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Remembered Today:

Were Colonial Forces subject to Army Act?


Jonathan Saunders
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Can anyone confirm whether the Colonial forces were subject to the British Army Act.

Specifically, were the AIF subject to the Act, but with the exception of being discluded from the disciplinary provisions of the Act.

Many thanks in advance.

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Jonathan,

I will be brave enough to give this a shot, feel free to shoot back.

The Colonial forces are of two classes, namely, the forces raised by the government of a colony, and the forces raised in a colony by direct order of His Majesty to serve as auxiliary to, and in fact to form part for the time being of, the regular forces.

The first class of Colonial forces—those raised by the government of a colony—are only subject to the Army Act when so provided by the law of the colony and when serving with part of HIS Majesty's regular forces, and then only so far as the colonial law has not provided for their government and discipline, and subject to the exceptions specified in the general orders of the general officer commanding the forces with which they are serving. The Army Act, however (s. 177), provides that the colonial law may extend to the forces, although beyond the limits of the colony where they are raised.

The second class of Colonial forces—of which the West India regiment, the Royal Malta Artillery, the West African regiment, the non-Europeans of the .Fortress Companies, Royal Engineers, at Hong Kong and Sierra Leone, and the Hong Kong Singapore battalion Royal Garrison Artillery, are examples—is referred to by ss. 175 (4) and 176 (3) of the Army Act. Their pay and maintenance are voted annually by the Imperial Parlia¬ment, and they are in fact Imperial forces although serving in a colony.

So subject to the Army Act.

All Officers, non-commissioned officers and men belonging to a force raised in India or a colony when attached to or otherwise acting as part of or with any portion of the regular; reserve, or auxiliary forces in the United Kingdom.

All persons who are employed, by or are in the, service of any of His Majesty's troops when employed on active service and who are not under the former provisions of this Act subject to military law.

All non-commissioned officers and men belonging to a force raised in India or a colony to which this Act is, in whole or in part, applied by the law of India or the colony, at such times and subject to such adaptations, modifications, and exceptions as may be specified in such law.

As well as Subject to there own laws and the Army Act subject to adaptations, modifications and exceptions specified in their law.

Where any force of volunteers, or of militia, or any other force, is raised in India or in a colony, any law of India or the colony may extend to the officers, non-commissioned officers and men belonging to such force, whether within or without the limits of India or the colony ; and any such law may apply, in relation to such force and to any officers, non-commissioned officers, and men thereof all or any of the provisions of this Act, subject to such adaptations, modifications and exceptions as may be specified in such law, and where so. applied this Act shall have effect in relation to such force, subject to such adaptations, modifications and exceptions as aforesaid ; and where any such force is serving with part of His Majesty's regular forces, then so far as the law of India or the colony has not provided for the" government and discipline of such force, this Act and any other Act for the time being amending the name shall, subject to such exceptions and modifications as may be specified in the general orders of the general officer commanding His Majesty's forces with which such force is serving, apply to the officers, non-commissioned officers, and men of such force, in like manner as they apply to the officers, non-commissioned officers and men of the regular forces.

This section shall not apply to any officer belonging to any such force when attached to or doing duty with, or to any non-commissioned officer or man belonging to any such force when attached to or otherwise acting as part of or with, any portion of the regular, reserve, or auxiliary forces in the United Kingdom.

So very much dependant on the Colonies law unless serving in the UK or attached on active service.

Regards Charles

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I will be brave enough to give this a shot, feel free to shoot back....

Many thanks Charles - I think I follow but I'll read this again first thing tomorrow morning when the head is at its clearest!

Regards,

Jon

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Jonathan,

Specific to the A.I.F.

When the Australian colonies federated on 1 January 1901, they ceded responsibility for defence to the new Commonwealth Government. In 1903, it brought the various colonial military forces under a single binding piece of legislation, the Australian Defence Act, which enshrined the principle of a defence force comprised of volunteers who could not be compelled to serve outside Australia or its territories. Section 98 of the Act governed the use of capital punishment. It relied heavily on the relevant provisions in the colonial defence legislation of New South Wales, Queensland and Tasmania, which reflected concerns that local forces should remain under local control.

Under Section 98, only mutiny, desertion to the enemy and certain forms of treachery were punishable by death and the sentence had to be confirmed by the Australian Governor-General rather than a commander in the field.

Regards Charles

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That takes some reading.

So basically, in 1901 Australia defined its own rules of Militray Law, so that the Aust. Government had full control over its Military. One wonders how much the previous history of the Military in Aust. had to do with this? Another thing springs to mind, is being a volunteer force, how many would have volunteered, if they had to fight under another countries military law?

Jonathon, your question raises all sorts of why's and whatifs.

Ta and cheers

Kim

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Kim,

They where only subject to the Military Law of the colony when on its soil, when they left they become subject to the Army Act, subject to adaptations, modifications and exceptions specified in their law. The only one I can find of any consequence in relation to the AIF is Section 98.

The Colonial Navys proceeded straight to war.

Regards Charles

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Mmmm, section 98. As I questioned, wonder whether it was born out of Australia's previous history?

Thanks for posting this Joseph. and explaining it.

Cheers

Kim

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Kim

Born in 1901 because the Brits in South Africa shot two Australian Officers for murdering Prisoners of War, Ive not read the full case but the Australian Government wanted to deal with it. So this was incorporated in the 1903 Defence Act.

Regards Charles

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Sorry Charles, I've called you by your post name.

Yes, I'd say that had a lot to do with it. But it may have in fact started a bit before then, being just an idea for quite sometime until, in 1901, the government could make its own laws.

I don't know enough about the political stuff to do any more than just wonder. It is on my to do list for 'one day', along with quite a bit else.That's why this forum is great, it tosses up stuff to make you think a bit deeper.

Cheers

Kim

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I think the shooting of Morant & Handcock in 1901 had minimal effect on Australia's decision not to impose the Army Act on the AIF, relying more on the Defence Act 1903. In fact, the executions had very little impact on the Australian psyche at the time - most thought the British could do no wrong, so if Morant & Handcock were shot, they must have been guilty. Disquiet over the executions only began years later.

In my opinion, the real reason for imposing the death sentence on members of the AIF was the very real fear of adverse effects on recruiting. The AIF was the only national army in WW1 to be composed solely of volunteers. Two referenda were held (1916 & 1917) to try to introduce conscription, but were narrowly rejected by the Australian people. Lots of politics in this - Anglican vs Catholic, English vs Irish, etc.

Many members of the AIF rejected conscription because they felt if it was introduced, battaions could be brought up to full strength quicky - meaning they could be deployed again without sufficient rest. It is often said they rejected it "because they wouldn't bring their worst enemy into this", or because "if he's not man enough to come of his own free will, we don't want him here" - but these were not the only reasons...

So, the death penalty - while some Australians were sentenced to be shot - was never inflicted on the AIF because the Government felt it could slow the flow of volunteers. The executions of Morant & Handcock had nothing to do with it.

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Bob,

Not quite sure what you are getting at....but the conscription debate is interesting.

The base line was the AIF was subject to the Army Act 1881(UK) taking into account adaptations, modifications and exceptions specified in their law. This was not repealed in Australia until as late as 1985 when the government produced the Defence Force Discipline Act 1982.

Regards Charles

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Charles,

You're not the first to note my tendency to wander... :-)

I managed to combine 2 topics in 1!

Going back to my own service, I have a vague recollection of the Army Act applying while on active service, unless the Defence Act contradicted it. The Army Law Manual certainly was Australian. The DFDA was a complete re-write, and not as cut and dried as the ALM.

What I was getting at, in my rather convoluted way, was that the executions of Morant and Handcock were not the reason that the death penalty was not applied to members of the AIF.While the AIF of 1914-1918 was subject to the Army Act, the death penalty was not readily available.

In fact, there several occasions when senior Australian officers recommended that certain individuals be executed. In every case, these recommendations were turned down by the Australian government because of concerns about the effect of executions on recruiting.

If conscription had been introduced, I am sure that members of the AIF would have become subject to the death penalty as, for example, Kiwis were. The loss of the conscription referenda prevented this.

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Bob,

I’m not really up on Australian History, Section 98 of the Defence Act was presented in 1903, that’s why I say the death sentences during the South African Campaign made a difference in the way the law was made. I can’t find any other significant difference in the act.

The Defence Act of 1903 made provision that the Army Act 1881 (UK) were made applicable to the Army while its members were on active service.

Under Section 98 Defence Act 1903 only mutiny, desertion to the enemy and certain forms of treachery were punishable by death and the sentence had to be confirmed by the Australian Governor-General rather than a commander in the field.

The Defence Act 1903 gave the Governor-General power to constitute a Board of Administration for the Military Forces, which was called the Military Board, and prescribed the powers and functions with which the Board could be invested. By virtue of the powers given to the Military Board by the Australian Military Regulations, the Military Board regulated the administration of the Military Forces by the Australian Military Orders, the Military Board Instructions, and Army Routine Orders.

In 1917 the Defence Act 1903 was amended, and the law in relation to discipline that applied to the Army depended on whether the Army was on active service or not with the only significant difference between the legislation that was applicable in time of peace and that which was applicable in time of war was that the available punishments were greater in time of war.

The provisions of the Army Act 1881 (UK) continued to apply to the Army until repealed in 1985. Since 3 July 1985, discipline in the Army has been governed by the Defence Force Discipline Act 1982.

I may be missing something so if there is any other significant differences between The Manual of Military Law 1914 and the Australian Manual of Military Law 1914 let me know.

Regards Charles

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Charles,

Best summing up on Australian military law that I've ever seen! As a young NCO (pre-1985) I remember been fascinated while reading the ALM and seeing what I could get shot for!

While the Morant-Handcock executions may have been on the legislator's minds, I'm not convinced it had a significant impact on the legislation. I think that is one of the many myths that has sprung up about the case.

While I cannot recall specific instances, I know that on several occasions Brigade & Divisional commanders in the AIF recommended the death penalty for some of their men, but were turned down. No Australians were executed, although there was a serious mutiny in the 1st Battalion in 1918 when a company refused an order to return to the front. See http://www.awm.gov.au/encyclopedia/first_aif/mutinies.htm and http://www.awm.gov.au/encyclopedia/desertion.htm.

For more information on Morant see: http://www.awm.gov.au/people/timeLine_267.asp and http://www.awm.gov.au/people/267.asp

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Many members of the AIF rejected conscription because they felt if it was introduced, battaions could be brought up to full strength quicky - meaning they could be deployed again without sufficient rest. It is often said they rejected it "because they wouldn't bring their worst enemy into this", or because "if he's not man enough to come of his own free will, we don't want him here" - but these were not the only reasons...

Bob,

I know you've only said 'many' which is broadly correct but the context you've put it is misleading. The way I read your post would indicate 'the majority' which is incorrect. Although admittedly it was a narrow margin in both referendums, on both occasions the soldiers of the AIF voted 'for' conscription.

Forgive me for being a little picky (and changing the subject again) but I thought it needed clarification. :)

Tim L.

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Bob,

Thanks for the links, from a humdrum start this thread is turning out very intresting. Seems odd that the 100+ men engaged in an obvious mutiny where charged with Desertion though.

Regards Charles

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Bob,

I know you've only said 'many' which is broadly correct but the context you've put it is misleading. The way I read your post would indicate 'the majority' which is incorrect. Although admittedly it was a narrow margin in both referendums, on both occasions the soldiers of the AIF voted 'for' conscription.

Forgive me for being a little picky (and changing the subject again) but I thought it needed clarification. :)

Tim L.

Tim,

I couldn't agree with you more. No need for an apology for being picky! Like many on the Internet, I need to choose my words more carefully so as to make my meaning unambiguous. I thank you for the clarification. I know exactly what I meant to say, you know exactly what I meant to say - but many others may not!

The shame of it is that the AIF vote was all lumped in together, with no distinctions made between fighting units and supporting units (although most of the AIF were fighting units, leaving much of the administration and support to the the British). So we have no way of knowing which units voted yes, and which voted no - or even if such a distinction can be made at a unit level.

It is enlightening to read some of the correspondence between Monash and the Australian Government regarding the 'Battalion Mutinies', when battalions ordered to disband refused to do so. One comment he makes is that, like the conscription referenda, men in these battalions felt that if their battalion was disbanded to bring others up to strength, it meant they would be put back into the line again, and sooner. So although Battalion esprit de corps had a lot to do with these mutinies, there were deeper underlying issues that didn't quite find their way into Bean's histories.

Once again mate, thank you for pulling me on thhis issue. It's so much easier to express yourself face to face! :P

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While the Morant-Handcock executions may have been on the legislator's minds, I'm not convinced it had a significant impact on the legislation. I think that is one of the many myths that has sprung up about the case.

Whilst I cant add much to the way this thread has developed, I did look into the Morrant/Handcock executions a few years back. George Witton served about 5 years in prison and then wrote an account of the court martial debacle when he returned to Australia. This book was banned from publication by the Australian Gvmt and I dont think it actually saw print until the 1960s - which was when the profile of the Breaker Morrant affair escalated. On that basis it is probably fair to say it was a soon forgotten, or little known, incident in Australia in the years preceeding WW1 and had no major impact on the Australian Gmt's attitude to the death penalty.

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Tim,

It is enlightening to read some of the correspondence between Monash and the Australian Government regarding the 'Battalion Mutinies', when battalions ordered to disband refused to do so. One comment he makes is that, like the conscription referenda, men in these battalions felt that if their battalion was disbanded to bring others up to strength, it meant they would be put back into the line again, and sooner. So although Battalion esprit de corps had a lot to do with these mutinies, there were deeper underlying issues that didn't quite find their way into Bean's histories.

Got a lot on at the moment, but would like to examine this statement further.

For now,

Quote...

We were, all of us, set and determined that no matter what the consequences might be to ourselves as individuals, the breaking up of our splendid unit would be resisted to the uttermost. To us, it was inconceivable that the military authorities could possibly imagine that we 42nd men would calmly submit to the destruction of our Battalion; a Battalion which had covered itself with glory and distinction; a Battalion which had won unstinted praise for its trustworthiness and unflinching devotion to duty; an association which had been the means of cementing bonds of brotherly love and comradeship such as had never been exceeded in the annals of time. That we should be smashed up was unthinkable. It could not be. It must not be.

The Full story can be found here.

http://www.firstaif.info/42/spirit42/c1-patriotism.htm

Given what these men went through, mutiny at disbandment was understandable.

Cheers

Kim

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A cable from Gen Dodds (AIF HQ), to Gen Birdwood, dated 15/10/18, presented to Birdwood as a draft of a cable to be sent to Australia:

"Majority of the men of the 21st and 37th Bn showed much resentment and were disposed to be mutinous when ordered to be distributed amongst other Bns, and practically demanded to be retained in their own units with which they expressed their determination to continue fighting. Serious aspect was suggestion made by men that by eliminating Bn and thereby increasing others to full strength result would be that they would be continuously forced to take part in operations whereas with weak battalions authorities would be compelled to withdraw them from the field for an extended period. This was really the principal argument which was used in the conscription referenda and resulted in the adverse vote."

The cable then goes on to say that, as this happened on the eve of the battle for the Hindenberg Line, Monash put off the battalion disbandments temporarily, and no disciplinary action was taken or threatened. Furthermore, it recommended that these 'mutinies' not be made public knowledge at this stage of the war.

It is useful to note that when the second order to disband came, after the Beaurevoir battles, the Battalions obeyed the order to disband without further argument.

Source: Black over Blue: the 25th Battalion at War, 1915-1918.

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