MR. GORST, in rising to call attention to the circumstances under which a Native of Tanna was, on the 25th of September, 1877, put to death on board H.M.S. "Beagle," and to move—
That an humble Address be presented to Her Majesty, praying that instructions may be issued to the Officers commanding Her Majesty's ships to define and regulate their authority to put persons to death not subjects of Her Majesty;said, he disclaimed any intention of reflecting on the officers engaged in the affair, as they had only carried out the orders thrust upon them by their superiors; but he objected to the system by which naval officers were turned into Judges of Assize, and Her Majesty's ships into a sort of itinerant gallows. He wished a Parliamentary check to he put on such proceedings. It was a matter of complaint, too, that they had neither the whole of the evidence which was taken as to the man's guilt before them, nor had they the whole of the correspondence which took place between the authorities on the subject. It had been said that the hanging of a single man, even for an unjust act, was, after all, more humane than the destruction of a whole village; but why did Lieutenant Caffin not destroy the village? The fact was that he wanted to do so, but found that the village was out of his reach; and there was no reason, therefore, for attributing to him any humane motive for the course which he followed. As he could not destroy the village, the course he took was to seize a number of innocent individuals, who fancied themselves to he under the protection of the British flag and British justice, and who had no more to do with the murder than the First Lord of the Admiralty himself. Most of these men were detained for a time, but were afterwards allowed to go. Three, however, were still secured. Then, for the first time, the lad who was finally hanged was mentioned by one of the three prisoners. In many of those Islands the Chiefs exercised so much power that they could easily get someone to come forward and suffer even death for them; and in this case it appeared to him 1184 that the person executed was certainly not the culprit. The lad was cross-examined, but not his accuser. In the course of cross-examination, he contradicted everything that he had said before, and he was condemned solely on the evidence given by him in cross-examination. He was made to say—" I would have fired if my brother's shot had not taken effect," in answer to a question which no English Judge would have allowed to be put. The proceedings were very irregular, and even his judges did not seem to be satisfied that he was the murderer; for sentence was delayed, and the search renewed for the actual murderer. It was only when this search failed that the poor lad was put to death. Hitherto it had been the general opinion that the law of this country prevailed on board Her Majesty's ships of war, and that even an enemy's spy must be tried by a regularly constituted tribunal. The tribunal which had tried this youth had not been regularly constituted; and it was singular that the sentence, which was, of course, an important document, and which had been translated into Tannese for the benefit of the Natives, should not be forthcoming. He could not find it in the Papers presented to Parliament. He had always understood that the deck of a British man-of-war was a place within the peace of our Sovereign Lady. It might be said that the man who was hanged was in the position of a constructive boarder, whom it was lawful to kill as an act of war. He did not adopt that view, however, and his error on the point was shared by Sir Matthew Hale, who, 200 years ago, laid it down that if a man killed an alien enemy within this Kingdom it was felony, unless it were done in the heat of war and in the actual exercise thereof. The question naturally arose, who was really responsible for what had been done? There was evidently a time when the Admiralty thought they could throw the responsibility upon Commodore Hoskins, for they had telegraphed to him asking him to communicate at once the legal authority on which he had acted. Commodore Hoskins drew his neck out of the noose very satisfactorily by referring the Admiralty to two documents which he claimed would amply justify the proceedings. Those documents were a despatch of February, 1876, by the Secretary of State for the Colonies, and 1185 an opinion given by the Attorney General for New South Wales. The first was not produced, and he thought the House had a right to complain of the course taken by the Government in withholding it. The letter of the Colonial Secretary appeared to authorize the act in question, and the opinion of the Attorney General for New South Wales was to the effect that no tribunal in Her Majesty's Dominions having any jurisdiction to try a foreigner for offences committed outside of those Dominions, the commander of the ship was right in taking the law into his own hands. He had, however, yet to learn that the jurisdiction of a commander of a British man-of-war began when the jurisdiction of every other legal tribunal in Her Majesty's Dominions ceased. The proper course to have adopted would have been to have sent a ship of war to compel the foreign authorities to execute justice upon their offending subject, and not to have taken the law into their own hands. He should like to ask the hon. and learned Attorney General whether, in the opinion of Her Majesty's Government, the captain of a man-of-war, without the authority of an Act of Parliament, had jurisdiction to try persons not subjects of the Queen for offences committed outside of Her Dominions? If the Government did not mean to assert that, then the proceedings in this Tanna case were wrong. If, on the other hand, the Government did mean to assert it, all he asked was that the authority of the officers commanding British ships should be defined and regulated, if not by the authority of Parliament, at all events, by some instructions from Her Majesty.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words ''an humble Address he presented to Her Majesty, praying that instructions may he issued to the Officers commanding Her Majesty's ships to define and regulate their authority to put persons to death not subjects of Her Majesty,"— (Mr. Gorst,)
—instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)observed, that the subject before the House was a very serious one, and that it deserved far more grave 1186 treatment than had been given to it by the hon. and learned Member for Chatham (Mr. Gorst), in making his strictures upon Her Majesty's Government. The two questions raised were—first, whether instructions given by the Colonial Secretary to captains of Her Majesty's ships were proper; and, secondly, whether those instructions had been legally carried out? The hon. and learned Gentleman had said that he did not intend to make any attack on Lieutenant Caffin, but it seemed to him that the whole object of his hon. and learned Friend had been to show that this young officer had not done his duty; and that, in fact, he had hanged the wrong man. He (the Attorney General), however, thought he should be able to demonstrate, without the slightest difficulty, that the hon. and learned Gentleman's adverse criticisms were not in the least degree justified by the facts, that that officer had instituted a proper investigation into the facts of the case, that he had carried out his instructions properly, and that the opinion which he arrived at was right. The important question was not whether he had made a mistake, but whether, under such circumstances as existed in this case, the commander of a British man-of-war was entitled to read a lesson to the Natives of Tanna—that was to say, to endeavour by the action he pursued to put a stop to what was going on; and whether he was entitled to treat this man, who had murdered—for he would assume that for the sake of argument— a British subject in Tanna, as an enemy of Her Majesty? This was a question which must be dealt with, with some regard to the principles of common sense. He did not say there was any jurisdiction in point of law to try this man. No Court had, to his knowledge, yet been established in which to try savages; but when a savage attacked British subjects, and when it was necessary, to secure the rights of British subjects, to levy war upon them, we were perfectly justified in doing so. Take the case of a British ship of war anchoring off the coast. A party of men going on shore were attacked by the Natives, and one of them, from no fault of his own, was slain. Was it to be contended that, because there was no Court to try the Native who slew the man, the commander of Her Majesty's vessel might not take action immediately, and attack them? Had we 1187 arrived at such a pitch of humanitarian absurdity as to declare that in such a case the commander of Her Majesty's vessel had no right to take action for the protection of British subjects? It was a strong thing to say that the commander of one of Her Majesty's vessels had no right to levy war. Where his hon. and learned Friend got his views upon the subject he really did not know. His (the Attorney General's) view of this matter was a very simple one. He did not assert that the man was tried by any Court having jurisdiction to try him; but he and his fellows, Natives of Tanna, had murdered British subjects; and several British subjects having been previously murdered in that place, the commander of Her Majesty's vessel had a right to levy war on them. He might have shot them all down; he might have destroyed a whole village had he chosen; but because he had proceeded in a more merciful and considerate way, they had had a virulent attack upon the Government. The Secretary of State for the Colonies having telegraphed to Commodore Hoskins on the subject, the Commodore, in reply, sent a letter which gave a most reasonable and intelligible account of these proceedings. The Commodore said—
2. I beg now to report more fully that in giving Lieutenant Caffin orders respecting the punishment of the murderer of Easterbrook at Tanna, I was in the first place guided by the conviction, that it is the duty of naval officers generally to protect British subjects in lawless and savage places, and when they are maltreated or murdered, to punish the perpetrators, if it is clearly established that no sufficient provocation has been given, and that they had not forced themselves into the country in opposition to the wishes of the inhabitants.3. In holding that conviction, however, I have not lost sight of the fact, that the first pioneers of trade in such places as the Western Pacific Islands must go about to a great extent with their lives in their hands, and that it would be as impolitic as it would be unjust to visit with extreme rigour the offences against their persons or property which are committed by natives who, in what they do are only following their natural instincts and traditions, and are doubtless in many cases provoked and stimulated to revenge, by acts of which we hear nothing.4. From the time of my arrival on this station I have been constantly urged by island traders to avenge such offences with wholesale punishment and slaughter of their aggressors, but I have invariably resisted all applications which would involve indiscriminate firing on villages and probable loss of innocent lives, pointing out that where proper precautions are taken, such occurrences are rare, and are no more than must be expected as the consequence of careless ex- 1188 posure in dealing with savages with whom cannibalism and skull-hunting have been immemorial customs. In reply, it has more than once been intimated to me, that if I would not take action in the matter, the traders would take the law into their own hands; to which I have answered, that it did not alter my view of the matter, and that I should repress any improper conduct of British subjects to the utmost of my power.5. It is evident, however, that in our growing intercourse with the islanders, there is a point and class of offences, when it becomes necessary to hold them more strictly amenable to our usages and ideas, and estimate of the value of human life; and such is the case, I consider, when, in places where white men have established a footing, and the natives, from constant intercourse with them, and from labouring in our colonies, are emerging from the lower depths of barbarism, wanton outrages are committed by them on our people, with little or no provocation given, but stimulated by cupidity or revenge.He submitted that the view of Commodore Hoskins was a correct view. If British subjects had forced themselves upon these savages, the case would have been different; but when British subjects had been for some time living in the place, when the savages had become aware, to a certain extent, of our laws and of our mode of dealing with them, and then wantonly attacked British subjects for the purpose of revenge, or for the purpose of gratifying their cupidity, then it was time, in the opinion of Commodore Hoskins, to interfere. His hon. and learned Friend had said that Parliament was entitled to judge for itself of all the details, and that the instructions which were issued to Commodore Hoskins ought to have been placed before the House. Quite sufficient information had been placed before the House to enable it to judge of the matter, and if his hon. and learned Friend had had any real desire to see the Papers which he named, it was quite competent for him to have moved for them, and they would then have been produced. From the beginning to the end of this accusation against the Government, his hon. and learned Friend had acted like an attorney in a County Court, who, by way of accusation against his adversary, asked why he did not produce this, that, and the other, when all the time his hon. and learned Friend knew that the instructions would have been produced if he had asked for them. If they had had been put on the Table, they would have thrown more light on the subject, and thus his hon. and learned Friend would have been deprived of the only lance he could fairly or unfairly have 1189 used against the Government. But it had been said, instead of demanding this murderer to be given up to him, Lieutenant Caffin should have gone to the King or the Chief of the country, and have demanded that he should have taken the man's life away. But where was the difference? If we had the right to levy war, we had the right to take the man's life away? His hon. and learned Friend was more astute in these matters than he was; but he confessed that he could see no substantial difference. We had done all we could, by passing the Pacific Islanders Act, to prevent British subjects from attacking those people, and many outrages having occurred on British subjects, it became necessary that they should be checked. Let the House then consider for a moment whether Commodore Hoskins was fairly open to the attack which had been made upon him? Some time in April of last year, apparently, Easterbrook, the man in question, who was an inhabitant of the Island of Tanna, found his way, accompanied by some four men and his wife, on board a British man-of-war. He was at the time seriously wounded, and at the point of death. He was removed ashore and taken to the house of a missionary. Mr. Neilson, where he died shortly afterwards. Before he died, he stated that he had a quarrel with a man named Nakapok about cocoanuts. The same account had been given by his wife and by the four men. What was remarkable was that in those accounts nothing was said about there having been a quarrel in consequence of an intrigue with the wife of the murderer, and the matter having been brought under the notice of Commodore Hoskins, he issued the following sailing orders to Lieutenant Caffin on the 24th of July, 1877:—Being in every respect ready, you are to put to sea on Wednesday, the 25th instant, and proceed to Noumea, New Caledonia, where you are to communicate with Her Majesty's Consul, and hand him the enclosed letter.2. A British subject, named Easterbrook, having been murdered at Sulphur Bay, near Port Resolution, Tanna, Mr. Layard communicated on the subject with Lieutenant Musters, commanding the 'Conflict,' who visited Port Resolution and inquired into the matter. Lieutenant Muster's report of his investigation, and the conclusion he came to, is enclosed for your information.3. You are then to proceed to find the 'Renard' in the New Hebrides, and having 1190 taken her under your orders, make the best of your way to Port Resolution, Tanna, where you are to further inquire into the murder of Easterbrook; and should you be fully convinced that it was not his own misconduct which led to the commission of the deed, you are, should you deem your force sufficient, to endeavour to obtain possession of the murderer; and, if successful, you are to cause him to be executed in the most public and judicial manner possible.4. Should you, however, deem the force at your disposal insufficient for the purpose, and to overawe any resistance, you are to report so to me by the 'Renard,' which vessel, under any circumstances, is to leave for Sydney as soon as possible.Having received those instructions, Lieutenant Caffin set out for Tanna, and took into his counsel Lieutenant Pugh, who happened to be there at the time. He also consulted Mr. Neilson, the missionary, who seemed to know more about the Natives than anybody else. Lieutenant Caffin then said that on the day following his arrival he sent a letter to the chief men of the village of Numukur. to which the murderer belonged. He added—5. On Tuesday, the 18th"—of September— "a messenger arrived from the village with the reply that the chief men had received my letter, and that they refused to give the murderer up for trial.Now, his hon. and learned Friend contended that the course which had been taken by Lieutenant Caffin was altogether wrong; although, if the Chiefs had consented to execute the murderer, no complaint, he seemed to think, could be made. But the murderer not being forthcoming, what, he would ask, was Lieutenant Caffin to have done? There being a number of Natives on board the ships, he ordered them to be taken as hostages, in order to see whether he could not make them surrender the murderer. Many of these were afterwards allowed to go, but three were detained. Mr. Neilson then informed him that he had fortunately secured the principal man in the neighbourhood, and it was discovered on interrogation that the pre-supposed murderer Nakapok was not the actual one, but that a person named Yuhmaga, was. Mr. Neilson, the missionary, said—Yuhmaga acknowledged to me that he had shot Easterbrook, and I took out of his hands the musket with which he did it. He alleged in justification that the white man had committed adultery with a woman belonging to him, called Yasua. The woman, who was standing near, confirmed his statement, but on being questioned said that the adultery was committed with her consent.1191 Exhortations were made to the murderer to go on board Her Majesty's ship, where he might rely on a fair trial, and to take the woman with him; hut this he refused to do. A boat was landed from the Beagle to try and make him, but he rushed into the covers, and it would have been dangerous to follow him, seeing that the Natives, who were friendly to him, were armed, and thus prepared to prevent his capture. Now, what became of his hon. and learned Friend's statement, that Nakapok was the real murderer and that Yuhmaga was only a scapegoat?
MR. GORSTWhat I said was, that although Yuhmaga had openly stated on the beach that he was the murderer, yet it was quite conceivable that he was a mere scapegoat put forward by Nakapok.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)observed, that in reply to that, he could only say it was not conceivable and not possible, and that no rational man dealing with the matter would come to such a conclusion. After Yuhmaga had escaped, a man named Nawanabus, who held a good position among the Tanna people, was examined, and in his examination stated that Yuhmaga had murdered Easterbrook by Nakapok's orders. Yuhmaga, he added, was not accompanied by Nakapok on the evening of the murder, but by Nokwai, a younger brother of his own. Here it was, perhaps, well to remind the House that the investigation of the affair was not pursued under the same advantages as it would have been in a Court of Justice. Lieutenant Caffin had orders to get the murderer, and was bound to go upon the best evidence he could get, without troubling himself particularly about the propriety or otherwise of examining accused parties themselves. Accordingly, he did what most men would have done in the same circumstances. He examined Nokwai, who stated—
I saw Yuhmaga shoot Easterbrook. I was standing very close to Yuhmaga at the time. I had no gun, but my club was in my hand at the time. Yuhmaga said to me—'Let us two go and kill the white man.' I said—'I won't, but will go with you and carry my club.' Yuhmaga shot Easterbrook because he had committed adultery with Yasua …. the wife of Nakapok. I saw Easterbrook fall to the ground on his back, and I immediately ran. I think Yuhmaga was acting rightly in killing Easterbrook. There had been a quarrel between Nakapok and Easterbrook about cocoanuts. Nakapok did steal Easter-brook's cocoanuts, and brought them to him 1192 again for sale. Nakapok induced Yuhmaga to shoot Easterbrook. Nakapok and Easterbrook quarrelled for four days about the cocoanuts, and on the fifth day Easterbrook was shot. He was shot on account of his liberties with the woman, as well as on account of the cocoanut dispute.Having made that statement, Nokwai was confronted with Yuhmaga, who stated that his gun was loaded with powder and ball, and that his brother told him to fire, and he said he would have fired if his brother's shot had not taken effect. There could, therefore, be no doubt that Nokwai was there to help Yuhmaga in case of need. Now, was a man who committed murder because he was asked to do it to be held guiltless, and was another man who went there to assist him not to be held equally guilty with him? When it was said there was no evidence to convict the murderer, it seemed to be forgotten that they had the man's own confession; and it was also clear, from the evidence which appeared in those Papers, that all the three men concerned were guilty of murder according to our notions of law. In those circumstances, acting under his instructions, Lieutenant Caffin condemned the man to death. Giving a fair and reasonable interpretation to the evidence, anyone who was anxious to do what was just and right, and who, while he sympathized with the Natives, desired to protect British subjects, as was his duty, would come to the same conclusion as that at which Lieutenant Caffin arrived. It might be said that although the conclusion was right, nevertheless the orders were wrong; but he thought the officer was right in the decision to which he came. The hon. and learned Member for Chatham had accused that officer of he knew not what, and said that if he had been a Native Chief he would have refused to give up that Native. No doubt, in that case, the hon. and learned Member would have thrown every obstacle in his power in the way of a course that was reasonable and fair. But the commander of the Beagle thought it was his duty to get hold of the murderer; he did his best to get the man who actually fired the fatal shot. He failed to do so; but he did get the man who aided and abetted the crime, and who, according to our law, was guilty of murder, and caused him to be executed under the instructions he had received for the purpose of protcet- 1193 ing British life. The question was whether, when British subjects had been wantonly slaughtered without cause or justification, the commander of a British ship of war was not warranted in saying that he would stop such proceedings in future, and throw his protection over British subjects in future in that place, and would do so by levying war on those who had proved themselves to be enemies of Her Majesty?
§ SIR CHARLES W. DILKEsaid, that as the first Member who brought this subject before the attention of the House, he must express his surprise that, although the Attorney General had addressed the House at much length, he had shed so little light on the subject. It almost seemed as if, feeling the badness of his case, the Attorney General had spoken at such length to confuse the real issue before them. The hon. and learned Attorney General had divided the question under the two heads of the law and the facts. He considered that his hon. and learned Friend the Member for Chatham (Mr. Gorst) was a good authority to follow in regard to this subject, first as being a lawyer, and next as being an undoubted authority on the subject of the Polynesian Islands. The Attorney General had made merry at the expense of his hon. and learned Friend, because he had not called for Papers; but if he recollected rightly, those Papers had been made the subject of many a Question by his hon. and learned Friend. Let the Government produce the despatch on that matter of Sir Arthur Gordon, the High Commissioner for Polynesia, appointed under an Act of 1875, by which he was invested with exceptional and remarkable privileges for dealing with offences committed in that quarter. The Attorney General said that offences committed by Natives against Europeans did not come within that Act. They did not; neither did they come within any other provisions of law. But Sir Arthur Gordon—the highest authority on such a point—was of opinion that such offences would be better dealt with by him, with all the knowledge at his disposal, than in the manner adopted in this instance. The Attorney General had gone at some length into the question of who was to blame. Now, he thought that what the House had to do was to look at the facts, and see whether 1194 something had been done that was blameworthy; and, if that were so, it was for the Government to find the persons who were to bear the blame. The facts showed that there was censurable matter in that case. It was contended that the commander of a British ship had power to enforce by acts of war redress for acts committed against British subjects. But in the Pacific Islands Act there was a clause which, in spite of the power conferred on British officers, declared that nothing contained therein or in any Order in Council should be construed to invest Her Majesty with any title whatever to dominion or sovereignty over such places, in derogation of the rights of the Native Chiefs or Rulers to such sovereignty and dominion. Great care was taken at the passing of that Act to prevent anything like colour being given to the notion that we had a right to deal with the people of those Islands in a totally different way from that in which we dealt with other parts of the world. The Attorney General spoke of an act of war having been done in that case; but he must have used that expression in quite a technical sense, and not in the sense in which a plain man would use it. That, however, had nothing to do with the matter before the House. He would confine himself to the facts as they appeared on the Paper, and was surprised that the hon. and learned Gentleman had relied on picked and selected portions of the evidence of certain parties when their evidence was contradictory, and on the confession of the man himself who had been executed. The only evidence on which Nokwai was hanged was his own, to the effect that he saw the shot fired by his brother, and that if his brother's gun had failed he would have used his own, he having already stated that he had no gun. In the absence of Papers, he would also point out that there was no evidence to show that the murders of British subjects spoken of had occurred to anything like the extent which was supposed. The testimony of the missionaries, on the contrary, he ventured to think, would be found to be that the murders which were committed were connected with attempts to kidnap the Islanders for the purpose of sending them into slavery. As to the taking of hostages in the indiscriminate way in which Lieutenant 1195 Caffin had done, it was worthy of remark that there was no perceptible connection between those hostages and the crime which it was sought to punish; nor was it shown that they had the murderer in any sense within their control. The man, he might add, who was actually hanged, stated in his examination that he had no gun with him, although, having been very severely cross-examined, he said he had one, and upon such evidence as that he was put to death. Those facts, he thought, showed clearly that we had hanged a man who, under similar circumstances, would never have been put to death here or in any civilized country with which he was acquainted. He would, then, ask the House with confidence, whether they regarded the reply of the Attorney General as satisfactory, and whether they did not think that the Government, without being urged by his hon. and learned Friend the Member for Chatham, ought to have placed before them the evidence which was necessary to a complete review of the case? In the absence of such information, he could not believe that any man could read this account without a feeling of horror at what had occurred. The strongest opinion upon it had been expressed by those persons who had the greatest acquaintance with Polynesia. Admiral Erskine entertained a very strong opinion upon it, and with regard to an even higher authority—Sir Arthur Gordon—he (Sir Charles W. Dilke) challenged the Government to lay his despatch upon the Table.
§ SIR HENRY JAMESdeclined to follow the Attorney General through his very long analysis of the facts or to discuss the question of whether Lieutenant Caffin was right or wrong; but he contended that that officer ought never to have been placed in the position in which he found himself of being driven to execute the man in question, whether upon sufficient or insufficient evidence. Our representatives abroad ought not to be called upon to execute summary justice in the protection of the lives or property of British subjects. As for the Attorney General, he appeared, from an answer which he had given to the hon. and learned Gentleman the Member for Chatham (Mr. Gorst) on the 28th of January last, to have once entertained a very different opinion on the question from that which he had maintained that 1196 evening, and he would ask the Government whether they took the view that when a court was held under the British flag, a trial took place, and a man was executed, it was a modified mode of levying war, which was the ground upon which the act was justified by the Attorney General? But he would appeal to a despatch of the Board of Admiralty on the subject, in which it was stated that it would be desirable that the Chiefs themselves should inflict punishment on the perpetrators of those outrages; that such a course would be likely to have a more deterrent influence and be less objectionable than the punishment of Natives on board Her Majesty's ships. It had sometimes been said that the Government threw over the Attorney General; but the hon. and learned Gentleman had his revenge, for he had now thrown over the Government. The hon. and learned Member for Chatham (Mr. Gorst) received scant courtesy at the hands of the Attorney General, who to his opponents was usually extremely courteous, on the ground, probably, that being a supporter of the Government he had no right to express his opinion if it were contrary to that entertained by the Government. The Attorney General said that everything had been done which ought to have been done; but it had occurred to some people that it would have been much better that the person by whom the murder was committed should have been executed rather than the half-proved accomplice, and, as the Admiralty said—"It would have been better if the execution had taken place on shore instead of on board the Queen's ship." That was what the Admiralty said, and the independent supporters of the Government were therefore placed in the somewhat disagreeable dilemma of either agreeing with the Attorney General and differing from the First Lord of the Admiralty, or agreeing with the latter and differing from the former. That was not a pleasant alternative for the hon. and gallant Admiral the Member for Stirlingshire (Sir William Edmonstone) to have put before him. He denied that this really was an attack on the Government—it merely called on the House to express an opinion that more distinct and definite as well as just regulations should be issued to the commanders of vessels on the coasts of semi-barbarous States, and they 1197 should not be required to act in these cases entirely on their own discretion.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)maintained that there was no contradiction whatever between the speech of the Attorney General and the despatch of the Admiralty. The hon. and learned Member for Taunton (Sir Henry James) had omitted to refer to the words "when practicable" contained in that despatch; and it was clear that, in the present case, it would have been impracticable to carry out the instructions given in that despatch. Objection had been taken to the execution of the man on the ground that he was not the actual murderer; but the facts of the case clearly showed that the person hanged had been guilty of murder either by his own personal act or by "aiding, assisting, or comforting" the actual murderer. In every civilized community, persons who aided others to commit murder were regarded in the same light and punished as the actual murderers. With regard to the question of the evidence on the subject, he observed that hon. Members sought to very much undervalue the intelligence of the Native who was hanged, and it had been alleged that he was half-witted. He (the Solicitor General) arrived at a totally different conclusion from the mode in which those statements of his were given, and from the manner in which he afterwards explained what were the full facts; and those statements being true on the face of them, the Native decidedly and strongly implicated himself in the murder. It had been alleged that the murdered man had been engaged in some intrigue; but even if that were so, it would not justify the injured husband in employing two assassins to murder the adulterer. The statement of the man who was hanged proved that he had been present and had taken part in the murder. If Lieutenant Caffin had not taken the punishment of this man into his own hands, he would have been compelled to let him go free, because there was no local tribunal before which to send him for trial, and it would have been useless to expect the Natives to take any part in bringing the man to justice. There was no tribunal in this country that would have had jurisdiction to try him had the offender been brought over here. According to the statement of the mis- 1198 sionary, this was the tenth case of the murder of a British subject under somewhat similar circumstances; and what was done was a military act under military authority in self-preservation. It was just because there was no tribunal to try cases of this sort that the law allowed military officers to interfere and say these crimes should not be committed with impunity. Even in warfare amongst civilized nations it was necessary occasionally to have recourse to reprisals which, under some circumstances, were justifiable; and he could not see therefore why, in dealing with savage tribes, greater accuracy should be observed in such matters as murder. In this case the lieutenant in command appeared to have properly performed his difficult and responsible duty—namely, that of protecting the lives of the Englishmen in the vicinity.
§ SIR WILLIAM HARCOURTreminded the House that the Motion was that an Address be presented to Her Majesty praying that instructions might be issued defining the course to be adopted in cases of this kind. How did the Attorney General meet the Motion? By saying that there was no need of instructions, because everything that had been done was perfectly right, and he justified this affair in omnibus. They had a discussion last year about the Huascar at the end of the Session, and the Attorney General got up and treated the case in the same way and with the same arguments. He said—"This is a case of making war." He seemed to have a notion that Her Majesty's vessels went about all over the globe making war every day whether Her Majesty had declared war or not, and therefore we were not to be surprised at what had happened. It was not the custom of one member of the Bar to say of a brother barrister, as the Attorney General had done of the hon. and learned Member opposite, that he had acted like a County Court attorney; but the Attorney General did that in order to secure a Party cheer from those behind him. In a few weeks after the Attorney General had used last year, in the case of the Huascar, the same argument as he had used in this, about levying war, the Lords of the Admiralty wrote a despatch giving by no means the same kind of approval as the Attorney General had given of the transaction. And 1199 in this case, also, the Lords of the Admiralty had written a despatch in which they said they trusted this example would produce the intended effect; but they desired that, in. future cases, the punishment should if possible be inflicted by the Native Chiefs, as the effect would be more deterrent, and that course would be less objectionable. They also urged the necessity of the greatest caution in dealing with the Natives, which meant that they did not think the greatest caution was exercised in this case. The despatch of the Admiralty plainly indicated a preference for other courses than those which had been adopted in the present case; and he thought, therefore, instructions ought to be issued for the guidance of officers in future.
§ SIR JOHN HAYthought that the despatch of the Admiralty, which, for the first time in the course of the debate, had been referred to by the hon. and learned Member for Oxford (Sir William Harcourt), ran on all fours with the Motion of the hon. and learned Member for Chatham (Mr. Gorst), and therefore no advantage could be gained by pressing his Motion to a division. He believed that the despatch was greatly wanted, and he hoped it would be widely circulated throughout Her Majesty's Navy. He expressed his great regret that one of Her Majesty's ships should have been turned into a perambulating gallows, and that so objectionable a duty as that of carrying out an execution for an offence not committed on board a ship should have been imposed on a commissioned officer of the Queen; but, at the same time, he fully acquitted Lieutenant Caffin of any blame. He was glad that by the publication of the Admiralty despatch the recurrence of such a scene as that which had been witnessed on board the Beagle would be prevented. With all respect to the hon. and learned Attorney General, he could not admit that the rope and the gallows were engines of war. Sinking, burning, and destroying were legitimate operations against an enemy of the country; but to take a man on board one of Her Majesty's ships and to hang him at the yard-arm seemed to him far from creditable to Her Majesty's Navy. He would rather have seen a crowd of Natives fired upon and Nokwai and others, including even innocent people, killed by the legitimate methods of war- 1200 fare than that such a deed as that which was done on board the Beagle should have been committed. [Murmurs.] Yes, he repeated, he would rather have seen that man and others defending him executed by the proper engines of war than that the rope and the gallows should have been put into the hands of a commanding officer of Her Majesty's Navy.
§ GENERAL SIR GEORGE BALFOURthought it was simply horrible, that military and naval officers should be called upon to perform such duties as those of hanging Natives of the Islands for crimes of the ordinary kind, so frequently occurring when Europeans, without the control of their own Government, settled in those Islands; and when they had performed the odious orders issued by their superior naval officer, that their names should be mentioned in the House of Commons and held up before the people of England as those of men who had in themselves done that which was wrong. Lieutenant Caffin should not be censured, for he had simply carried out a disgusting duty, which, in the position he occupied, he was bound to perform by the orders of his commander. He thought there was great reason to complain of the uncertainty in which both military and naval officers were left as to the manner in which they should administer justice on foreign service. The hon. and learned Attorney General had, on a former occasion, referred to the rights and powers possessed by a General in the field, of acting under Martial Law. But it was an entire misapprehension as to this power being legally exercised without the law being declared. No doubt, as the Duke of Wellington stated in the debate on the Martial Law question, which Lord Torrington had declared in Ceylon, the Law Martial was only the will of the General; but that will must be declared, in order that all who offended the Law may know the consequences. Then, as regarded the mode of putting that Law in force, or rather of carrying out the inquiry and punishments—these also must be declared by the General. But then the officer must be in military possession of the territory within which the Law Martial is to operate. He must have all the rights of temporary sovereignty over the people and territory, and thereby be entitled to declare and enforce the new laws which might be 1201 necessary to be established. He remembered well the difficulty experienced in China, in regard to punishing Chinese who offended against the rights which General Sir Hugh Gough possessed by being in military occupation of Ningho and territory adjacent. But the late Earl of Derby, at that time Secretary of State for the Colonies, and holding also the Seals of Office as Secretary for War, sent out instructions to Sir Hugh Gough to declare Martial Law, to give warning thereof to the people, and to announce to the Chinese Commander in the neighbourhood of the determination to enforce that Law. This was a methodical and regular course to follow. It was simply substituting for the Civil and Criminal Law of China another law by the new possessor of the district. That law, though promptly applied, did yet possess some degree of formality and legality. It was owing to ignorance of what officials in military possession of, and in command of, territory were to do when in the field, that caused so many serious difficulties; and, seeing how frequently military officers were so situated, he urged that full instructions should be issued to them on that head, not by any Department, but by the Government. He might also mention that in the evidence given before the Select Committee on the affairs of Ceylon, there was excellent evidence given by Sir Charles Dundas—then either Solicitor General or Judge Advocate General— on the subject of Martial Law. It would be a great and good service to the Military Service, if the Government adopted the clear and useful evidence there recorded, and worked the whole into an instruction for the guidance of both naval and military officers. Until this was done we must expect to have many such horrid irregularities as had been brought to light in this debate.
§ MR. W. H. SMITHsaid, that, so far as his experience went, when Papers were moved for it was understood that they should be furnished as fully and completely as the circumstances of the case admitted. He was not aware that in the present case there were any Papers whatever which could have been produced, but which had not been. He was informed by his right hon. Friend the Colonial Secretary that no hon. Member had moved for the despatches of Sir Arthur Gordon, to which refer- 1202 ence had been made, and that he was perfectly ready to present them if it was the desire of the House. The House would see that Commodore Hoskins was set in motion in the matter by the Consul, that the Consul, in turn, was set in motion by the missionaries, and that the instructions were given, not in consequence of the death of Easterbrook alone, but in consequence of 10 White men having been killed within the nine years during which the missionaries resided in the Island, without any step being taken to bring the perpetrators to justice. His hon. Friend (Sir Charles W. Dilke) asked whether those 10 men had not been more or less concerned in kidnapping? He had no knowledge as to that; but from the fact that Mr. Neilson gave that information to Lieutenant Caffin, and brought it so strongly before the Commodore and the Consul, it was thought, at all events, to be necessary that some steps should be taken to punish unjustifiable murders. The murder of Easterbrook was said to have been committed with less compunction from the idea existing in the minds of the Natives that such crimes could be perpetrated with impunity, seeing that there had been 10 murders committed during Mr. Neilson's residence of nine years in the Island, without anything being done to punish the murderers. The Papers stated that the steps which had been taken in the present case, including the execution, had created a profound impression among the Natives, and, according to Mr. Neilson's idea, a lasting one. He would not follow hon. and learned Gentlemen on both sides of the House into the question whether or not that was a legal act. He preferred to ask the House what ought to be done under the circumstances of the case? The Admiralty had already expressed their opinion as to the course which ought to be pursued. They had done so in plain language, not desiring to censure an officer placed in a position of extreme difficulty, who had felt it to be his duty to execute his orders, nor even to censure those who had given him his orders. The Admiralty had no additional information of the circumstances of the case, which had rendered it necessary that those orders should be given, nor of the circumstances under which the 10 murders to which reference had been made had 1203 been committed. But they had stated frankly, not only to the officers whose conduct was now in question, but to the whole Service—because that document was in possession of every officer in the Service, and especially on the Australian Station — the course which it was their duty to pursue under similar circumstances. No doubt, it would be very much to the honour and advantage of the Service if the instructions now given by the Admiralty could be strictly and carefully observed. He had no reason to suppose that they would not be so observed, and he was satisfied that they would be found to be sufficient for the purpose. The hon. and learned Member opposite (Sir Henry James) suggested that the Government should undertake to issue Orders defining the circumstances and conditions under which officers of the Army and Navy should exercise the great powers intrusted to them; and he had pointed to the fact that those powers had not been defined in the time of the late Duke of Wellington, who was of opinion that they should be defined. Now, if those questions had been more or less in debate for some 60 or 70 years, it would, he thought, be a rash act if he were to undertake, on behalf of the Government, at a moment's notice, to define the circumstances under which officers of the Army or Navy should exercise the powers intrusted to them. Those officers discharge their duties under great responsibility, and must exercise a great discretion; but they were as much under the law of the land as other persons. They were quite conscious of that; and he believed that, on the whole, they performed their duty not only with a view to the interests of their country, but with a view to the interests of humanity at large. They were generally, he believed, as careful of the lives of those who were called savages as they were of the honour, property, and the lives of Englishmen. Those officers protected, and were at this moment protecting, the lives and property of savages who had no power to protect themselves against persons who really were outlaws, although they loved the name of Englishmen. To tie their hands more than they were at present tied would tend to produce consequences far more serious than had occurred in that case. While, then, he regretted what had happened, he was 1204 not prepared to censure the two officers concerned, or to say that under all the circumstances they were absolutely wrong in what they had done. They had been placed in a position of great difficulty; and when, acting on their responsibility, they had done what they believed to be best and right, he could not agree to a Motion which really amounted to a Vote of Censure, and which asked the Government to adopt a proceeding which was, he thought, surrounded with difficulty and danger. Referring to a remark of the hon. and learned Member for Oxford (Sir William Harcourt), he must observe that he could not admit that the Admiralty had cast any censure upon Admiral de Horsey, commanding on the Pacific Station. In conclusion, he hoped that the hon. and learned Member for Chatham would not persevere with his Motion. If it was pressed to a division, he should be obliged to vote against it.
§ MR. HOPWOODsaid, he would refrain from troubling the House with a speech, because the First Lord of the Admiralty, who was the true authority on that subject, and was at variance upon it with the Attorney General, had conceded in the main what was desired. He therefore joined in requesting the hon. and learned Member for Chatham to withdraw his proposal.
MR. GORSTsaid, he would not press his Motion to a division. He hoped the First Lord of the Admiralty would take care that his despatch was communicated to all the officers of the Fleet.
§ SIR EARDLEY WILMOT(who spoke amid much interruption from Members on his own side of the House) said, he was quite aware that, after so long a discussion, the House was impatient for its termination; but having waited for some hours for an opportunity of saying a few words, and wishing to advert to a point in the case which had not been alluded to by preceding speakers, he hoped the House would allow him to make a remark or two very briefly, and he assured hon. Members who were impatient to go away at that hour (8 P.M.) that he would detain them but a very short time. What he wished to observe was that, in the present case, the officers on the station in the South Seas had followed the instructions of the judicial and legal authorities at Sydney. Not long before, two Natives of the Soloman Islands, having com- 1205 mitted an atrocious murder, were taken in custody on board one of Her Majesty's ships to Sydney, and there tried in the High Court. They were acquitted on the ground that the offence had been committed out of the British Possessions, and by persons who were not British subjects. Sir George Innes, the Attorney General, being subsequently applied to by the Commander of the South Seas Station, as to how he should act in another case, replied in a letter, which was to be found in the Blue Book now before the House, that as it was useless to attempt to try such offenders according to law, the Commander must exercise his own discretion in punishing outrages of this nature. Had there been time, he (Sir Eardley Wilmot) should have been glad to refer to the cases which seemed to form a precedent for the conduct of Lieutenant Caffin. But, as it was, he would only add that, looking to those cases, and also to the facts surrounding the present case, acting under orders, as he was, from his superior officer, must be acquitted of any blame whatever. The hon. Member for Chelsea (Sir Charles W. Dilke) had made strictures upon the execution of the brother of the man who had actually fired the shot, and seemed to imply that his offence was of a less grave character; but he (Sir Eardley Wilmot) fully corroborated his hon. and learned Friend the Solicitor General, that one who stood by with an offensive weapon—for he admitted he carried his club—and gave countenance to murder, was equally guilty with the principal, as a participator in his crime. He would not detain the House longer, but he considered that Lieutenant Caffin had entirely done his duty under the circumstances.
§ Question put, and agreed to.