of mobilization by proclamation, and penalties are imposed upon them for any failure to perform these duties. The Act does not scem in any way to contemplate the residence of Reserve men out of the United Kingdom, except that section 25, which deals with the trial of offences, does incorporate section 168 of the Army Act, 1881, which provides in general terms for the prosecution of offences in India and the colonies. Moreover, section 90 of the Army Art, 1881, sub-section 4, provides that when a soldier of the Regular Forces, serving beyond the seas, is transferred to the Reserve, he shall be sent back to the United Kingdom for that purpose. By section 11 the annual training is to be held within the United Kingdom; it has, however, been the practice for many years to give Reserve men leave to reside in India and in British colonies where a British garrison is kept. Men have also to some extent gone abroad to foreign countries, or to British colonies where no garrison is kept, without leave. The Regulations for the First Class Army Reserve (copy herewith) provide by Article 62 for the residence of Reservists in India or garrisoned British colonies.

In the year 1899 the question was brought forward by the Government of India, what course should be taken, having regard to the fact that Army Reserve men resident out of the United Kingdom could not be compelled to obey an order for mobilization or other orders issued to the Army Reserve, because the enactments of the Reserve Forces Act, 1882, would not be applicable out of the United Kingdom. The question seerns to have been confined on that occasion to the case of men serving in the Army, whose term of service with the colours expired while they were still in India, and in consequence of the representations of the Government of India and of the consideration of the matter at the War Office (see bundle A herewith), the Reserve Forces Act of 1899 was passed, which purports to extend the power of making Regulations under section 20 of the Reserve Forces Act, 1882, to the case of soldiers serving out of the United Kingdom transferred to the Reserve without returning to the United Kingdom. It would appear to be doubtful whether this Act would have the effect of making a soldier in that position liable to be summoned and convicted before any Court of Justice in British India in case, e.g., of his failure to appear in answer to a proclamation for mobilization; see, e.g., section 27, applying sections 163 and 164 of the Army Act as to evidence. Further, there may be other machinery involved in the Act of 1882, such as the provisions with regard to the issuing of the proclamation and the serving of the notice on Reserve men, which it would be difficult to apply by regulation.

The effect of the Act of 1899 was further considered by the Government of India and by the War Office, and it was pointed out that it did not apply to the larger class of men who, having joined the Reserve in the United Kingdom, subsequently during their term of Reserve service obtained leave to reside in India or a colony. A scheme was put forward for all..wing Army Reserve men to reside in India or a British Colony, to be at the disposal of the Indian or Colonial Government in case of mobilization, and to be paid by them (see bundle B). This scheme was in substance accepted by the Government of India, but it was declined by the Australian and New Zealand Governments. The number of reservists, however, who go to reside in Australia and New Zealand appears to be insignificant.

A further Bill has now been prepared (see draft herewith) by the Parliamentary Counsel for the purpose of extending the provisions of the Act of 1899 to reservists of this class (see Ĉ. pp. 10, 12). It has, however, been suggested by the War Office and

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