HC Deb 06 August 1832 vol 14 cc1136-56
Mr. Warburton

said, that in rising to present the petitions of which he had given notice, nothing but the necessity of the case could have induced him to come forward at this late period of the Session, and nothing, also, could induce him to contend with the learned Gentleman he saw opposite, except the application and request of the parties interested. He rose to present two petitions—one from Sir Lionel Smith, late commander of the fourth division of the Deccan army in India, who contended that the booty taken at Poonah ought to go to the actual captors of that town. The other petition was that of Sir Thomas Hislop, the Commander-in-chief of the army of the Deccan, who contended that the scheme of distribution approved of by the trustees of the Deccan booty in 1826 and 1828, was not such as they were warranted in ordering. It was almost need-lees to say to the House, that this booty had been taken in the war of 1817, which had been entered upon in order to put down the Pindarrees, and the Mahrattas, who had encouraged them. There were two armies in the field, one commanded by the Marquess of Hastings, called the grand army, and the other the army of the Deccan, commanded by Sir Thomas Hislop. There had been a contention before the Lords of the Treasury upon an appeal from a decision of the Marquess of Hastings, whether there were actually two armies in India; the Marquess of Hastings terming both a combined army, of which he was Commander-in-chief, while Sir Thomas Hislop contended that the army of the Deccan was a separate army, and that he, as Commander-in-chief of that army, was entitled to the full-eighth of the booty captured by it. The Marquess of Hastings had taken the field in the month of September, and his, called the grand army, certainly having achieved great victories, was broken up in the month of February following; while Sir Thomas Hislop took the field in the month of August, a month before the Marquess of Hastings; and having, with the Deccan army, achieved victories still more decisive, remained in the field until the latter end of March, six weeks longer than the Marquess of Hastings. The booty captured was very great. That taken by the Deccan army was very large—according to the Returns about 850,000l. or 900,000l. At first, the Marquess of Hastings had taken a very liberal view with respect to the Dec-can army, and it appeared, both from private correspondence and from his general orders, that he had no intention of contending for any share of the prize money. In his published letter to the Adjutant-general of the Deccan army, written in 1819, he said, that neither he nor the Bengal army had any thing to do with what had been captured by the army under Sir Thomas Hislop, with this exception, that any division of the Bengal army which had actually co-operated with Sir Thomas Hislop should have a share. This liberal decision of the Marquess of Hastings did not, however, last long. The prize money was found to be very large, and as it was discovered to grow larger, the noble Marquess's liberality decreased. In his valedictory address to the army in the month of February, the Marquess first used the term, "combined army," and soon after, in the month of April, he described Sir Thomas Hislop's army as "a corps of the combined army." The effect of this change in the language of the noble Marquess would be, that he would take one-eighth of the booty captured by both the armies, making a difference of 100,000l. in his favour. On the 22nd of June he sent a despatch to the East-India Company, desiring them to take the opinion of counsel upon the propriety of his decision; and he afterwards sent a despatch to the same effect to Sir Thomas Hislop, on the ground that all prize taken belonged to the King, and that its division amongst the army was a matter of grace and favour. The details of the whole matter were laid before the Lords of the Treasury in the years 1822 and 1823, five years after the actual capture. A Treasury minute under warrant by the sign manual of the 22nd March, 1823, embodied the principle upon which the distribution was to be made. The principle laid down in the first minute completely established that which Sir Thomas Hislop contended for, as it declared that the forces engaged were not a combined army, but that the grand army in the north, and the army of the Deccan in the south, were to be considered as two independent armies. It also laid down the principle of actual capture, as contrasted with that of constructive capture put forward by the Marquess of Hastings. The Treasury minute was guided in principle by one of the decisions of the learned Judge, Lord Stowell, who laid down the following principles on the law of capture, in a case which came before him:—'The Act of Parliament and the Proclamation give the benefit of prize to the takers. By this term, are not only to be understood those who actually took possession, or those affording an actual contribution of endeavour to that event—either of those persons are naturally included under the denomination of takers; but the courts of law have gone further, and have extended the term "takers" to another description of persons—namely, to those who not having contributed actual service, are still supposed to have rendered a constructive assistance, either by conveying encouragement to the captors, or intimidation to the enemy. Capture has, therefore, been divided into capture de facto, and capture by construction. I need not say that the construction must be such as the courts of law have recognized, and not a new and unauthorized construction. For, as the word has already travelled a considerable way beyond the meaning of an Act of Parliament, the disposition of the Court will lean not to extend it still further, but to narrow it, and to bring it nearer to the terras of the Act than has been done in some former cases.' The Treasury minute and the warrant, adhering to Sir William Scott's opinion, gave a practical enforcement of those principles. The warrant proceeded to state—'That their Lordships are of opinion that the most just and equitable principles of distribution will be to adhere, as nearly as the circumstances of the case will admit, to that of actual capture; and although they are aware that the principle of constructive capture must, under certain circumstances, in a degree be admitted, the disposition should be to limit, rather than to extend that principle. The result of the battle of Mahidpore, and the occupation of Poonah and Nagpore, should belong to the divisions of the Deccan army engaged in the respective operation in which the same was captured; but that, as the division of the Bengal army under General Hardiman appeared to be put in motion for the purpose of co-operating directly in the reduction of Nagpore, and to be actually engaged with a corps of the enemy antecedent to the surrender of that place, this division appears to my Lords to be justly entitled to share in the booty captured at Nagpore. All other booty arising from the operation against the Mahrattas in the years 1817 and 1818, as may now be subject to his Majesty's royal disposition, should be granted to such divisions of the grand army under the command of the Marquess of Hastings and of the Deccan army under the command of Sir Thomas Hislop, as may respectively have captured the same.' It therefore appeared, with regard to the contention between the Marquess of Hastings and Sir Thomas Hislop, that the Treasury minute stated, that Sir Thomas Hislop was commander of a separate army, called the Deccan army. It then proceeded:—' As the Commander-in-chief and general staff belong to each division, they are entitled to participate in the booty which may arise from any capture by any division of the army of the Deccan, until the said army was broken up on the 31st March, 1818.' Thus it further appeared, that all booty taken before that time was to be given to the army of Sir Thomas Hislop; thus so far making out almost every point that that officer urged. The warrant further went on to say,—' The bounty taken by Deccan divisions is not to be shared as common fund among the whole Deccan army, on account of co-operation; and they can- not sanction an agreement founded on such a view, because co-operation, instead of actual capture, has been assumed as a principle. Then the forces of all the presidencies engaged in the combined operations of the campaign must have been included.' The Treasury decided then, according to the Marquess of Hastings's original decision—' that Sir Thomas Hislop and his staff were entitled to one-eighth of all booty taken previously to the 31st March, 1818, when the army broke up.' So far as this went, it was consistent with justice; but there was still a casus omissus, for a large part of the booty at Poonah was not obtained until both armies had quitted the field. There was a large amount of booty, consisting of tribute, and rents, and deposits of treasure, which was not obtained until the July following, when both the armies had been dissolved. Thus there remained a large proportion not disposed of under the principle laid down. When the trustees saw this, they reported the facts to the Treasury. In 1826 they stated, that the whole proceeds had been converted into money; but adverting to the fact of this casus omissus, applied for instructions to the Treasury. The Lords of the Treasury, after hearing counsel on both sides, gave, in 1826, fresh directions, which were, "that the booty taken in the daily operation of the troops should be distributed according to the doctrine of actual capture," and then went on to say:—' With respect to those parts of the above property, as to which proof cannot be established that it was actually in Poonah when that place was captured, such monies and effects must be considered as having been acquired by the general results of the war, and as such ought to be distributed among the forces of all the presidencies engaged in the combined operation of the campaign.' This was perfectly just, as it would be difficult to say which of the armies had contributed most to this object. There was, however, amongst these monies, a large amount of treasure belonging to the Peishwah, which, upon leaving Poonah, he was obliged to deposit with certain bankers in that town. It was not until the July of that year that Captain Robertson, who was appointed Commissioner for the affairs of the Peishwah, discovered the existence of these sums in the hands of these bankers. The minute of 1826 directed, That any part of this property which can be proved to have been in Poonah at the time when the place was captured—namely, on the 17th November, 1817, ought to be distributed to the captors of Poonah, according to the terms of the minute of the 5th February, 1823, upon the principle of actual capture; but that in all cases in which such proof cannot be established, the monies or effects must be considered as having been acquired by the general result of the war, and as such, ought to be distributed amongst the forces of all the presidencies engaged in the combined operations of the campaign.' This admitted, that if any sums were in Poonah at the time of the capture, it belonged to the captors. Sir Lionel Smith was the commander of the fourth division of the Deccan army, which took Poonah. Sir Thomas Hislop was the Commander-in-chief, and if it were proved that the treasure was in Poonah, then the distribution ought to be amongst the fourth division, giving one-eighth to Sir Thomas Hislop. As soon as this determination was made known to Sir Lionel Smith, who was then in India, he took measures to obtain evidence to ascertain whether or not the treasure had been actually in Poonah at the time of the capture. But if the House considered the time between the year 1818, and this minute of the Treasury in 1826, he thought that the greatest possible latitude ought to be allowed to Sir Lionel Smith, and that the evidence he was enabled to obtain after the lapse of a period of eight years, ought not to be examined with too great strictness, and, indeed, the greatest indulgence was, he thought, due to Sir Lionel Smith, if there should be any defect found in his evidence. Captain Robertson, who discovered the treasure, was agent for the East-India Company, who claimed it for themselves: so that it was not the interest of Captain Robertson to collect any evidence for the captors, as he (Captain Robertson) was to receive five per cent for himself on all that he collected for the Company. This was another of the many difficulties with which the captors had to encounter in getting evidence of their claim. Difficult as this was, however, Sir Lionel Smith, in 1828, sent home evidence on oath from five native bankers, which showed that 8 lacs and 72,000 rupees were in their hands, as the property of the Peishwah at the time of the capture of Poonah. In 1830, he transmitted other evidence, not on oath—a part of this being that of the secretary of the Peishwah himself, in which it was stated that 500,000 rupees more of his treasure were in the hands of native bankers at Poonah, at the time of its actual capture. So that there were 1,300,000 rupees in all, which the captors claimed, as being in Poonah at the time of the capture. The kind of evidence on which this latter part of the case rested, was not such as was desirable, if better could be obtained; but it should be recollected, that it was such as would be received in any of the courts in India, and that great allowance should be made for the circumstances under which the claimants were placed. If, therefore, objections were made, as they had been, to such evidence being received here, time should be allowed to those who tendered it, the more particularly, as three years were allowed to elapse, from the time of its being sent in 1828, to the arrival of Sir Lionel Smith, in May, 1831, before the objection was made. On the arrival of Sir Lionel Smith, he applied to the trustees, and they referred him to the Treasury, by which he was referred to the law officers of the Crown. The petitioners complained, that when the evidence was sent to the law officers, it was accompanied with comments as to some parts made by the Solicitor to the Treasury. Now, if the evidence were referred to the law officers of the Crown as counsel, an opportunity should have been given for employing counsel on the other side. But if the evidence and comments were sent to them as a jury to decide, still the parties interested ought to have been allowed counsel to rebut the comments so made; but whether the evidence were sent as to counsel or jury, such comments were, he contended, unfair, unless the petitioners had an opportunity of answering them. He now came to the comments themselves. One of the objections made in them was, that declarations were not made by the native bankers themselves, but by their chief clerks or agents. He apprehended, however, that the objection could not be maintained. Would such an objection be for a moment relied upon, against evidence tendered of the transactions of a banker in London on the testimony of one of his chief clerks or agents? It was next objected that Captain Robertson ought not to have been the party before whom these declarations should have been sworn. This objection he also contended was riot a fair one. It appeared that when Captain Robertson found that the money did not belong to the Company, he exerted himself to procure evidence in support of the claim of Sir Lionel Smith; but surely that did not disqualify him from receiving the depositions, for he was a party perfectly disinterested. The next objection was, that the evidence was not sufficiently particular as to the time of the money being left with the native bankers, and the date of its discovery; but this he contended ought to have been received with great allowance in favour of the claimants—first, because it could not be a matter of surprise that the native bankers should be very unwilling to discover where the treasure was; and next, there were good reasons why the fullest particulars should not have been obtained as to the time of placing the money in the bankers' hands. But, in both cases, the claimants were entitled to the greatest indulgence in this respect, as they had not had any notice that better evidence was wanted for nearly eleven years. The last objection was curious in itself. It was, that the principal parts of the evidence relied upon was Indian evidence. Why, from the nature of the transaction, it could rest on no other for the most part. If this were made a ground of objection, it might as well be said at once, that all evidence should be rejected, and that the money should be divided amongst the whole Indian army. Under all these difficulties what did Sir Lionel Smith do? The Treasury had decided that the treasure found at Poonah should be divided amongst the Indian army engaged in the campaign of 1817, unless it could be shown that the treasure was in Poonah at the time of the actual capture, of which proof was to be adduced by the parties claiming. On the 10th November, 1831, Sir Lionel Smith received a note from the Treasury, written by their Lordships' command, stating that the evidence transmitted by him had been laid before the law officers of the Crown, who had advised that they had considered the evidence as to the booty being "in Poonah at the time of the surrender; and that although the evidence raised strong doubts whether such might not have been the fact, yet they were of opinion it was not so made out as to authorize the distribu- tion to the Deccan army on the ground of actual capture." Their Lordships, at the same time, intimated that they concurred in this opinion. In the same month Sir Lionel Smith presented a memorial to the Treasury, praying to have a revision of this decision, and to be heard by counsel, or to have time to adduce further evidence. This and a subsequent memorial were without any other effect, save that an intimation, that if Sir Lionel Smith could produce any fresh evidence before the time of distribution, it would be received. It was unnecessary for him (Mr. Warburton) to point out the difficulty of obtaining any additional evidence in so short a time. The petitioners then sent a memorial, praying to be heard by the King in Council; but this memorial was not heard, on the ground, as the petitioners were given to understand, that the Privy Council had no jurisdiction in the case. On the 23rd June last, Sir Lionel Smith received a letter from the Treasury, stating that a distribution was about to be made. He soon after sent a memorial, praying to be heard as to the question of the jurisdiction of the Privy Council in his case. Even this was refused; and then came the conclusion of the drama, which was, that an order, under the sign manual, was issued on the 31st July, directing the distribution of the money; and by an order in the Gazette on the 3rd instant, it was intimated that the distribution would begin on the 7th instant. Now he must contend that this was not fair dealing to the parties whose petitions he was about to present. He thought all the probabilities and presumption were in favour of the petitioners. If the treasure in dispute was not at Poonah at the time of the capture, where was it? There was no evidence to show that it was not, and certainly it was most improbable to suppose, that if it was not there at the time, the Peishwah would send it there after the capture of the town by our troops. The presumption, in addition to the direct evidence given by the petitioners, from the agents of the bankers themselves with whom the treasure had been deposited, was, he thought, conclusive that the money was in Poonah at the time of the capture. The first ground of complaint was, that the petitioners were not allowed to argue their case fully before a decision was given; and next, they complained of the warrant, which in this case prevented their appeal to the Privy Council. He knew it was said, that the Privy Council in this case had no jurisdiction, but this, he maintained, should have been allowed as a matter of argument, either before the law officers of the Crown, or before the Privy Council itself. The ground on which the want of jurisdiction of the Privy Council was maintained, was the warrant in 1823, which said, that if any dispute should thereafter arise as to the distribution of the money, it should be referred for decision to the Lords Commissioners of the Treasury. He did not dispute the fact of the existence of this warrant, but he did dispute that it could take away the right of an individual to appeal to the King in Council, in a case which came generally within its cognizance. He would maintain that the Privy Council ought to have jurisdiction in this case, on the same ground as appeals were made in claims of prize-money, from the decisions of the Admiralty courts. But he would further contend, that if the warrant of 1823 could not be acted upon without manifest injustice to individuals, as in this case he maintained it could not, it ought to be revoked. The hon. Member cited a case connected with this very transaction, in which the present Lord Chancellor held, that if the effect of the warrant of 1823 were such as he (Mr. Warburton) had described it, it was in the power of the Crown to revoke it, up to the very last moment before the distribution; and considering all the circumstances of the case, he (Mr. Warburton) did hope that Government would see the necessity of adopting this course. He thought that much was due to the merits of Sir Lionel Smith. Independently of the great skill and bravery which he displayed throughout the whole of that campaign, great credit was due to him for the address which he showed in preventing the soldiers from plundering when they took Poonah. One of the great arguments addressed to the troops on that occasion was, that their claims would be amply considered when the distribution of the prize-money took place. If, after this, it were now to go forth to the world that the claims of officers who had so exerted themselves should be neglected, it might happen that on future occasions they might not be so well disposed to undertake the arduous task of restraining their soldiers in moments of victory. Having stated the case of Sir Lionel Smith, he would now call the attention of the House to that of Sir Thomas Hislop. That gallant officer complained that great injustice was done to him in the proposed plan for the distribution of the prize money. It was well known that the war, in the course of which Poonah was captured, was conducted by two separate armies—the grand army, as it was called, under the command of the Marquess of Hastings, and the other, called the army of the Deccan. These were two distinct and separate armies under their respective Commanders-in-chief. Now the capture of Poonah was effected by the fourth division of the army of the Deccan alone, but, upon the principle of constructive capture which had been adopted by the Lords of the Treasury, the whole of the grand army was to be admitted to a participation of the booty found in that place; and, in this decision, the Marquess of Hastings was admitted to be entitled to one-eighth of the whole sum as Commander-in-chief of the Bengal army. Now this, he contended, was unjust to the Commander-in-chief of the Deccan army, for even admitting the principle of constructive capture, still it should be asked who were the commanders of the Bengal and Deccan armies? The Marquess of Hastings, who at the nearest point had never been within 300 miles of the operations of the Deccan army, had left the field altogether long before Sir Thomas Hislop, and yet his executors were allowed about 77,000l. out of the whole produce of the booty. Surely, if the doctrine of constructive capture were admitted, Sir Thomas Hislop, as the Commander-in-chief of that army, the fourth division of which had captured Poonah, was entitled to the benefit of it, and that principle was admitted in his case, as far as his being allowed his share, as Commander-in-chief, of the booty taken in the daily operation of the Deccan army. Not only was this proceeding prejudicial to Sir Thomas Hislop in a pecuniary point of view, but it was an act of injustice and unfairness towards him. Sir Thomas Hislop showed that there was no combined army; that the statement on that point was a mere fiction, and he proved that there were two distinct armies, of one of which he was the commander. The Gazette also affirmed that which the Lords of the Privy Council, by their acts, denied. He had now finished his case, and he regretted greatly that it had not fallen into the hands of some gentleman better able to do it justice than he was. There were two appeals before the Privy Council, the object of which was to stay proceedings under the warrant of distribution. Sir Lionel Smith demanded a substantive share of the prize-money captured at Poonah, and Sir Thomas Hislop asserted his right to receive the one-eighth of the prize-money captured by the force which he commanded. In his (Mr. Warburton's) opinion, no distribution ought to be made, until those gallant officers were heard before that high court of appeal to which their petitions were addressed. He should, in the first instance, merely move that the petition be laid upon the Table, but he should afterwards move an humble Address to his Majesty, praying him to suspend the execution of his Royal warrant of July 31st, 1832, relating to the Distribution of the Deccan Booty, so far as relates to Sir Lionel Smith and Sir Thomas Hislop.

Petition brought up.

The Solicitor General

could assure the hon. member for Bridport that he did not mean to enter into a legal discussion with reference to this question. Whatever obscurity some parts of the subject might be involved in, there was one point upon which, he believed, no difference of opinion could exist, namely, the anxiety of the Crown to do every thing that could be done to insure the proper distribution of this prize-money amongst the gallant claimants. There were, in this case, two petitions. The one, that of Sir Lionel Smith, who claimed a considerable portion of the booty captured in Poonah by the army under his command in 1817; the other, that of Sir Thomas Hislop, who complained that injustice had been done to him by the Treasury warrant, which gave to the late Marquess of Hastings, as Commander-in-chief in India, a very large share of that booty, although the noble Lord and his army were far removed from the scene of action. The delay in settling this question of prize-money had been much censured, but there were circumstances connected with it which rendered delay unavoidable. Antecedently to any warrant for the distribution of the prize-money being promulgated, a most important question was to be decided—which question, it must be observed, was not, and could not, be decided until last year. The assignees of Narroba, who had been the minister of the Peishwah of Poonah, claimed the property. They declared that it ought not to be seized by the army, because it was the private property of Narroba, to which his representatives were fairly entitled, under the, article of capitulation agreed to at the time of the capture of Poonah, those articles specifying that private property should be respected. It appeared that, on the 16th November, 1817, Narroba left Poonah, and took the command of the fort of Reighur, which he held until the month of May or June following. After the capture of that fort by Colonel Protheroe, Narroba returned to Poonah; and it was asserted that the treasure which had been discovered at Poonah, after his return, had in fact, been surreptitiously conveyed away from the fort of Reighur, by Narroba's attendants, and was not in Poonah at the time of its capture. The treasure was found by an officer of the name of Robertson; who was, he believed, the political agent of the company at Poonah. That officer had, it appeared, considered the various circumstances connected with the ownership of this treasure; but he would say that nothing appeared to him more unsatisfactory than this part of the case. Captain Robertson procured a knowledge, and got possession of a very large treasure. As the means used to procure that knowledge were not under the consideration of the House, he should allude to that point no further. Captain Robertson expressed his opinion that the treasure was not in Poonah at the time of its capture. Now he would not say whether that opinion was correct or not; or whether Captain Robertson's judgment was right or wrong; but it was very evident that this circumstance heightened the difficulty of the case. In consequence of this statement, the East-India Company interposed, and relying on the opinion of their own agent, they claimed the treasure as an arrear of tribute. This threw another difficulty in the way of decisions. At length, on the 1st of March, 1823, a minute of Treasury was promulgated, which laid down this principle—that, with reference to the money discovered at Poonah, it could only be claimed by Sir Lionel Smith, if it were in Poonah at the time that place was captured; and, in January, 1826, another minute was agreed to, which recognized the principle contained in the former. No doubt, therefore, could exist, as to the principle on which the case was to be decided; and it was incumbent on Sir Lionel Smith to make out the affirmative proposition, namely, that the treasure was in Poonah at the time of its capture. This was a difficulty which opposed itself, not only to Sir Lionel Smith, but to every claimant in this case. The principle laid down in 1823, and recognized in 1826, remained unaltered; and although he felt the difficulties which this gallant officer had to encounter in making out an affirmative case, still it was imperative on him to do so. The gallant officer had had recourse to the evidence procured subsequently by Captain Robertson to substantiate his claim. He was sorry that the gallant officer had adopted such evidence. If it were English evidence, he could not but view it with doubt and suspicion, and he felt still more doubt and suspicion when he considered that it was Indian. The vivâ voce evidence was supported by what was called documentary evidence; though it was not what, in this country, would be called documentary evidence. Then, he would ask, if Sir Lionel Smith had not made out his claim, and it rested with him to prove the affirmative, was this money never to be divided? If they argued that there was a probable case for Sir Lionel Smith, that there was a probability that the treasure was in Poonah when that place was taken, might it not also be argued, as was asserted by Colonel Protheroe, that it was removed from the fort of Reighur when that post was surrendered? Was it not probable that Narroba, when he proceeded to Poonah, thought that, in thus placing himself in the lion's jaws, he should remove all suspicion as to his wealth? Having taken such a step, was it not likely that he would remove his treasures with him? But whilst he lamented the difficulties with which the case was surrounded, he would ask, must not those difficulties be removed? And if so, by whom were they to be removed? Certainly, by Sir Lionel Smith. The place was captured on the 17th November, 1817, and it rested with the claimant to make out his exclusive claim to this treasure, by showing that it was in Poonah when the garrison surrendered. Where, he would ask, were these inquiries, which had lasted so many years, to end? He would not object to further inquiry, if he could at all see his way out of it, if those who demanded it would declare what parties were hereafter to be examined, and would give them an idea as to the credibility which might be attached to their evidence. What testimony were they likely to procure at Poonah in 1833 or 1834, that was likely to outweigh what was given at the time, and when the British power was paramount there?

Sir John Malcolm

said, the peculiar situation in which he was placed, in consequence of the petitions then before the House, would, he hoped, excuse him for making a few observations on this subject. Independent of the command which he himself had held under Sir Thomas Hislop, in the Deccan army, he also held a situation at the head-quarters, which entitled him to a share in the prize-money, as well as the petitioners. But, as it was a mere personal claim, he had not pressed it; and the more especially, as he had been made Governor of Bombay. He had resided for a considerable time at Poonah, and was conversant with the evidence which had been there given upon this subject. The hon. member for Bridport had said, that Captain Robertson had a direct interest in procuring this money, because he would receive five per cent for all that he succeeded in recovering. That, however, was not possible, because, as a public officer, he was bound to adopt every means to recover the money, which appeared to belong to the Government for which he acted, uninfluenced by any reward or motive beyond the actual pay which he received. Captain Robertson was a man of too much honour and integrity to do any thing which could be fairly censured. With respect to Sir Lionel Smith, he got together the best evidence that could be collected at the time. The Solicitor General said, that Sir Lionel Smith should prove the affirmative. Now he (Sir J. Malcolm) conceived, that Sir Lionel Smith had, so far as it was possible, proved the affirmative. The Solicitor General had also observed, that he felt strong doubts as to whether the treasure was or was not in Poonah at the time that place was taken. Now, he looked upon the existence of these doubts as the strongest part of Sir Lionel Smith's case; because, where these doubts existed, they might be very fairly supposed to excite doubts in the minds of others as to whether the Government was about to make a just decision or not. Looking to the evidence, the impression on his mind certainly was, that the treasure was in Poonah at the time the place was captured. When doubts existed, the safest way was to take time, and to endeavour, by further inquiry, to remove those doubts.

Lord Althorp

said, that in this case a solemn appeal had been lodged before the Privy Council; and the question for the Government was, whether this appeal having been lodged, it was proper to proceed with the distribution of the prize-money? Under the peculiar circumstances, it appeared to him, that it would be wrong to go on with the distribution; and therefore he would not resist the hon. Member's proposed Motion for an address to the Crown. He thought it only consistent with justice, that the appeal should be decided before the distribution took place. He could not, however, agree that the parties in this case had been harshly treated. A great deal of time had been given to them, and every facility had been afforded, to enable them to substantiate their claims. He did not see that there was any necessity to send out to India for further evidence, in illustration of this case. If such evidence even could be got there—and that was more than doubtful—a long period must elapse before it could be procured; and, as far as he had considered the case, it did not appear to him that it would be any way useful towards promoting the ends of justice, to send out again to India to procure evidence with regard to it. The case would be again brought before the Privy Council by a solemn appeal, and a decision would be made upon it there, which, in his opinion, ought to be a final one.

Mr. Hume

said, that he was anxious to call the attention of the House to the case of the unfortunate Narroba, the private treasurer of the Peishwah at Poonah, from whom the sum now claimed as prize-money had been principally taken. Poonah surrendered in November, 1817; the money was not seized till 1818 by Mr. Robertson, who was appointed political agent at Poonah, with instructions from Mr. Elphinston, giving him the power of an absolute monarch. According to these instructions, he was to punish resistance to his authority, by martial law, as acts of rebellion. He might, in truth, put to death as many individuals as he pleased. Some time after his arrival, he was informed that Narroba, who had been the banker and private treasurer of the Peishwah, had certain money in his possession. On this he sent for Narroba, long after all hostilities had ceased, and questioned him about the circumstance, on which Narroba admitted that he had money, but stated it to be his own, to the possession of which he was entitled under the proclamation of Mr. Elphinston. Captain Robertson, however, sent him to prison, seized all his treasure, books, and papers, and put his head clerk in irons. A more iniquitous proceeding than this never took place. Narroba's wife was under the necessity of borrowing a sum of twenty rupees, although he was himself worth nearly half a million of money, and, at length, in order to regain his liberty, he was compelled to sign a document, authorising Captain Robertson to do what he pleased with the money that had been seized, which amounted to about 370,000l. Thus this unfortunate man was deprived of the whole of his property; and, therefore, it was most important, if there was to be another investigation of the case, to reconsider whether justice did not demand that this money should be restored to the heirs of Narroba. Not expecting that this part of the case would be entered into, he had not brought down to the House his copy of the papers, he could not enter minutely into the question, but he must ask, when was the inquiry to end? What new parties were to be examined? To whom was this money to be given? They ought not to put an end to this transaction, and make a final division of the money, until they were satisfied that the money ought to be divided. It appeared to him (Mr. Hume), that there ought to be a revision, and a re-consideration of this case, in order to determine, not whether this or that party was entitled to the division of this money, but whether, in justice and in honesty, it should not revert to the party from whom it had been originally taken. The Solicitor-General had said, that the question, was whether one or both of the armies was to have this sum divided amongst them, but he (Mr. Hume) would say, that neither of them should have it if they were not entitled to it. It was only necessary to refer to the language employed by Sir Edward West, in pronouncing the judgment of the Supreme Court of Bombay upon this case, to see the manner, the illegal and tyrannical manner, in which this property had been obtained from the unfortunate Narroba. Sir Edward West, in pronouncing the judgment of the Court on that occasion, said, 'The only circumstance from which the defendants could presume it was the Peishwah's money was, that Narroba had been, nearly up to the breaking out of the war, the Kasgeet, or private treasurer to the Peishwah. From this circumstance alone, a vague suspicion that Narroba had some of the Peishwah's money seems to have suggested itself to Lieutenant Robertson, and to have led him to all these extraordinary proceedings. Even at this day the defendants have not been able to adduce any evidence that the money seized was the Peishwah's, except the supposed admissions or confessions of Narroba, obtained from him after the seizure, by means the most illegal and oppressive. Many months after Poonah had been in our undisturbed and peaceable possession, many months after Mr. Elphinston's proclamation, in which he promises that all property, real and personal, shall be protected, and that courts of justice shall be immediately established, and many months after their actual establishment in Poonah, and the adjacent country, (when the inhabitants had as much right to the protection of the Courts of Justice as the inhabitants of Bombay,—Narroba, a person of high rank in the former empire, without even the imputation of any offence, and without the form or pretence of any legal proceeding, is taken from his house and wife and family, and thrown into the common gaol; his gomasta shares the same fate, with the additional severity of being kept in irons): Narroba's house is entered by a military force, his treasure is taken, without a shadow of evidence that it was not his own, and his family reduced to a state of destitution so complete, that his wife is under the necessity of borrowing twenty rupees. They are kept in prison many months, during which Captain Robertson endeavours to obtain admissions from them to justify these acts; and in this Court, the defendants offer in evidence, a paper signed by Narroba's gomasta in gaol, dictated to him, in the presence of Captain Robertson, admission obtained from Narroba in gaol, and the bond by which Narroba submits himself to whatever their honours might please to order to be done to him. Even after his release, the proceedings are equally extraordinary. His papers having been seized by Captain Robertson, he is interrogated as to the most intricate accounts of immense sums, and of many years; and thus, by an inversion of the most obvious rules of justice, his property is first seized and detained, without even a pretence of any right, and then he is required to show his own title to it, and that after he is deprived of the means of so doing by the seizure of his papers and accounts.' Upon the occasion when Sir Edward West made these remarks, the King's Court of Bombay, after hearing all the evidence, solemnly decided against the claims of the hon. Stuart Elphinston, and Captain Dundas Robertson. An appeal from that judgment was transmitted to the Privy Council, and Lord Tenterden, in pronouncing the decision of the Privy Council with regard to it, recommending the Crown to reverse that judgment, grounded that decision alone, upon the incompetency of the Court of Bombay to entertain the case, and upon the fact, "that this booty had been captured in a perfectly hostile manner, non flagranti sed nondum cessanto bello," though seven or eight months had elapsed from the capture of Poonah, up to the time when this treasure was seized. He hoped, therefore, that it was not too late to give a hearing to the case of the unfortunate Narroba before the Privy Council, that its merits would be fully investigated, and that justice would at length be done in a case of such injustice and oppression.

Colonel Sibthorp

said, that it would be extremely hard upon the claimants for this booty, if the distribution of it were to be again deferred until an indefinite period, in order that there should be another hearing before the Privy Council, and he therefore thought the noble Lord should state, when this point would be decided, and when there would be a prospect of the payment of the money to the claimants. He did not object to the Motion of the hon. member for Bridport, but he really was of opinion, that the noble Lord opposite should now fix a time, beyond which the claimants should no longer be kept out of their money.

Colonel Evans

maintained, that the Marquess of Hastings had not the slight- est claim to any portion of this booty as Commander-in-chief. The Commander-in-chief of the army of the Deccan, by a division of which the capture of Poonah was effected, was Sir Thomas Hislop; and the Marquess of Hastings, though Commander-in-chief of the King's troops in India, and Commander-in-chief of one of the two armies employed in this war, the grand army, was no more Commander-in-chief of that portion of the Company's forces called the Deccan army, than Sir Thomas Hislop was Commander-in-chief of the grand army. The hon. Member referred to different Orders of the Day, issued in the course of this war, in proof of his statement, and concluded, by asserting, that according to all the evidence, Sir Thomas Hislop had as good a right to be considered the constructive captor, as Sir Lionel Smith was acknowledged to be the actual captor of the booty in question.

Lord Althorp

apprehended, that there could be no doubt whatever that the Marquess of Hastings was the Commander-in-chief of the whole array on this occasion. The noble Lord also referred to general orders of the day, then issued by the Marquess of Hastings in proof of that fact. His hon. friend, the member for Middlesex, was very desirous that the Privy Council should take into its consideration the claims of the representatives of the banker Narroba, but those claims had been already decided upon. The decision of the Court of Bombay had been reversed by the Privy Council, on the ground of the incompetency of that Court to entertain the question. The proceedings of that Court were accordingly quashed, and the only question that now remained for revision related to the manner in which the money was to be divided. When that point should be again brought before the Privy Council, it would pronounce definitively upon it, and in a manner, he was sure, that would meet the justice and merits of the case.

Sir Charles Forbes

said, that he agreed in every word that had fallen from the hon. member for Middlesex, with regard to the case of the unfortunate Narroba, and the atrocious and abominable tyranny that had been practised in that instance, and he had only to regret, that he feared the door was now closed against any inquiry on behalf of the representatives of that ill-used and most tyrannically treated individual. It was a disgrace to the British name and character, that such enormities should have been practised; and it was still more disgraceful that the Privy Council should have indirectly lent its sanction to the enormity of such proceedings. He understood, that when this case was in discussion before the Privy Council, the enormities disclosed in the course of it, as practised towards this unfortunate man, excited no observations or animadversions whatever. There never, in truth, was a greater anomaly, than such a Court as the Privy Council deciding in cases like this, and he thanked his God that he was not a member of it. The decision of the Privy Council in this case would open the eyes of the people in India, and would prevent many similar appeals being made from that quarter to the King in Council. He repeated, that he feared the door of inquiry was closed against the Representatives of the unfortunate Narroba; but, at all events, he did hope that the legal expenses to which his Representatives had been put, in prosecuting his claims, would, like those of the other parties, be defrayed out of the funds which had been taken from this unfortunate man. He was glad that the enormities practised in that case, and the conduct of Captain Robertson, had been at length brought before Parliament, The people of India would be rejoiced to find that such things were not suffered to pass without animadversion in a British House of Commons.

Mr. Warburton

did not feel it necessary to make any reply, after what had fallen from the noble Lord opposite (Lord Althorp).

Petition to be printed.

Mr. Warburton

then moved, that an humble Address should be presented to his Majesty, praying his Majesty to suspend the execution of his royal warrant of the 31st July, 1832, directing the distribution of the Deccan booty, until one or both of the petitions, addressed by Sir Lionel Smith and Sir Thomas Hislop to the King in Council, shall have been heard and disposed of.

Motion agreed to.