USE OF FORCE

Evening Post, Volume XCVII, Issue 39, 17 February 1919, Page 6

USE OF FORCE

TO COMPEL OBEDIENCE IN THE ARMY

JUDGE ADVOCATES DECIDED

OPINION

(ii iKUarAPR.) (FROM OUR SPECUI REPORTER.)

WANGANUI, 15th February.

An extremely, interesting point cropped up at the Crampton court-martial at present being held at Wanganui, during the hearing of the charge of having permitted members of the staff at the Detention Barracks to use unnecessary force in order to compel Private Harry Wilson to conform to an order to do. pack drill at the "double." There was on Thursday afternoon a 'decided variance of opinion between the Prosecutor (Captain F. Hudson) and counsel for the accused (Mr. C. A. Loughnan) as/to whether or no it is permissible for any army officer to use force in Order to maintain discipline. On the suggestion of the Judge Advocate (Captain P. E. Baldwin) the court adjourned in order that he might have-an opportunity of looking into the question and preparing his summing-up. ; On Friday Captain* Baldwin summed up on the point. There was, he said, practically no dispute as to the facts. Private Wilson, a soldier, under detention, had been ordered by the accused, his commanding officer, to do pack drill at the Wanganui Detention Barracks,on a certain date. He did not comply with the order and was thereupon ordered by the accused to do the pack, drill at the double. He refused to obey. He was then, on the orders and under the supervision' of the accused, compelled by physical force to carry out the drill as ordered. The force used was just sufficient to compel obedience. It caused him no serious inconvenience and no bodily harm. That was his own evidence. The accused was on these facts put on his trial before the. Court for permitting the use of unnecessary force to compel Private Harry Wilson, a soldier of the New Zealand Defence Forces, to do pack drill. .

The prosecutor in his address puts forward the argument that any force is unnecessary, because under, no circumstances can force be used to a soldier .except in accordance with' the commands ! of a competent tribunal. In support of this he cites the Manual of Military Law. He further contends that the use of any force upon a soldier i'or any other purpose is an infringement of the rights of the soldier. , The argument of the prosecutor therefore compels the Court to determine.whether force can be used in the' Army to compel, obedience or 'for any other purpose, and, if so. what are the limits to the use of such force. The prosecutor, bases his argument on paragraphs 20 and 30, of Chapter VII., of the Manual of Military Law. I cannot find any support for his contention there. In addition to the case cited by him, numerous ' other cases where force may be used are cited, one of them being the maintenance of discipline. Now it must * be noted that the authority I am quoting is a Manual of Military" Law, written for the use .of officers, and the expression "maintenance of discipline" '■ used there must mean the maintenance of military discipline in the widest sense as understood in. the Army. . The section is, therefore, clear authority that the .law permits force'to be used for the maintenance of military discipline.

The reason is obvious. The wellknown legal maxim, in point is Salus populi suprema lex. The nation's safety is the supreme consideration, because on the nation's safety hang all the rights and privileges of her citizens. Now the safety of a nation depends upon the efficiency of her armed forces; and, to use the_ expression of a very famous judge, "without discipline the army would be a rabble, dangerous oidy to its friends; and harmless to its enemies." L The maintenance of discipline is therefore a matter of supreme moment, not only to •.the army, but to the whole nation; and, in comparison with that, the socalled "rights" of individuals are of secondary moment. This explains why the efficiency of the force and .the maintenance of discipline is the'key-note to the interpretation of the Army Act and the customs of the services. Offences are classified and punishments are meted expressly by reference to the effect which the offence would have upon the efficiency of the force. Matters which in civil life would amount to but a trifling offence, judged by the , standard of the effect upon efficiency and discipline may become very grave of; fences; and one of the gravest offences judged by this standard is the offence of disobedience of orders. To maintain any semblance of discipline, orders.must be It was clear that for the'maintenance of discipline it must be in the power of the officer to compel obedience, and,1, subject to certain considerations, to compel obedience by force. The ProsecuW has referred to this as aii infringement of the rights of the soldiers. Any personal conduct of an officer or soldier which tended to the prejudice of order, discipline, and efficiency, was not a right, but a senseless and pernicious wrong, not only to the army but to every fellow soldier of the offender. The charge sheet also recognises that force might be used. It was certain that the "unnecessary" was not inserted without meaning or thought. The question the Court had to determine was was this force exercised to maintain military discipline. For the purpose of determining that, the Court \ had to satisfy itself on three points. First, what was the motive actuating the accused in ordering the force to be exercised? Was he actuated by a sense of . duty and did he proceed in the interest of discipline or was he actuated by some personal motive, such as cruelty or oppression. Second, was the duty one , that he was entitled to enforce? Third, was the force used necessary to compel compliance with the duty? With regard to the second and third points, the Court would have regard tc the customs of the service. If the Court found that the accused acted bona fide in the exercise of his duty; that according to the customs of " the service the duty was of such a character that he was entitled, for the maintenance of discipline, to enforce it; and that he permitted no unnecessary force, having regard to the usages of the services, he must be acquitted.

Dealing with the question of whether •the maintenance of discipline made tho use of force desirable, the Advocate drew the attention of the Court to the cvi ■ dence of Private Wilson as to his determination to carry out no military order. Without the use of force, he would have declined absolutely to do any military duty. Could anything be more subversive of discipline than that the commanding officer should permit such an attitude to be successfully maintained ? The accused was in charge of a detention barrack. Mast of the men under his charge were military defaulters. If was clear that if one man had been able to successfully dqfy the routine of the barracks, discipline would have been at an end there.

The Court then retired to consider its verdict, which, as in the other cages,will be delivered later. ■

It is understood that, although not necessarily so, the Court is generally bound by» the. expressed opinion of the Advoc^^ortrnajbteßs e£ law;,,