§ MR. DUDLEY FORTESCUE
rose to call attention to the court-martial on Colonel Crawley; and to move an Address for copies. The hon. Member said, he had a painful sense of the disadvantages under I which he laboured in doing so, for he was fully aware of the reaction of feeling which, at all events, in the higher classes of society had taken place on the subject; and if he were at liberty to consult his own inclination, he should gladly have abstained I from reverting to it. But after the distinct pledge which he gave last year, and after the strong appeal which had been made to him by Colonel Crawley himself, in his defence at Aldershot, when he said that some public explanation was due alike to the honour of Mr. Fortescue and to the dignity of Parliament, he felt it was impossible to remain altogether silent. Perhaps he had the stronger claim to the indulgence of the House from the opportunity, which he sought some time ago, having been denied him of explaining and vindicating in the leading organ of the press his original statement, an opportunity which, if it had been afforded to him, would in all probability have saved both himself and the House from the infliction of the present address. At the outset, however, he wished to disclaim any intention of calling in question the verdict of the late court-martial. That verdict he believed to have been honestly arrived at. There was a conflict of evidence, on which, in accordance with the just and well recognized principles of our law, the construction most favourable to the accused might fairly be put; and whatever, after a closer study of that evidence than probably any other Member had thought it worth his while to bestow upon it, his own individual opinion might be, he was not in I any way called upon to pronounce that opinion there, nor should he presume to I obtrude it upon the House, In any remarks, therefore, he might make on the ! present occasion, he wished once more distinctly to disclaim any intention to reflect upon Colonel Crawley, or to impugn 19 the decision of that tribunal before which he had been tried and acquitted. But as the acquittal of a prisoner arraigned for certain acts was quite compatible with the commission of those acts by other parties, though the person accused might have been free from all responsibility for them, and as the language which had been held respecting his statements, and of which he might take as a sample the expression used in another place of "a ridiculous delusion," had placed him on his defence, he trusted he should not appeal in vain to the House to give him a hearing while he stated why, though prepared to modify, he could not retract his original statement altogether. Now, in the first place, great exaggeration had been imputed to his description of the quarters in which Sergeant Major Lilley was confined, and great pains had been taken to show that they were spacious and commodious beyond the average of those provided for soldiers of his rank. Such really appeared to have been the case with respect to the quarters in which Sergeant Major Lilley was first confined; but he begged to remind the House that his remarks were intended to apply solely to those to which the prisoner was removed, and in which he died. The fact of Sergeant Major Lilley having occupied two distinct sets of quarters, differing so widely in the amount of accommodation they afforded, had given rise to much misconception, and had led him into various errors of detail, such as must almost inevitably arise in describing events in the absence of eye-witnesses, and at a distance of several thousand miles from the scene of their occurrence. Considering the distance of India from England, he did not think that the slight errors and inaccuracies into which he had fallen were much to be wondered at, and they were much less surprising when one remembered the amount of error and mis-statement into which those parties had been betrayed who, from being on the spot, had the best possible opportunities of insuring absolute correctness in their assertions. For instance, Sir Hugh Rose stated in one of his despatches, on the authority of communications from Mhow, that the first quarters occupied by Sergeant Major Lilley consisted of three rooms, and that his second quarters consisted of two rooms and a verandah on each side. The plans produced at the court-martial showed that the first quarters, instead of only three, contained five rooms; and that what was called a second room in the 20 last quarters was nothing but a small enclosed verandah, six feet wide, a mere passage in fact, in which the sentry was posted. Again, the Assistant Adjutant General, Major Champion, who was at Mhow during the whole period of the arrest, and through whom all the correspondence relative to it passed, when examined at Aldershot, with the plans and models before him, not only made several mistakes as to their dimensions, but actually stated that when he left Mhow, the quarters in which Sergeant Major Lilley died, were occupied by another married man; and it was only on the following day that the fact was extracted from him, that the man referred to occupied, in addition, the whole of the adjoining quarters, or more than double the amount of accommodation allotted to Lilley and his wife. After so striking an example of official inaccuracy, he thought he might claim plenary absolution for any mistake into which, at so great a distance from the spot, and with such inferior opportunities of ascertaining the truth, he might have fallen. It would be recollected that in speaking of the inconvenience and suffering inflicted upon Lilley and his wife, by the position in which the sentry was posted, he had made a statement which naturally excited the greatest horror and indignation throughout the country. That statement, undoubtedly, required some modification. The same cause to which he had already referred—the change of quarters during the arrest—had misled him to a certain extent on this point; but it was to be remembered that the fact of the sentry having been posted within two feet from his wife's bed was sworn to by Lilley, before the Mhow Court Martial, in the presence of Colonel Crawley, who did not dispute it, but, on the contrary, distinctly admitted it in his official reply, when he said the fault lay with the adjutant. Now he (Mr. D. Forlescue) had applied that statement unwittingly to the second quarters, whereas, in reality, it applied to the first. These, it appears, were provided with the ordinary conveniences of a dwelling, while the second were entirely destitute of them. To the extent, therefore, involved in the removal of the sentry to the adjoining passage, instead of being in the same room, that statement must be modified. It only remained for him to express his regret if, either from any defect in the information supplied to him, or from any unconscious perversion of it 21 on his part, he bad been led, in however small a degree, to overstate the facts of the case, and to add one darker shade to a picture which, in his opinion, assuredly required no such assistance.
But, turning from these details, he could not sit down without saying a word on the subject of the arrest itself. The question of the illegality of the arrest, involving, as it did, no less a principle than the competency of an officer to suspend at his own will and pleasure the clear and distinct provisions of the Articles of War, he believed was now, to most persons, by far the most serious subject for consideration. It would be recollected that the Horse Guards, in framing their charges against Colonel Crawley, had carefully limited themselves to the details of the arrest, leaving out of view the much graver question involved in the arrest itself. That course, he was certain, had given rise to very general dissatisfaction. On the subject of arrest the language of the Articles of War was plain and explicit. The Articles provided that no officer or soldier was to be kept in arrest or confinement beyond a period of eight days without being brought before a court-martial. [" No, no !'' and cheers.] He would be glad to be corrected by hon. Gentlemen opposite if he were wrong in his reading of the Articles, but he contended that any officer who kept a soldier in arrest for more than eight days without trial was liable to be cashiered. ["No, no !" "Read the Article," and cheers.] What, then, were the circumstances of this ease? Three non-commissioned officers, who had been regularly subpoenaed as witnesses for the defence of a prisoner on trial at Mhow, were summoned, before they could give their evidence, before their commanding officer, in his own house, and after a very unusual private examination were put under arrest, and kept in close arrest for several weeks, on a vague charge of conspiracy, which his Royal Highness the Commander-in-Chief, after a perusal, he presumed, of all the documents, had declared to be without a shadow of foundation. It was true this plain and outspoken expression of opinion had been somewhat qualified in one of the later and contradictory Memorandums issued from the Horse Guards; but, at all events, His Royal Highness had never retracted the condemnation he had so strongly expressed upon the course pursued in keeping three non commissioned officers in 22 arrest without bringing them to trial. He was quite aware that an attempt had been made to justify that high-handed and arbitrary act on the ground of necessity. In the defence at Aldershot the following language was used:—It was a question of mutiny or no mutiny.A crisis had arrived; the danger was imminent; one step more and the flame might have kindled in the ranks, and the famous regiment of the Inniskilling Dragoons would hare broken out into open mutiny,And again—Close arrest may be a severe measure, but it is better than blowing your soldiers from the guns.No doubt, if reduced to such a Hobson's choice as that, it was; but did any one really believe that such an alternative was ever dreamt of? Did any one believe that the Inniskilling Dragoons, as gallant and loyal a regiment as ever wore Her Majesty's uniform, was really on the brink of mutiny, that there was ever a question of blowing any of them from the guns? Neither the evidence nor the documents gave any indication of such a state of things. He saw opposite an hon. and gallant Officer (Captain Arehdall) who had served in that corps, and he would ask him whether he was prepared to endorse that statement? Did the confidential inspection Reports, for which he had moved, and which he was sure his noble Friend below him (the Marquess of Hartington) would be eager to produce, give any indication of such a state of things? If so, it was the strangest commentary upon them that an officer who had brought the regiment to such a state of disorganization should have been appointed to the 4th Dragoons, when that regiment was just emerging from the crisis of the court-martial on Captain Robertson. The only offence alleged against the non-commissioned officers was founded upon their reading of the defence of Mr. Smales, a proceeding which, if he had rightly understood the answer of his right hon. Friend the other night, they had as clear and unquestionable a right to take, as Colonel Crawley had to communicate freely with his own witnesses on his own trial; and he believed that the attempt to stifle all communication between Paymaster Smales and his witnesses was one of the many grounds which had led to the reversal of the decision of the notorious Mhow Court Martial. The other offence alleged against the sergeant-majors was the unsupported assertion of one of their comrades that they had used 23 improper language in speaking of their commanding officer. The credence due to that assertion might be judged of from the fact that Sir William Mansfield, after going through all the documents bearing upon it, stated that the men could not be put on their trial, and yet for weeks after the receipt of that letter they were kept in confinement, with what deplorable consequences everybody was now acquainted. The question now was, Who was to blame for all that? It appeared that the sanction and approval of his superiors had absolved Colonel Crawley in the matter of the arrest, while the verdict of the court-martial acquitted him of undue severity in its enforcement. The result was, that for all that had occurred no one was responsible, no one was to blame. He was sure that that view of the case was not acquiesced in by the country; he was certain it had given rise to great and general dissatisfaction. It had confirmed the general distrust in courts-martial and the administration of military justice. It had strengthened the general impression that in any issue between an inferior and his superior officer every principle of justice, every consideration of fair play, was postponed and rendered subordinate to the one paramount object of what was called "supporting authority." How false and erroneous such ideas of supporting authority were, he need hardly stop to discuss. In that House there were hon. and gallant Gentlemen who had themselves held command, some of whom were now commanding regiments with distinction and success. He appealed to them whether their experience had not shown that the best and surest mode of maintaining their authority was to inspire every officer and private soldier under them with a full reliance on their strict and impartial justice —with a perfect confidence that the Articles of War were in their hands no instrument of uncertain and arbitrary application, applicable in all their severity as against the private soldier, but powerless, and capable of being wholly set aside, if their provisions affected his superior officer? That a feeling of distrust, such as he had described, generally existed, must be patent to every one who had either studied the language of the press on this subject, or listened to the comments of that outer world which lay beyond the circle of the contribution to the Crawley Defence Fund. Not long ago he had read a letter sent to a newspaper on 24 this subject, the authenticity of which, as the production of a non-commissioned officer, was guaranteed by the editor of the paper. That letter put the case so clearly, and yet so temperately, in the point of view from which it was regarded by the inferior ranks of the army, that it deserved the serious attention of all who had the interests of that service at heart. The writer expressly avoided what might be called the sensational part of the question, and confined himself strictly to the points involved in the arrest; and, after indicating how each successive step of that arbitrary and illegal proceeding had obtained the approval, first of Major General Farrell, then of Sir William Mansfield, and afterwards of Sir Hugh Rose, he described, in forcible language, how the Articles of War —the habeas corpus of the army, the soldier's only protection against the unlimited abuse of the authority of those above him —had been set at defiance and trampled under foot by those who were most strictly bound to maintain them; he showed how detrimental to the interests of the service such a course must be; how it must discourage recruiting, and tend to neutralize the good effects of all that system of rewards and bounties by which, of late years, the Horse Guards had endeavoured to encourage the deserving and well-conducted soldier. And finally, expressing, as he said, the sentiments of every noncommissioned officer with whom he had conversed—and they were many — the writer testified from his own experience, both as a private and as a sergeant, that it was the almost universal feeling of the ranks that it was worse than useless to complain of any wrong suffered from a superior officer, or to expect redress for an injustice sustained at his hands. Such a feeling, if it really prevailed among so important and influential a class as the non-commissioned officers, the very mainstay of discipline in the army, the indispensable link, as our army is constituted, between the officer and the soldier, was a grave matter for consideration. He need hardly remind the House how the whole of our army depended for its supply of men on voluntary enlistment, nor how in these times of rapidly increasing material prosperity, when every day new and tempting avenues of employment presented themselves to those classes on whom we relied for recruits, it was more than ever necessary not only to multiply inducements to attract them into the ranks, but, above all, to beware of re- 25 pelling them from enlistment by the impression, that there existed no protection for the person of the soldier, such as the common law of the land cast around that of every one of Her Majesty's meanest subjects. He believed that the mischief which had been done by all that unhappy business was incalculable. He believed that the death of Sergeant Major Lilley and the illegal imprisonment of his comrades would for many a day supply a fruitful theme for the publichouse agitator, and furnish a powerful antidote to the blandishments of the recruiting sergeant. He believed it would take years of strict and impartial administration at the Horse Guards to counteract those evil effects and to restore that confidence in military justice, which, if it ever existed, must, by the circumstances to which he had referred, have been shaken to its very foundations. He had no wish to see Colonel Crawley placed again on his trial, nor Major General Farrell, nor Sir William Mansfield, nor Sir Hugh Rose placed upon ! theirs. But he did hope that their recent experience would not have been lost on any one of them. And if the public scandal which had been caused by these events, and which no verdict of acquittal, no social, and no financial triumph on the part of one of the chief actors in them could do away with—if it awakened in the minds of the military authorities a deeper sense of responsibility, a firmer determination to do right and justice to all, no matter at what ! cost to individuals, no matter at what apparent sacrifice of authority; but, most of all, if it should lead, as he did not despair that it might, to some sweeping and radical change in those cumbrous and antiquated forms of procedure, with their fatal temptations to perjury, and their fatal experience, how readily those temptations were succumbed to, then the late court-martial, costly and barren of results as many might think it, would have conferred great and lasting benefit on the army. The hon. Member then moved for the papers, according to his notice.
MR. H. R. GRENPELL
rose to second the Motion. He should have preferred rising at a somewhat later stage of the debate if his hon. Friend had not communicated to him his intention to call the attention of the House to some points in the late court-martial, and also to make some personal explanations with regard to his own conduct in the matter. That, he thought, left it open for an independent 26 Member to say something as to what the duties of that House were with respect to these unfortunate occurrences. He was aware that it was most absurd for a civilian to say anything whatever on subjects of military discipline; it was, perhaps, still more absurd for gallant officers to attempt to attain their objects by resorting to any legal quibbles of whatever description; but it was most absurd of all, for a man who was neither a soldier nor a lawyer to attempt to throw any light on a question which, in its military features, might puzzle an Adjutant General, and in its legal aspects might call for the interposition of an Attorney General. His only excuse for interfering in the matter was that he was a taxpayer, and the representative of a large body of taxpayers. He had a right to know—and at some time he might perhaps be called upon to give an explanation —of the reasons for the Return he held in his hand, certifying that £18,000 had been spent on this court-martial. Every one who had listened to his hon. Friend's speech must feel that it was utterly impossible for him to have made the statements he did last year without being himself firmly convinced that, to a certain extent, they were true. He was sure also that his hon. Friend was not the man likely to make statements without having taken the best means he could to find out whether those who had given him information were or were not worthy of credit. But the best justification of the course which his hon. Friend then pursued was the speech made by the noble Marquess (the Marquess of Hartington) last year, and which, in fact, scarcely differed from the speech then made by his hon. Friend. The best justification for his subsequent course was to be found in the admissions made by the Judge Advocate General in that House, and by the Secretary of State for War in another place. Those admissions were, first, that the arrest was illegal; and secondly, that the court-martial at Mhow was unfair; and the statement made by the Secretary of State for War was, that if any one was to blame for the information as to the falsity of the charges of cruelty not having been given to the House last year it was Colonel Crawley—who, so long as he thought he could use the fact of this cruelty as a weapon against his adjutant, took no pains to refute the charge, but who, when he found that weapon was a bomerang which would recoil on himself, declared, in his own defence, that the 27 cruelty had never existed. Like his hon. Friend he should be sorry to question the verdict of the court-martial—he was quite certain it had been arrived at after a fair hearing of the evidence which was brought before it; but, although Colonel Crawley should be considered not guilty on that evidence, he was morally responsible for the illegality of the arrest, and also for being a principal party to an unjust court-martial. He hoped that some hon. and gallant Member would tell the House what those who objected to the course adopted by the military authorities in this country would have done had they been in their position? Would they have refused the court-martial on Colonel Crawley? He very much doubted it. It was well known that there were different opinions as to the best mode of administering the army in this country. Some thought it ought to be administered absolutely by the Horse Guards; others, that it should be administered by the Secretary of State for War, with a Board of military officers around him; others thought that the military administration was bound to consult certain irresponsible authorities who were supposed to have a monopoly of the expression of feelings of the officers. For himself, he maintained the Commander-in-Chief was bound to see justice done to all ranks of the army. His Royal Highness was not only the Commander-in-Chief of generals, colonels, majors, and captains, but also of non-commissioned officers and privates— and he was bound to consider the feelings of one class as much as those of the other. He (Mr. H. R. Grenfell) would go further than that, and say he believed that if all the colonels, majors, and captains in the army were swallowed up to-morrow by an earthquake, the Commander-in-Chief would have no difficulty in finding very efficient officers to supply their places; but if the same earthquake swallowed up all the non-commissioned officers of the army, officers would find very great difficulty in finding men to substitute for them. Therefore he believed the Commander-in-Chief was right in ordering this court-martial, because it showed that he had due consideration for the feelings and wrongs of the non-commissioned officers in the army equally with those of the superior ranks. But if that were true of the Commander-in-Chief, it was still more the case of the Secretary of State. He (Mr. H. R. Grenfell) could not forget that the Secretary of State for War had 28 once been a liberal Member in that House, and that, when he discussed the subject of promotion by purchase in the army, he founded almost all his arguments on the efficiency of non-commissioned officers, and the very few rewards Vouchsafed to them. There could, therefore, have been no excuse for the noble Earl if, on the first occasion that presented itself of injustice done to noncommissioned officers, be had thrown around the delinquent the mantle of his dignity, and interposed between the victim of that wrong and the light of justice that cold shade of the aristocracy about which he was wont to be so fluent. The question now before the House was, whether they should call on the Government to produce any further papers with reference to this court-martial. He could not help thinking they had got almost enough papers on this subject. But he confessed he was somewhat astonished to find the right hon. and gallant General the Member for Huntingdon (General Peel) had moved that the House should declare it had had enough papers, seeing that, at an early day of the Session, the hon. and gallant Member placed a notice on the paper asking for the production of a very voluminous pamphlet on this subject. There was nobody admired more than he (Mr. Grenfell) did the pamphlets of the gentleman in question, who had written on various subjects, and many hon. Gentlemen opposite would do well to read some of his lucubrations on international law; but he had never before heard in that House of any Member asking for the production of a paper of an advocate—an ex post facto argument—after the whole case was finished. It appeared to him, that if all the papers connected with the case were produced before the House, it would become very much like the Schleswig-Holstein question, and they would all get very much confused in looking them over. He had stated that he thought there were certain public considerations, apart from Colonel Crawley and apart from his hon. Friend (Mr. Dudley Fortescue), that it would be a very good thing for the House to notice. His hon. Friend had made some allusion to those points, and he trusted the House would not think he was dwelling too long upon the subject if he ventured to express a hope that they would receive an assurance from the Government that the whole question of courts-martial would be taken under their consideration. He was quite certain that the working of that tribunal 29 was eminently unsatisfactory to the public. He need not call attention to the Aldershot court-martial, which seemed to him to be somewhat analogous to a case which occurred some time ago in our Lunacy Court —he meant the Wyndham case, in which from, he would not say the incompetency, but the small calibre, of the Judge—it was found that the counsel on each side took every sort of liberty. But in that case it seemed to him that justice did not suffer, because the liberties were taken on both sides, and the only people who suffered were the unfortunate litigants. But in the case now under consideration, he thought the liberties were all taken on one side. On one side there was the gentleman connected officially with the prosecution; the official prosecutor was an officer highly distinguished in Her Majesty's service, but he believed he was no great judge of the law of evidence; and he (Mr. Grenfell) was informed that the counsel for the prosecution was not even assisted by a solicitor. On the other side, there was an enormous array of legal talent. There was a member of that House, a Chancery lawyer, the writer of the pamphlet and a solicitor, and there was also the prisoner himself, who, after all, must have known more about the case than anybody else. He hoped, therefore, they should have an assurance from the Government, that the constitution of tribunals of this kind should be taken into consideration. There was one more subject to which he wished to make an allusion, and that was the consequence to officers of giving evidence. They had had placed in their hands a memorandum of his Royal Highness the Commander-in-Chief on the late court-martial, in which the reasons were given for the dismissal of Major Swinley from his regiment. He did not wish to pass any opinion upon this document, but he apprehended that it was the duty of Major Swinley to tell the whole truth — and he thought it would have been much better, if it were to be considered part and parcel of military discipline that such a memorandum should be sent out at the conclusion of a court-martial, at all events that it should not be laid on the table of the House, where it would be sure to meet with some discussion. He hoped that the case of Major Swinley would be taken into consideration by the Government. He was informed, and as he had seen the story in the newspapers there could be no indiscretion in alluding to it, that the only 30 portion of Major Swinley's evidence which might appear to have shown an animus against his commanding officer was given on his return into the court for the purpose of filling in a certain expletive which he need not name in his evidence; that he did not so return of his own accord, but was called upon in terms which no officer or gentleman could refuse to obey, to go back and complete his evidence. He (Mr. Grenfell) had searched in vain through the evidence of that officer for anything like animus with that one exception; and he hoped, therefore, that the House would be assured by the Government that some justice should be done to Major Swinley. He knew it would never do for that gallant officer to go back into the same regiment with Colonel Crawley—but he might be placed in some other regiment. Before he sat down he would appeal to hon. and gallant Members who had had the honour of commanding regiments, and would ask any of them whether, if they were placed in the same position as Colonel Crawley, they would have acted in the way that that officer had done? He would ask, whether any of them believed that there was anything like a conspiracy in the regiment? If they really believed there was a mutiny, then, of course, there was an end of the question; but he had not yet seen a tittle of evidence to show that anything of the kind existed. In conclusion, he should only express his hope that Her Majesty's Government would be able to give the House some satisfactory statement respecting the points he had referred to, and also that some hon. and gallant Gentleman would tell the House what he would have done had he been placed in circumstances similar to those in which Colonel Crawley was placed. He would further hope that the Government would give some intimation that in witnesses giving evidence before courts-martial, truth was the thing necessary, and not the favour of sergeant, colonel, or even of Commander-in-Chief.
Motion made, and Question proposed,
That an humble Address be presented to Her Majesty, that She will be graciously pleased to give directions that there be laid before this case, Copies of a Letter from Lieutenant Colonel Crawley, announcing, for the information of Sir William Mansfield, the arrest of Sergeant Majors Lilley, Duval, and Wakefield, on a charge of conspiracy; together with any Documents in support of such, charge.
Of the last half-yearly Confidential Inspection Report on the 6th Dragoons, prior to Colonel Shute's resigning the command.
And, of first half-yearly Confidential Inspection Report subsequent to Colonel Crawley's assuming the command of that regiment."—(Mr. Dudley Fortescue.)
§ LORD LOVAINE
, who had given notice of an Amendment, to move an Address for Copy of Correspondence and Legal Opinions forwarded by Sir William Mansfield from India to the Secretary of State for War and the Commander-in-Chief, relating to the legality of the Mhow Court Martial, said, Sir, I have had the advantage of having served some few years in Her Majesty's army; I feel, therefore, that I am not altogether disqualified from entering into this Question, and giving an opinion upon the case. I am perfectly well aware that it is some time since I retired from the service, and that my experience does not quite justify me in trespassing very long upon the attention of the House. There is, however, some advantage in knowing something of military discipline when we come to discuss a question of this sort. Now, as regards the case of the hon. Member who brought forward this Motion, and the statements of the hon. Gentleman who seconded it, I have two or three observations to make. In the first place, the hon. Member who commenced the discussion said, that he did not intend to go into the evidence or impugn in any way the result of the court-martial at Aldershot; nevertheless it appeared to me that the hon. Gentleman did comment upon the evidence, and tried to make out that the manner in which the place where Sergeant Major Lilley was confined had been wrongly described. To that I give a complete contradiction. If there were any truth in the statement of the witnesses it was evident that the bungalow in which Sergeant Major Lilley was confined had one small room, one large room, and two verandahs communicating with one another. The hon. Gentleman said he was partially mistaken in what he had said regarding the position of the sentry over his prisoner. I think the hon. Gentleman might have gone further, and said that he was grossly mistaken in the matter. It was clearly proved that the sentry had never obtruded himself upon Mrs. Lilley, and that he never saw her. The witness was asked whether he saw the bed in which the Sergeant Major and Mrs. Lilley slept and his answer was that he could not see it, as there was a screen between him and 32 the door leading into the bedroom. There was no complaint whatever on this subject made to Colonel Crawley, except the first complaint after the sentry had been posted in room No. 2 of the first bungalow, nor could she be seen in the second bungalow. Then the hon. Member says that according to the military law no soldier can be kept in confinement for more than eight days without a court-martial. If the hon. Gentleman would but read a little further upon the subject he would find that he is mistaken. The real fact is, that according to military law no soldier shall be kept eight days in confinement without a charge of some military offence being brought before a higher authority, with a view to his being brought to a court-martial. ["No, no!"] I believe that that is so. And if that be the case I contend that the law has been carried out in the present instance. Before the expiration of eight days' confinement of the Sergeants Major, the charge was sent in to the Commander-in-Chief, and they were continued in confinement until the receipt of a letter from Sir William Mansfield ordering them to be released. Up to that moment, at all events, it must be admitted that the confinement was legal. The hon. Gentleman then said that the Sergeants Major were kept six weeks in confinement. Now what is the case? They were imprisoned the 26th April. The receipt of the letter from Sir William Mansfield ordering their release was the 6th May; and, therefore, the only charge of illegality of confinement could apply to the period between the 26th April and the 6th May, which was three weeks instead of six. Now, I think it would be well if the hon. Gentleman, when making charges against a man who might have erred in the performance of his duty, had taken care to be well informed as to the facts, and had recollected that Colonel Crawley had a most arduous duty to discharge, under circumstances of great responsibility.
§ MR. DUDLEY FORTESCUE
When I said six weeks I meant that six weeks was the duration of the whole of the imprisonment, and that it was illegal because these men had never been brought to trial at all.
§ LORD LOVAINE
If the meaning of the Articles of War be that the prisoner should not be confined eight days without the charge being laid before the Commander-in-Chief, the confinement in this case was legal. The moment the Com- 33 mander-in-Chief had reported on the subject it ceased to be legal to keep the prisoner in confinement without bringing him before a court-martial or discharging him. So far as my recollection goes that reading of the law is correct. Then, as to what has been stated in respect to Major Swinley, I have no particular observation to make, except this:—When the acquittal took place it does appear to me that the actions of a man who has been twice reproved before the Mhow Court Martial and once before the Aldershot Court Martial for the animus he had shown in his manner of giving his evidence—when these things are recollected, I think it would be just as well if the hon. Member had been a little more moderate in his remarks upon the man who has been acquitted, and shown a little less affection for a man whose conduct has been reproved. I can only say, once for all, that Colonel Crawley has been brought to trial, not for the illegal confinement of those prisoners, as the hon. Gentleman who seconded the Motion appears to think. [Mr. GHENFELL: I never said anything of the kind.] If I misunderstood the hon. Gentleman I am sorry for it. Colonel Crawley has been tried, and exposed to a great degree of obloquy. Few men have suffered more in his position. He has been prosecuted—I might almost say persecuted —before the court-martial for an alleged crime with a virulence and an animosity which I really believe to be unparalleled since the days of Admiral Byng ! Is it not time that Colonel Crawley should enjoy the advantages of his full and complete acquittal, instead of suggesting doubts as to his possible criminality? The Motion which stands in my name relates to the Mhow Court Martial, because I think that the authorities in India have not received fair play in that matter. I observed, in the report of the court-martial on Colonel Crawley, that charges have been made most distinctly of unfair dealing, illegality, incompetence and of injustice on the part of the Indian authorities. We have never seen the reply given to these charges, although such a reply certainly exists, as is proved by the letter of Sir Hugh Rose, dated the 6th of April, 1863. It is certain, however, that the trial was fully approved of by the Commander-in-Chief. The Judge Advocate, indeed, stated that that trial was not illegal, but that it was unfair. Now, I confess that I do not understand the great difference which exists 34 between what is illegal and what is unfair, and I should be glad if the learned Gentleman would enlighten me upon the subject. But this is very certain that, whether it was illegal, or whether it was unfair, the Commander-in-Chief at home wrote his approval of it in his Memorandum of the 18th of December, 1862. In that document his Royal Highness stated, that the court had come to the proper verdict as regarded the insubordinate tone of the letter written by Paymaster Smales to his commanding officer; and he stated that in this decision he was fortified by the opinion of the Judge Advocate General. Again, on the 3rd June, 1863, six months after the events had occurred, the noble Lord the Under Secretary of State for War stated that the proceedings of the Mhow Court Martial had been submitted to the Judge Advocate General, who gave his opinion that the sentence was legal. The extraordinary part of the case is—that after it had been submitted to the Judge Advocate General, and after an opinion expressed upon it by the Commander-in-Chief, who passed one of the highest rebukes ever passed on a commanding officer on Colonel Crawley, it was suddenly discovered, on the 3rd June, that the proceedings were unfair and irregular, and that finding of the court-martial must be reversed. One of the reasons given for so doing was the discredit thrown unfairly on the evidence of certain witnesses. Surely this was a question for the court itself, but if it was wrong, it was certainly a most singular coincidence that the court-martial at Aldershot, as well as that at Mhow, agreed in commenting severely on the very irregular and evasive manner in which the evidence of these witnesses was given. According to the papers, the confinement of the witnesses was another of the reasons given for saying that the court martial was irregular. But what is the charge made by Captain Smales with regard to the detention of his witnesses? He protested against the proceedings. Three highly respectable non-commissioned officers, he said, had been placed under close arrest, and he asked for the protection of the Court, because, if they continued placing witnesses under arrest he would have no witnesses to produce. Captain Smales does not say that he could not communicate with his witnesses. He never applied to see them, and there is no proof that, if he had done so, he would have been refused. That being the case, on what rests the illegality caused 35 by the imprisonment of these witnesses? And though I do not feel myself capable of bandying legal arguments with the right hon. Gentleman opposite, I consider the circumstances are so remarkable and so extraordinary, that I am justified in asking for further papers. The fact that we are now discussing this matter is attributable to calumnies and falsehood, as are now admitted to be, which were circulated by the Indian press, and which, unfortunately, were echoed in this country, and found a mouthpiece in this House in the hon. Member for Andover (Mr. Dudley Fortescue). Besides that, the case has been brought before the House with every species of exaggeration. Last Session, the noble Lord the Under Secretary for War, came down to this House and said it would have been a great deal more satisfactory to himself, and doubtless to the House also, if he could have come down that night and have handed them over a victim. That was the whole secret. A victim was required, and a victim was found; and I must say that it was not the fault of the Judge Advocate General, if the victim was not brought to the knife. Another most extraordinary thing was the unprecedented fact, that a pension had been given to the parents of Sergeant Major Lilley, who had been reduced in rank by Sir William Mansfield for misconduct, and who, it had since been proved, was given to drink. An outcry was raised in this country, and it was thought necessary to yield to the pressure from without; and, therefore, the Government without further investigation directed the court-martial which was held in this country. The Indian authorities, by that proceeding, have seen all their actions reviewed, and an officer brought to a court-martial on the ex parte statements of persons whose evidence had been discredited. It was necessary that the Indian authorities should have the means of making themselves heard, for the whole of the Indian army had by that proceeding been placed under discredit and a slur; that in all the Indian army, from the Commander-in-Chief down to the youngest subaltern, it was impossible to compose a tribunal that would do justice and act impartially in this matter. The court-martial, as I have said; took place in England, under the plea that the English people would not he satisfied with an inquiry elsewhere, or, in other words, the venue was changed from the place where it was most natural that the inquiry should take 36 place, to a country where the greatest amount of ill-feeling against the party accused existed, and where he would have he least possible chance of escaping. My right hon. and gallant Friend (General Peel) has a Motion on the paper, that it is inexpedient that any further papers shall be produced in connection with this matter, and perhaps that is the best thing to be done; but I have thought it necessary; to make this statement from a sincere belief that it is the duty of the Government lo give information of the most full and ample description, and not give a part here and a part there. Nevertheless, I agree with my right hon. and gallant Friend, that, in this, as in all other matters connected with the army, it is the worst thing in the world for the army to make this House a tribunal of appeal in matters relating to the discipline of the service. I know that my gallant Friend's feelings are very strong upon that point, and if I could feel assured that Her Majesty's Government intend to pursue anything like a firm course with regard to any interference by this House in the discipline of the army, by refusing the papers moved for, I would say that my Motion ought to be withdrawn. Perhaps it will be better that I should do so, but I wish it to be clearly understood that, unless this case is finally closed, so far as the War Office and the Horse Guards are concerned, I shall reserve to myself the right of moving for papers hereafter. I therefore beg leave to withdraw my Motion.
I have always deprecated any interference by this House with the military command and discipline of the army, and I have always been opposed to the inquiries constantly made by hon. Members on both sides of the House—including, I am sorry to say, military men — why such an officer has got a regiment, and why such an officer has been passed over, as questions which the House of Commons has nothing to do with. I draw a distinction between questions relating to discipline and promotion, and everything relating to the civil administration and Government of the army. This is no distinction of my own; it will be found introduced into the patent of the First Secretary of State for War. Everything is there handed over to him with the express exception of military command— the discipline of the army and promotions and appointments. That exception was deeply and seriously considered by the 37 Committee on Military Organization, which was presided over by the late Sir James Graham, and although that Committee came to the conclusion that it was not wise to continue that reservation in future patents, for it was impossible to entirely divest the Secretary of State for War of all responsibility in regard to the action of the Commander-in-Chief, they were unanimous in thinking that any Secretary of State who interfered with the Commander-in-Chief would not be a wise man. The Committee report—The Secretary of State does not interfere in any way with the ordinary routine administration of the discipline of the army. That is left to the military authorities, aided by the legal knowledge of a Parliamentary officer—namely, the Judge Advocate. The army is thus enabled to feel assured that the patronage of the army as regards the first commissions and the ordinary promotions and appointments, other than those which are self regulated by purchase or seniority, will not be distributed with a view to political objects, or to the necessities of successive governments. Nor will the discipline of the army, as daily administered, vary in its character with each change in the civil department. Your Committee think that the introduction of any system which shall shake this reliance on the part of the army would be prejudicial to the efficiency of the service, by introducing doubt and dissatisfaction where confidence should exist.In the next paragraph the Committee quote the opinion of the late Secretary of War, Lord Herbert—In his opinion, some regulation is necessary, as pointing out to the Secretary of State the necessity of not invading the province of the officer who has the military command of the army intrusted to him.If that is necessary with reference to the Secretary of State for War, how much more so is it with regard to this House, composed of upwards of 650 Members, the great majority of whom must be very imperfectly acquainted with what is necessary to insure the discipline of the army? And I say this in no disrespect to them, but from a firm belief that the obedience required from a soldier—and in that word I include the whole of the army, from the second in command down to the lowest drummer boy in the service—cannot be compared with any other obedience, or be judged by any ordinary rules. I may be asked if I wish to remove from the House the control of everything relating to the discipline of the army? Certainly not that proper constitutional control which the House possesses. You have a Minister of the Crown who is responsible for the administration of the army: and if you are not satisfied with his 38 administrative conduct you have the means of ensuring his removal by a vote of want of confidence. But whatever you do, do not attempt yourself to interfere with the administration and government of the army, for if you do, you will lead to the belief that every man in the army who has, or supposes he has, a grievance, may come to this House for redress, instead of looking to his officers and the Commander-in-Chief for it. If you set yourselves up as a court of appeal from every military tribunal, the end of it will be to diminish the power and authority of the Commander-in-Chief, and make him subservient to public opinion, which is very often hastily formed, and on very insufficient grounds, as it seems to have been in the present instance. Above all, and worse than all, you will do that which the Committee on Military Organization thought the most detrimental to the public service—namely, the introduction of doubt and dissatisfaction where confidence ought to exist. Your soldiers will not have that confidence in their officers which I believe firmly every good soldier possesses, and they will not look up to them for that justice which they are certain, in my opinion, to obtain. I know the difficulty of getting the House of Commons to agree to this system of non-intervention with regard to military affairs. I have heard it said to those who have expressed this opinion, that no doubt it is a very beneficial system, but that the House of Commons will never agree to it—that they vote the supplies, and therefore they think they have a right to interfere. That is a doctrine I think the hon. Gentleman who has seconded the Motion now before the House (Mr. H. R. Grenfell) has laid down; but it is an excuse I have often heard offered for a man who does a foolish thing at his own expense —such as when a man is his own architect, and builds a frightfully ugly house; or when he is his own lawyer, and makes a very bad will. It is often said of them in language more expressive than elegant, that "the man who pays the fiddler has a right to call the tune." I perfectly admit, that not only have you a right to call the tune, but I say you actually exercise your right—for you nearly did the other night, when you narrowly escaped making a material alteration in the Mutiny Bill; and if you do not like the manner in which the tune is played, you can insist upon changing the fiddler; but do not attempt to play it yourself, for if you do, depend upon it you will produce a discord that 39 will astound you. Having laid down my opinions as to the rule the House ought to observe with regard to military command and discipline, I come now with the greatest possible regret to the consideration of the question before the House, which in my opinion is, from the beginning to the end, an exception to all rules, and which. I trust, will never be looked upon hereafter as a precedent. It has done more, in my opinion, to weaken confidence in the governing powers of the army, and to expose a system of want of discipline, than I could have considered possible. I am not going to follow the hon. Gentleman into Colonel Crawley's court-martial, nor re-try him nor any of the parties referred to; on the contrary, I think the parties on their trial are Her Majesty's Government, for the manner in which they have acted. I was not the least surprised, when first those exaggerated accounts were received of the treatment of Lilley and his wife, at the general indignation that existed in this country. Neither was I surprised at the hon. Gentleman bringing it under the notice of the House. But although those exaggerated accounts received a kind of confirmation from the Memorandum of the 18th December, which, however, has since been so modified, so explained, and so apologised for, that not one line of it remains — notwithstanding the assumed confirmation it received, I could not believe that any officer in Her Majesty's service could be guilty of the cruelties charged against Colonel Crawley; and still less could I believe that such distinguished officers as Sir William Mansfield and Sir Hugh Rose, who were upon the spot, and must have seen a description of those cruelties in the Indian newspapers, would not have caused an instant inquiry to be made into the matter, and justice done to the parties. It is my belief, that if these officers did not do it they are not fit for their position, and that they belie that high character which they have attained during their glorious career. But Her Majesty's Government were not prepared to give them even a fair trial. On the contrary, when the noble Marquess (the Marquess of Hartington) replied to the hon. Gentleman who brought forward the question, he attached so much blame to General Farrell and General Mansfield, that, if that was the deliberate opinion of Her Majesty's Government, they were bound to have brought those officers to a court-martial. The noble Marquess, how- 40 ever, concluded his speech by twice expressing his regret that he had not a victim to offer; and I recollect the late hon. Member for Brighton (Mr. Coningham) observing that it was not a victim that was demanded, but justice. And if the Secretary of State for War had promised that the strictest inquiry should be made and justice done, even if it was necessary in doing it to censure or punish the highest in command in India, if the House had that confidence in him which I am inclined to give him, they would have been perfectly satisfied with such a statement. But instead of that the victim must be Colonel Crawley. He was the victim pointed out, and the Government did everything in their power to sacrifice him. I was astonished when I heard the Secretary of State for War give his reasons in another place why Colonel Crawley had been brought to a court-martial. That noble Lord said that the case stood in a peculiar position in consequence of the course taken by Colonel Crawley himself, who had used language which it was impossible to interpret at that time in any other sense than that something had been done which shocked Colonel Crawley, which he considered improper, and, I think, he said inhuman. He said the blame of that proceeding was not attributable to him, but to his adjutant and his lieutenant. You had that speech in your possession from the previous October or November, and if you believed something inhuman had been done, and that Lieutenant Fitzsimon was the cause of it —and up to that time they had never heard him contradict the statement—why did you not bring Lieutenant Fitzsimon to a court-martial? You no sooner received, in a most irregular manner from Captain Smales, a letter that had been addressed by Lieutenant Fitzsimon to the Commander-in-Chief in India, and afterwards withdrawn, than, upon the unsupported testimony of Lieutenant Fitzsimon, you determined to try Colonel Crawley upon it, and to prefer his word to Colonel Crawley's, and to try him for a crime which you had looked over in Lieutenant Fitzsimon. I do not wish to be considered an admirer of Colonel Crawley. On the contrary, one of the great proofs of want of discipline this case produced was produced by Colonel Crawley himself in the course of his defence, when he brought forward in a triumphant manner, and proved it in evidence, that the Colonel of another regiment visited him on the morn- 41 ing when he was under arrest, and about to proceed to England to be tried by court-martial, and told him that his men were turned out and ready to give him £ cheer. Instead of his pointing out the impropriety of such a proceeding, Colonel Crawley not only received that ovation, but similar cheers from the witnesses who were coming over to attend the court-martial. That was a very improper proceeding. If these men had turned out to cheer a comrade coming up for a court-martial, no one would doubt that they would have been guilty of a great want of discipline. All I can say is, that if this is a specimen of the present state of discipline of the army, it must have been materially altered since I was a regimental officer. But the case came on. It was decided to try Colonel Crawley, and to try him in this country, the ground alleged for that course being the great excitement which the case had created here, and that no trial in India would be satisfactory to the English public. This was exactly the reverse of the course taken in ordinary legal proceedings, am a trial is generally removed from a place in which great excitement exists. Fortunately, however, for Colonel Crawley, he was brought before that much maligned tribunal a court-martial instead of a jury in Westminster Hall. If he had been tried before a Westminster jury, Colonel Crawley, whatever the evidence might have been, would have had a very bad chance. I, at the time of the trial, had no means of knowing what was going on beyond reading the evidence published in the daily papers; and it appeared to me that the evidence of the witnesses called for the prosecution was conclusive as to the innocence of Colonel Crawley to such an extent, that I thought on several occasions those witnesses were giving their evidence for the defence and not for the prosecution. When the case for the prosecution was closed I considered that it would have been a wise thing if the Government had withdrawn from the prosecution, confessed that the case had broken down, and offered to pay Colonel Crawley his expenses. If they had done that at that time they would have saved the country from the scandal of officers on full pay, headed by your own Commander-in-Chief in Ireland, entering into subscriptions for the purpose of relieving a brother officer from the expenses, not of a military prosecution, but of a military persecution. And sure I am, if the noble Lord had not expressed the in- 42 tention of the Government to pay the expenses up to a certain point, that subscription would have risen to a much larger amount. But the Government did not adopt that course. You called upon the accused for his defence; and after he, had concluded it, after his mouth was shut and he had not a single opportunity of saying anything more, the prosecution answered by a reply which I will not venture to designate. You had tried Colonel Crawley upon two charges, so narrow in themselves that he had actually objected to them from the first, because he said they, did not give him the opportunity of vindicating himself from the vile aspersions which had been cast upon him. He was anxious to show the grounds upon which the sergeant-majors were arrested. You said, "No; so far as you are concerned, the arrest was perfectly legal, and we do not allow you to enter into the question; we confine you to the two charges." Thus you prevented Colonel Crawley from entering upon this question; and then in your reply, you brought forward this very question of the illegality of the arrest I upon which you had prohibited him from entering. Now, who is responsible for this reply? It has been repudiated by the Horse Guards and the War Office. It is said that it is to be looked upon as a speech of counsel; but I always understood that counsel were not responsible for what they utter, because they are merely acting from their instructions. Certainly in this case the counsel was counsel, attorney, prosecutor, and judge also. But the gallant officer, who acted as official prosecutor upon that occasion, I understand did exercise a certain degree of responsibility, for he positively refused to read three-fourths of the reply—His generous tongue disdained to speakThe thing his heart disproved.He positively refused to be the mouthpiece of the Captain Smales's and the Jacob Omniums, who were anxious, notwithstanding all the evidence that had been brought forward, to repeat those refuted calumnies which had appeared in the Indian press, and in articles in magazines. They attempted to obtain a verdict by bringing forward the topics which the prisoner had not been allowed to reply to in his defence. Fortunately for Colonel Crawley, all these attempts had no effect upon the honourable men who constituted the court-martial, and who, on the contrary, came to the conclusion that he was fully and honourably 43 acquitted upon the charges which were brought against him. Surely one would have thought that that was quite sufficient, and that there would have been an end of the case—at all events, that the War Office would have adopted the very wise determination of His Royal Highness the Commander-in-Chief expressed in the Memorandum at the close of these proceedings, in which he said that the object of the inquiry having been attained, it was not his intention to continue the discussion respecting the circumstances under which this court-martial arose. What a pity it was that the Secretary for War-had not followed the example of the Commander-in-Chief. When called upon to lay the proceedings before Parliament with this reply attached to it, the reply recollect becomes a Parliamentary document and remains for ever upon your proceedings, and it is a reply in which the prosecutors were not content with assailing Colonel Crawley, but dragged before the Court the highest military names in India who had no opportunity of defending themselves, and who were not even aware that their conduct would be impugned. How, under these circumstances, I ask, is it possible that the discipline of the Indian army can be maintained? The hon. Member is surprised that I have moved for the production of a pamphlet. But the author of the pamphlet has informed me that he has made an official document of it by forwarding it both to the Horse Guards and to the War Office, and it is as a public document that I have moved for it. What has been produced by agreeing to lay these papers before the House? You have produced a discussion which had far better have been avoided, and you have produced three separate Motions for further papers, two of which are by hon. Members who move for confidential Reports. I am sure that if the House of Commons was aware of the nature of those confidential Reports, they would not insist upon their being produced. Many an officer has had his character taken away behind his back in these confidential communications; and if they are to he laid on the table of this House and sold for a penny throughout the whole world, no inspecting field officer will address such reports with confidence again. I trust that the House will not agree to that, and will come to the conclusion that the production of any further papers is inexpedient.
To leave out from the first word "That" to the end of the Question, in order to add the words, "the production of any further Papers relating to the court-martial on Colonel Crawley is inexpedient,"—(General Peel,)
THE MARQUESS OF HARTINGTON
said, he rose to state the course which the Government intended to take. The Government gave a most cordial assent to the Amendment just moved by the right hon. Gentleman, agreeing in the necessity of not producing more papers, and of avoiding further discussion. He should have occasion by-and-by to state why he disagreed with the right hon. Gentleman in thinking that the papers already produced had done harm to the discipline of the army; but surely no one could now say that this question had not been fully and amply discussed, and he thought a large majority in the House would agree with the right hon. Gentleman that the time had at last come when this controversy should be brought to an end. He was happy to find that the hon. Member who brought this subject forward (Mr. D. Fortescue) had responded to the appeal which he had made to him, and did not invite the House to go through all the proceedings of the trial. Considering the very strong opinion held by the hon. Gentleman upon this subject, he had acted in a very fair and manly way in declaring that he would not call in question the justice of the finding of the court-martial. But he had alluded to that which one would have thought had long ago been discussed and decided—the speech of the hon. Gentleman being a repetition of that which he had made last Session, calling in question the original legality of the arrest of the sergeants, and the further illegality of the continued arrest of Sergeant Major Lilley. In reply to the hon. Gentleman last year, he (the Marquess of Harrington) admitted, and still admitted, that in the opinion of the Law Advisers of the Crown, and of the military authorities at the Horse Guards, Sir William Mansfield's decision in continuing the arrest of the three sergeant-majors, while allowing that no sufficient ground existed upon which they could be brought to trial, was not to be justified, and that Sir William Mansfield committed an error in judgment when he sanctioned this continued arrest. The hon. Gentleman had concluded by saying that he did not wish to see Sir 45 William Mansfield, General Farrell, or Colonel Crawley tried over again. But what, then, was his object in raising this question? He thought last year, and he continued to think it a most unfortunate circumstance that, owing to a series of mistakes and a series of misunderstandings, the sergeants had been kept in confinement for three weeks beyond the time they could have been legally confined; but he stated last year that, though Colonel Crawley might be morally responsible for the occurrence, yet, as he was covered by the order of his superior officer, he could not be held legally responsible for the continued and, as the Government thought, illegal confinement. Again, he then admitted that, on the other hand, Sir William Mansfield was technically responsible for that continued arrest. But it must be remembered that Sir William Mansfield was placed under great difficulties, for he was 400 miles from the place where the occurrence took place, and, consequently, he had not an opportunity of making constant references to know how those proceedings were going on. He was, unfortunately, under the impression, when he sanctioned the confinement, that the trial would terminate in a few days. If he had not been under that impression he would not have sanctioned it. The hon. Member had disclaimed the idea of wishing to see the Horse Guards put Sir William Mansfield on his trial; and he did not think that any Member of that House would have considered the Government justified in arraigning an officer of such distinguished services and talents upon his trial for his share in this unfortunate transaction, for they might be quite certain that no court-martial would have found him guilty of any military offence. Therefore, though the Government held him legally responsible for what had taken place, they at the same time held that morally he was guiltless. He said last year that, though they would not put the gallant officer on his trial, the opinion which the Commander-in-Chief had formed of the mistake he had committed would be forwarded to him; and it had since been sent to him. To such an officer he thought the receipt of such an opinion was a full and ample punishment—if punishment it might be called—for any error of judgment which might be laid to his charge in connection with those men. The hon. Member who seconded the Motion (Mr. H. R. Grenfell), had made some observations with reference to the proceed- 46 ings of the court-martial in this case and to courts-martial in general, and had expressed a hope that the Government would he able to state that some alteration was to be made in respect to the practice of courts-martial. In reply, he might say that the subject of the practice and procedure of courts-martial was under the consideration of the Government, but he could not say what alterations would be proposed, or at what time they would be in a position to make any proposition on the subject. It was one of great importance and difficulty, and the Government would not be justified in acting hastily in the matter. As to the observations of the hon. Member with reference to Major Swinley, the House would remember that the gallant officer had been censured by the court-martial for the evidence he gave against Colonel Crawley. Whether that evidence had been elicited from him in any particular manner, he was not prepared to say; whether Major Swinley tried to make the worst of the case against his commanding officer it was not for him to say; but it was quite manifest from the evidence he did give before the court-martial, that his feeling towards Colonel Crawley was such as to make it impossible he could be allowed to remain in the regiment of which that gallant officer was the commanding officer. Major Swinley had not exactly been placed upon half-pay—he was permitted to exchange to half-pay. The other officers whom it had been thought necessary to censure were engaged in arranging their exchanges, and no doubt before long they would be gazetted. The proceedings of Dr. Turnbull had been made the subject of investigation by a Court of Inquiry at Chatham, and though the result was that the charges against him were not substantiated, it was thought necessary that he should leave the Inniskilling Dragoons, and he would shortly be appointed to another regiment.
The other speeches delivered during the present discussion had gone more to attack the Government for the course they had pursued. It was urged that they had yielded unduly to popular clamour in trying Colonel Crawley in England, and it was argued that they had conducted the trial unfairly, and that they had acted unwisely in imparting to the House of Commons the amount of information which they had laid before it. Last year the hon. Member for Andover (Mr. Dudley Fortescue), in a 47 speech of great moderation and ability, brought forward the case of Sergeant Major Lilley. In no exaggerated terms he told the House a tale which he was not surprised created a strong impression and a feeling of great excitement throughout the country. It was argued by hon. Members on the other side of the House, that those who had to answer for the Government on that occasion should have been able to refute all the statements and exaggerations, as they called them, of the hon. Gentleman with respect to Colonel Crawley. But at that time the Government were not in possession of materials by which the statements of the hon. Member for Andover could have been refuted. A constant correspondence had been going on between the Horse Guards and the authorities in India; many points had been pressed on the consideration of the Commander-in-Chief, but there was nothing in the possession of His Royal Highness that would have enabled the War Department to answer in any manner, satisfactory to the House, the statements made by the hon. Member for Andover on that occasion. The speech of the hon. Member was principally directed to the illegality of the imprisonment—that was, at least, the point to which he (the Marquess of Hartington) in his reply chiefly adverted. In commenting on the statements of the hon. Member he stated — what it was impossible to deny then, and what it was now equally impossible to deny—namely, that in the opinion of the Government, Sergeant Major Lilley died while he was confined in an illegal imprisonment, and that his death under such circumstances was a lamentable occurrence, calculated to raise feelings of horror and indignation in the country. He explained, as well as he could, the circumstances under which the Sergeant Major's death had taken place, and his words gave occasion for much criticism on the part of hon. Members opposite. It had been stated that he said that he deeply regretted not being able to come down to the House with a "victim" to atone for the death of Sergeant Major Lilley. It was quite true the Government had not then a victim to give, and they did not go out of their way to look for one. He stated that the fact undoubtedly was that the Sergeant Major died while in illegal imprisonment, and that Colonel Crawley was not legally responsible for that imprisonment; but he further informed the House that there was a conflict of evidence as to the severity, or the 48 degree of the severity, with which the detention had been carried out, and that it was necessary the matter should be inquired into. That promise had been fulfilled, and it was the only promise ever made, or which it had appeared necessary for the Government to give. When it had been determined that there should be an inquiry, it became necessary to consider how it should be conducted. The whole affair was involved in so much mystery, and it seemed so difficult to get at the facts, that the Government thought a court-martial would be the most satisfactory tribunal before which the circumstances could be investigated. In reference to what had been said as to the injustice towards Colonel Crawley involved in such a decision on the part of the Government, he had to observe that there were instances of courts-martial being allowed to officers in order to give them an opportunity of clearing themselves; and the character of Colonel Crawley had been so seriously impugned, both in India and at home, that it was thought desirable that he should be allowed to appear before a court-martial with the view of exculpating himself. In short, the court-martial on Colonel Crawley was authorized on the most direct and straightforward manner of getting at the real facts of the case. Besides that, the military authorities had evidence which had great weight on their minds in deciding to bring Colonel Crawley before a court-martial. They had the sworn testimony of Sergeant Major Lilley before the Mhow Court Martial, never contradicted, as to the manner in which the sentry was placed in his room. They had also Colonel Crawley's reply, in which he admitted the existence of undue severity and inhumanity in the circumstances of the imprisonment of Sergeant Major Lilley, although he said that he was not responsible for it, and that reply was not given until nearly a month after that statement had been made. Was it not remarkable that Colonel Crawley should have allowed that period to elapse during which he might have ascertained for himself whether the facts were true or not, and that at the conclusion of that period he should have appeared before the court-martial, and have stated publicly his conviction that severity and inhumanity had accompanied the imprisonment of Sergeant Major Lilley, though he was not responsible for it? They had also the letter of Lieutenant Fitzsimon directly contradicting the statement of his commanding officer. The 49 right hon. Gentleman (General Peel) said that that letter came before the Commander-in-Chief in an irregular manner. He (the Marquess of Hartington) acknowledged that the manner in which that letter was obtained was somewhat unusual; but if it had not come before him in an irregular manner, it never would have come before him at all. The House ought not to forget the circumstances attending that letter. When Sir Hugh Rose's remarks were published, reflecting on Lieutenant Fitzsimon's carelessness in posting the sentries, Lieutenant Fitzsimon protested against the statement made against him by his commanding officer, and sent his letter in the usual way through the acting adjutant to the commanding officer, that it might be by him forwarded to Sir Hugh Rose. Colonel Crawley placed that letter in the hand of General Farrell, who sent for Lieutenant Fitzsimon, and told him that the letter was an exceedingly improper one, that it would be detrimental—indeed, ruinous to his future prospects. Not unnaturally, Lieutenant Fitzsimon then wrote to the General, requesting that this letter, which was to bring such ruinous consequences to him, might be withdrawn, and he stated that he did so because, in the opinion of General Farrell, the letter was an insubordinate one. This, however, he was not allowed to do in that way. He was not allowed to say that it was on account of General Farrell's opinion, but he was compelled to ask for its withdrawal without assigning any reason. When that letter came before the Commander-in-Chief, in an irregular manner, it turned out that, in the opinion of the Judge Advocate General and all the military authorities, both at the Horse Guards and the War Office, without exception, it did not contain one improper or insubordinate sentence or word. Therefore, if there was anything irregular in the manner in which that letter came before the Commander-in-Chief, there was also something extraordinary in the manner in which it was prevented reaching Sir Hugh Rose. The circumstances attending the suppression of this letter—for he could call it nothing else—did weigh upon the minds of the Commander-in-Chief and the Secretary of State in thinking that something had occurred, which Colonel Crawley confessed had occurred, but which great pains appeared to have been taken to suppress, and for which it appeared Colonel Crawley was responsible. Those were the 50 grounds on which it seemed that the trial would be justifiable. It was true that they had statements from India in explanation; but none of those statements went to disprove any one of the statements made by the hon. Member for Andover. If he made any exception to that general assertion, it would be to express his regret for one omission in his speech of last year. The military authorities were certainly then aware—and he had intended to explain it —that there was nothing unfit for human habitation in the house in which Sergeant Major Lilley was confined, and that, whatever the quarters were, they were the quarters he would have occupied even if he had not been arrested. But though he regretted not having made that statement, he could not see that it would have made any difference. Colonel Crawley was tried, not for having imprisoned Sergeant Major Lilley in a dungeon unfit for human habitation, but for carrying out his imprisonment in his own house with unnecessary severity. On the other hand, Sir Hugh Rose had taken exception to some remarks in the Memorandum of the Commander-in-Chief with reference to the quantity of brandy stated to have been consumed by Sergeant Major Lilley. The Commander-in-Chief acknowledged that explanation, and said that he then understood what were the reasons which had induced Sir Hugh Rose to make his remarks on Lilley's intemperate habits. But in that letter, which was before the House, the Commander-in-Chief never modified his originally expressed opinion that, up to the time of his imprisonment, Lilley had been a man of temperate habits. The evidence, he said, which supported the allegation of the habits of intoxication of Lilley was of a doubtful character, but the evidence which represented him as having been previously a man of a temperate character was undoubted, and had never been shaken. After Sir Hugh Rose's explanation the Commander-in-Chief acknowledged that he now understood the grounds on which he had acted; but he never changed his opinion upon the two essential points touched upon in his Memorandum—that the imprisonment was illegal, and that there was no foundation for the allegation that Lilley's death was caused by the quantity of spirits he consumed. [Lord LOVAINE intimated dissent.] What further explanation did the noble Lord desire?
§ LORD LOVAINE
said, he did not understand Ms Royal Highness to go quite 51 so far as that. The words of the Memorandum were—Having ascertained the quantity of brandy ! consumed in the house of the non-commissioned officer, that shows the probability of his symptoms having been aggravated by drinking; at the same time his Royal Highness must remark, that the allegation of habitual drunkenness rests on very doubtful evidence, while the evidence was undoubted of previous good conduct and sobriety.He confessed he could not see clearly what was the effect of that passage.
THE MARQUESS OF HARTINGTONI
said, he was not engaged in defending the language of the Memorandum, he was merely stating that his Royal Highness had never modified the opinions originally expressed in the first Memorandum of the 16th September. The military authorities also received from India explanations as to the nature of the bungalow, and statements made in a casual and summary manner about the severity of the arrest. He maintained that the Government had not at that time in their possession sufficient materials for confuting the statements made in the press and by the hon. Member for Andover. Then the Government had been attacked because they ordered the court-martial to be held in this country. The reason for doing so was that the proceedings at the Mhow trial had very much agitated the minds of all the military authorities in India, and especially in the Bombay Presidency, and that the Commander-in-Chief in that presidency and Sir Hugh Rose were both, to a certain extent, mixed up, in public opinion, with the transactions which had taken place in connection with that court-martial. It seemed to the Government, when charges of the very gravest nature had been brought against Colonel Crawley, that it would be much better for that officer and for all concerned, and much more satisfactory to the public, that the trial should take place in some place where the superior military authorities were not involved in the case to the extent of those in India. It certainly never entered into the mind of his Royal Highness the Commander-in-Chief, or to his noble Friend the Secretary of State for War, that Colonel Crawley would not have had a fair trial in India; but only that it would be more satisfactory to the Colonel himself, and to the public in England, that it should take place here. The very first incident of the Aldershot Court Martial showed what would have been the inconvenience of holding the trial at Mhow. In drawing up the charges, the legality or 52 illegality of the arrest was specially and studiously excluded, because it was held that so far Colonel Crawley was covered by the sanction of Sir William Mansfield. The very first thing, however, which Colonel Crawley did when on his trial in England was to appeal against the very narrow issue raised in the charges, and to ask to be permitted to go into the whole question, in order to show what were the reasons which induced him in the first instance to order the arrest of the Sergeant Major. If the Court had been sitting at Mhow to whom would that reference have been made? Why, the application would have had to be made to Sir William Mansfield, who would thus have had to decide a question involving the legality of his own act. Such inconveniences would repeatedly have occurred if the trial had taken place at Mhow; and surely if it were not to take place at Mhow there was no other Court in India in which the trial could properly have taken place. To have removed it to any other part of India would have been to cast an apparent slight on the officers of the Bombay Presidency. If the court-martial was not to meet in its natural place, then it was much less painful to the officers in India that it should be taken to England. He could not believe that hon. Members were serious in desiring that the trial should have taken place, if at all, in India. Everybody, he thought, had acknowledged that the public mind was, and very naturally, much excited by the accounts received from India. Surely, then, if there was to be an investigation, it would have been throwing away their pains and trouble to have held it at such a distance as India. It would at once have been said that the Government were trying to shield the Indian authorities from the publicity of a full and searching inquiry. The right hon. Gentleman opposite had condemned the Government for giving any papers on the subject. He quite agreed with the right hon. Gentleman (General Peel), that it was highly undesirable that the House of Commons should habitually make itself a court of appeal for the revision of the proceedings of courts-martial: it was quite as undesirable that it should constitute itself into a court of appeal in any case, whether affecting military or civil affairs. It was, however, useless to argue, when a case had caused very wide-spread popular excitement, when the public believed, whether rightly or wrongly, that injustice and oppression had been, committed, that the 53 Government ought to try and suppress discussion on the subject in the House of Commons. He would have been very glad to have been able at the outset to have given a full explanation of all the circumstances of the case; but when he was unable to do so, he thought the House was perfectly entitled to all the information upon the subject which the Government had it in its power to give. He really could not see in what way the Government could be held responsible for encouraging discussion unduly. The late hon. Member for Brighton (Mr. Coningham) insisted on reading extracts from a book purporting to be a report of the Mhow Court Martial, and when called to order for so doing, the Speaker decided that the hon. Member was at liberty to read from the publication, The Government felt, under these circumstances, that if the proceedings of the Mhow Court Martial were to be cited in the House, it would be well that the House should have a correct and authentic statement of what had taken place. His noble Friend at the head of the Government appealed, but in vain, to the late hon. Member for Brighton not to raise a discussion on the matter until the trial of Colonel Crawley had been concluded. He was confident that no word or act of the Government last Session could be construed into an encouragement of a public discussion on these points. As to laying the proceedings of the Aldershot Court Martial on the table, as he explained the other night, it seemed only just and reasonable that the House should be in possession of n. report of the trial on which Colonel Crawley was acquitted as well as of that which had led ! to his being accused of oppression and injustice. The remaining papers had been laid on the table at the desire of His Royal Highness the Commander-in-Chief, in order to explain the course he had taken in the matter, particularly with regard to the discussions which had arisen with Sir Hugh Rose. He fully agreed with the right hon. Gentleman in what he said, as to the inexpediency of producing many of the papers that had been asked for; but it was not from one side of the House only that such demands were made. He was astonished to see on the paper a notice of a Motion by the noble Lord the Member for the East Riding (Lord Hotham), for the production of a confidential Report. He hoped that, as the noble Lord had not yet risen, he had abandoned his intention of proceeding with 54 that Motion; but it was very extraordinary that such a notice should have been given at all by any one who knew what a confidential Report was. Hon. Members opposite had certainly taken a strange method of showing their solicitude for the discipline of the army. A noble Lord asked for a confidential Report. Another hon. Member, supposed to represent the officers of the army, impugned the decision of the Commander-in-Chief, and his right to bring the commanding officer of a regiment to a court-martial whenever and on whatever charges he deemed proper. It was indeed an extraordinary way of maintaining the discipline of the army to assail the authority of the Commander-in-Chief. He did not intend to follow the observations which had been made upon the conduct of the prosecution. The Judge Advocate General was prepared to speak upon that point. He had stated the grounds upon which it was thought necessary by the Government to summon Colonel Crawley home to stand his trial; he had explained why it was thought necessary to produce the papers which had already been laid on the table; and he had also explained the reasons why it was deemed expedient to try Colonel Crawley in this country rather than in India. It only remained for him to say, that, in the opinion of many military authorities, that which had occurred had not been in any manner prejudicial to the discipline of the army. Hon. Gentlemen opposite had never explained in what way discussion was fatal to discipline. What was the discipline which had been so grievously injured by the conduct of the Government? He imagined that discipline consisted in summary but strict justice, and he could not see how it should be hurtful to its interests that it should be sometimes discussed in the House of Commons, or why it should be necessary to hide everything connected with the army in the Horse Guards, or in the records of the Judge Advocate General's office. There was something which would be far more fatal to discipline than the procedure adopted in Colonel Crawley's case. It would be fatal, indeed, if the discipline of the army should be allowed to degenerate for a moment into tyranny. The suspicion even that it had ever degenerated into tyranny would be most injurious. He believed that the army ought to be as jealous of the purity of the administration of military justice, of the purity of its discipline, as it was of its honour and of its reputation for courage. 55 A most serious stain was cast upon the purity of military justice by the statements made in the newspapers and repeated in that House last year; and there was no way in which that discipline could be vindicated except by a full, complete, and impartial investigation. Such an investigation had taken place at Aldershot, and no Member of that House rejoiced more than he did that Colonel Crawley had been able to relieve himself from the imputations which had been cast upon him, and that the discipline of the army and the reputation of its commanding officers had been so clearly vindicated.
§ LORD HOTHAM
said, he wished to say a few words, as he had been so pointedly alluded to by the noble Lord. The noble Lord would have done better if, to quote a homely proverb, he had looked at home and addressed himself rather to the hon. Member for Andover than to him. He could assure the noble Lord and the House that if the hon. Member for Andover had not moved for two confidential Reports, no notice of a Motion would have been given by him for papers of that kind; but when he saw the notice given by the hon. Member for Andover, he imagined that the hon. Member expected to find in those Reports some information favourable to the cause he supported, he thought it was better, instead of objecting to the production of two confidential Reports, to move for all such Reports as had been made, so that they might have all the information that could be afforded to them. That was the sole reason for his having given the notice which the noble Lord had pleased to censure. He never for a moment believed that a Government could have been found weak enough to produce confidential Reports; but, at the same time, he was not disposed to leave them at liberty to present such a case as might have suited the hon. Member for Andover, and to keep back information possibly throwing light on the other side. He concurred in the general principle which had been laid down by his right hon. Friend the Member for Huntingdon (General Peel); but it had been admitted that this was entirely an exceptional case, and exceptional diseases always required exceptional remedies. He admitted fully the value of the right hon. Gentleman's principle, but when such things were done as had been done in this case, there was more to fear from mystery and secresy than from letting the whole truth be known to the country. He should 56 be glad to withdraw his Motion for the production of the confidential Reports, if the hon. Member for Andover would do the same. With reference to the other notice he had given, he had felt that great injustice had been done to two most distinguished officers, Sir Hugh Rose and Sir William Mansfield, and his notice of an Amendment on that point stood on a different footing from the other. The question related to the arrest of the sergeant-majors, and also to the keeping them under arrest. When the hon. Member for Andover moved for papers relating to the arrest only, he thought, in justice to Sir William Mansfield, that he should have an opportunity of showing the grounds on which he acted in ordering those men to be kept under arrest. If the hon. Member had made neither of those Motions, he should not have moved in the matter. If he thought great injustice would have been done to Sir William Mansfield if only the Reports moved for by the hon. Gentleman had been produced, he thought so now still more after the depreciatory remarks which the noble Lord (the Marquess of Hartington) had made in speaking of Sir William Mansfield. He had never had the honour even of seeing Sir William Mansfield, and, therefore, he made this statement from no motive of private friendship. The noble Lord had spoken of the necessity of upholding the authority of persons filling high situations; but how little had the noble Lord acted in accordance with his own proposition, when he spoke in the manner he had done with regard to the Commander-in-Chief at Bombay. That alone would prevent him withdrawing that part of the Motion which had reference to Sir William Mansfield. It was impossible to suppose, knowing the source from which the hon. Member from Andover got his information, that he was ignorant that the question of the legality or illegality of the imprisonment of the sergeants was about to be tried by a Court of Law, If the hon. Gentleman was not ignorant of that, he thought it would have been more decorous and gracious, and more in accordance with custom, if he had abstained from bringing before the House a question that was about to be tried in Westminster Hall.
THE MARQUESS OF HARTINGTON
said, he was quite unaware what observations of his were referred to by the noble Lord. He had stated that it was not wonderful if in one particular instance, and 57 under circumstances of great difficulty, Sir William Mansfield had committed an error of judgment; but the Commander-in-Chief had expressed an opinion that, all through these trying circumstances, the gallant General had been actuated by a wish to do justice, and to promote the interests of the service. He (the Marquess of Hartington) had already admitted that Sir William Mansfield was an officer of the highest distinction, and he had stated that it was that which made it the more extraordinary that in this one instance he should have committed what the Government thought was an error of judgment. Not one syllable of what he had said was intended to depreciate the character of Sir William Mansfield. On the contrary, through all this transaction he considered that Sir William Mansfield had acted in a most straightforward and generous manner. The gallant General had been, as he felt certain he would now be, the last man in the world to support hon. Gentlemen on the other side in questioning the opinion of the Commander-in-Chief.
§ MR. O'REILLY
said, that he had no desire to question the finding of the tribunals which had tried Paymaster Smales and Colonel Crawley, and he should as little ask the House to canvass the verdict of a jury in Westminster Hall. He also quite agreed with the right hon. Gentleman (General Peel), that the discipline of the army and the conduct of the military authorities in particular cases should not be canvassed in that House. There was, however, one thing most essential in order to maintain the discipline of the army, and that was that the certainty — the known certainty—that the rules of the law and of universal justice would be observed equally by the highest and lowest authorities in the army. When these rules appeared to be infringed, it was the duty of that House to see that the law of the land and the majesty of justice were sufficiently vindicated. He had submitted two questions to the Under Secretary of State for War which the noble Marquess told him he could not answer within the ordinary limits, and he had, therefore, reserved them for the present occasion. One of those questions the noble Marquess had virtually answered in the speech he had just made. It was, whether the 18th Article of War was still and had been in force during the last two years. This Article was as follows:No officer or soldier who shall be put in arrest or confinement shall continue in such arrest or 58 confinement more than eight days, or until such time as a court-martial can be conveniently assembled.The noble Marquess had answered this question in the affirmative. The last clause implied, that when more than eight days elapsed there must be charges standing against the person under arrest, and that steps must be taken to assemble a, court-martial. His second question was, whether the placing Regimental Sergeant Major Lilley, and Troop Sergeants Major Wakefield and Duval, of the 6th Inniskilling Dragoons, under close arrest for an indefinite period—namely (according to the terms of the order of Sir William Mansfield, dated May 6, 1862), "until the proceedings in the trial of Captain Smales are entirely closed," a period which proved to be one of more than twenty-eight days —was contrary to the first quoted of the Articles of War, and illegal. He had also inquired whether it was lawful in the army to prevent a prisoner on his trial from having access to the witnesses who were to be called for his defence. He had put that question to the highest authority on military law, and had been informed that some high military authorities held that there were cases in which a prisoner on his trial might be lawfully debarred from access to his witnesses. The Judge Advocate General, however, stated that there was no clearer principle of law and justice than that a prisoner was entitled to have the freest access to the witnesses he wished to call in his defence An order of Major General Farrell was on record, dated April 26, 1862, at which date Captain Smales was on his trial, and the names of the three sergeant-majors had been given in as witnesses for the defence. It was as follows:—You are to keep the Regimental Sergeant Major Lilley and Troop Sergeants Major Wake-field and Duval in close arrest, under sentries, to forbid any one to have access to them, except under your own express permission.The second order was Sir William Mansfield's, and dated May 6:—The sergeants-major are not to be released from arrest until the proceedings in the trial of Captain Smales are entirely closed.He thought the House must now be convinced that Mr. Smales, when on his trial, had not enjoyed free and entire access to all the witnesses for his defence. He now came to the question, who was accountable for these breaches of military law? For the first part of the arrest of Lilley, General 59 Farrell appeared to be responsible, and for the latter part General Mansfield. Inferring that the military authorities at home considered it undesirable to bring to trial such distinguished officers as General Farrell and General Mansfield, he wished to know what steps had been taken by the authorities to render it certain that such conduct would not be repeated, and to let the soldiers in the army know that they would not again be subject to such illegal and unjust proceedings. Nothing was more important than that every officer and soldier should have instilled into him a feeling of entire confidence that he would receive perfect justice. The proceedings in the case of Colonel Crawley had been read and commented on in every barrack-room in the kingdom. Soldiers knew perfectly well the rules of the service, and there was not a private in the army who did not know that the sergeants-major were confined under arrest for more than eight days, without any charges against them, or steps being taken to bring them to a court-martial. It was equally well known in the army, that to deny a prisoner free access and communication with his witnesses was illegal and unjust. The House would, therefore, feel it desirable that the soldiers of the army should know that steps had been taken to prevent a repetition of this interference with law and justice. It was not for him to suggest what steps ought to be taken; but if, among the endless memoranda and appendices to verdicts and findings growing out of this case, there had been one short General Order, stating that it had come to the knowledge of the Commander-in-Chief that through inadvertence and without ill-motive a violation of the law and an interference with the course of justice had unhappily occurred, and that his Royal Highness, therefore, wished to call the attention of commanding officers of troops to what the law really was under the 18th Article of War, and to remind them that it could not be violated—had such an order been written and read on the parade ground of every battalion of Her Majesty's troops, it would have done more to confirm and extend the confidence of the army in the administration of military justice than a thousand discussions such as those which had taken place in the House of Commons could do to shake it.
§ SIR JAMBS FERGUSSON
said, he did not think it possible that the scandal affecting the 6th Dragoon Guards, which had 60 caused so much excitement out of doors, and with regard to which so extraordinary and exceptional a course had been taken, could fall into oblivion without seriously committing the reputation of many valuable public servants of the Crown. The discussions, at the same time, which had taken place in that House must have taught a serious lesson to persons in high position, and have shown them that the best course in difficult cases was to follow established usage. For himself, and those by whom he was surrounded, he disclaimed the imputation thrown out by the noble Lord (the Marquess of Hartington) that they represented only one portion of the army. Some Gentlemen wished to deduce from the unfortunate and painful circumstances of this case the conclusion that some change was required in the law and practice of courts-martial. On the contrary, he thought it discreditable to persons in high positions that they should seek to escape by such a course; for he ventured to think that the position of perplexity, difficulty, and discredit in which so many in high positions now found themselves was to be attributed to their departure from all previous custom and usage. He was not going to narrate over again all the incidents of the Mhow Court Martial; it could hardly have passed from the minds of hon. Gentlemen how moving were the terms and how extravagant the statements with which the case was introduced to the House. In fact he should have passed them over altogether had it not been for the disingenuous manner in which the noble Marquess had thought fit to gloss over the very remarkable speech of the hon. Member for Andover made in June last; but having had a recent opportunity of refreshing his memory with regard to the terms then used, he must say that the hon. Member for Andover owed an explanation to the House very different from any which he had yet offered. The noble Marquess would have it inferred that the hon. Member's charge strictly referred to the illegal imprisonment of the three sergeant-majors; whereas the gravamen of the hon. Member's charge consisted in the cruel treatment to which it was alleged that the three non-commissioned officers had been subjected in the course of a long and illegal imprisonment. The hon. Member told the House thatThe place where Sergeant Major Lilley was confined was a single room in a bomb-proof building, formerly used as cavalry stables, and which had since been pulled down;-is unfit fur the occu- 61 pation of European troops. It was almost impossible that the roof of this building could get cool, as it was so formed that the amount of heat absorbed by it in the day could not be carried off by night. In a room, then, more like an oven than a human habitation was Sergeant-Major Lilley imprisoned, and that room was shared by his wife, who was confined to her bed by a diarrhæa attending the last stage of consumption."—[3 Hansard, clxxi. 434–5.]Further on he added that, "incredible as it might appear, Colonel Crawley ordered the sentry to be stationed inside the room;" and the picture was completed in these words:—There, in the presence of strange men, renewed from day to day and from hour to hour, and posted three feet from her bed, all the functions of nature had to be performed by this dying woman.From the observations of the hon. Member it might have been supposed that the confinement of Sergeant Major Lilley was continuous in one single building; but subsequent explanations showed that he had been confined in two separate buildings, the first of which was equal to that occupied by a captain in his own regiment. On a subsequent occasion the hon. Member certainly explained thatSergeant Major Lilley was at first confined to his own quarters, where he had several apartments; but that when he was ordered under confinement he was removed from his proper quarters to others where he was confined to a single room. It was in the single room that the sentry was posted. On that point he spoke from the testimony of two eye-witnesses."—[3 Hansard, clxxi. 1442.]
§ SIR JAMES FERGUSSON
said, he had copied the extracts which he had read from Hansard's Parliamentary Debates, and he had no objection to place the papers in the hands of the hon. Member for the purpose of verification. [3 Hansard, clxxi. 432.] He had also in his possession the report as it appeared in The Times. The order for the release of the sergeant-majors, according to the hon. Member, "found one of them a raving lunatic, and he was conveyed to the hospital suffering from brain fever." But what he wanted to fix upon the hon. Member was the statement that Sergeant Major Lilley was confined in a single room, in which the sentry was posted within two or three feet of Mrs. Lilley's bed. And he called on the hon. Gentleman, if he valued his word—if he valued the honour of the House, in which unguarded and unsupported statements ought not to be made—to give the names of the two eye-witnesses to whom he had referred. He was persuaded the 62 hon. Gentleman believed every word he had stated, and that he was incapable of exaggeration—the reputation which he enjoyed in the House placed him above such a suspicion; but unwittingly he had made himself the organ of most false and utterly unsupported statements, which all the evidence adduced upon oath in this country had refuted, and therefore he owed an explanation to the House different from any which had yet been given. The case of Sergeant Major Wakefield might be disposed of in two words. He had been suffering from excitement caused by drink taken during his imprisonment, and the name of the sergeant was known through whose instrumentality he obtained it. He certainly received medical treatment; on the first day after his release he had a seidlitz powder given him, on the next day a black draught, and on the third day he was dismissed well, without having been confined to hospital at all. The statements of the hon. Gentleman naturally did not rest. They were repeated and amplified day after day by clever and, perhaps, unscrupulous pens writing in the public press —though he would not say unscrupulous, because many of the persons repeating the statements believed them as much as the hon. Member did — but his statement being quoted again and again in leading articles in powerful journals, he thus lent his name to the dissemination of charges altogether unfounded. In particular, the case was taken up by a very able writer, whose reputation was deservedly wide, and whose literary sobriquet was so well known as almost to have acquired an individuality. Judging that gentleman merely by his public writings and without reference to private acquaintance, he believed him to be actuated by a sincere desire to oppose wrong in every shape; and if he had been betrayed into extreme statements—and he had been betrayed into very extreme statements—he still held him to be incapable of writing a word which he did not believe to be true. Unfortunately the tissue of falsehoods put forward without contradiction for several weeks did all the mischief. There was very great excitement when the hon. Member brought forward the Motion of which he had given notice, and within a fortnight afterwards a most important circumstance took place. The War Office had not far to go for suggestions. There were then in this country gentlemen more than any others interested in the reversal of the decision of the Mhow Court Martial 63 and in the ruin of Colonel Crawley; and one of them, a clever, and, as he believed, most unscrupulous man, was suffering under the sentence of the court-martial at Mhow, by which he had been dismissed. The ways of the War Office were not unknown to him; he had suffered vicissitudes in his career, he had fallen and risen again, and he knew how to besiege the War Office day after day till the door was opened to him. Late in 1862 the proceedings of the court-martial which had condemned him arrived in England, and in November of the same year the Judge Advocate General —as had been elicited by a question in that House—passed on the proceedings of that court-martial to the Commander-in-Chief. The noble Marquess said that he had not approved those proceedings; at any rate, he had not said one word against them which appeared in any public record. His Royal Highness the Commander-in-Chief founded two Memoranda on what he at least took to be the consent and approval of the Judge Advocate General, for it was impossible to mistake the manner in which His Royal Highness dealt out his opinion, in no measured terms, to the officers concerned. For months after Mr. Smales had been gazetted out of the service all his solicitations were vain; but after the statement of the hon. Member for Andover in that House a fresh proceeding was concocted by the Judge Advocate General, and, without a due regard to the importance of such a step, the Queen was advised to pardon Mr. Smales. He should like to know what reasons could be given for the right hon. and learned Gentleman's change of opinion, except the pressure caused by the ex parte statements which were so movingly repeated in that House. Upon the reversal of Mr. Smales's sentence followed the order for the court-martial upon Colonel Crawley. And here he must notice two absolute novelties as startling, and even more dangerous to the due administration of justice and to that confidence in the military authorities which it was desirable to preserve than that which had reference to Mr. Smales's case. It was now on record, and could not be doubted, because they had it, in addition to all the previous evidence, on the admission of the noble Marquess that night, that that court-martial was ordered on ex parte statements, and the ex parte statements, too, of those who had more reason than anybody else to wish for Colonel Crawley's ruin. Before he was 64 put upon his trial, no opportunity was afforded to Colonel Crawley of answering the charges made against him; although it was the practice of the service to give such an opportunity to any private soldier who might be accused by a comrade. Officers of the army had a right to look to their superiors to sustain them, and did not expect to be condemned unheard. It had not been their practice hitherto to rush to the press as a means of defending themselves. It was on record, however, that Colonel Crawley, on hearing a statement which accused him of inhuman conduct towards Mrs. Lilley, sent an officer immediately to ascertain whether it was true that a sentinel was posted within her room, and found that that was not and never had been the fact; and, moreover, the sentinel was removed still further from the outside of her door. There had, then, in this case been a plain disregard of the fundamental rule of the service, that no one should be brought to trial till he had had an opportunity of offering explanations in answer to the charges made against him. With regard to Adjutant Fitzsimon's letter of complaint against his commanding officer, it was said that there had been a refusal to forward it; but there had been no refusal— its withdrawal had been advised by Major General Farrell entirely out of regard for the writer's prospects—that he, a young officer, might not do a foolish thing and fly in the face of authority. The letter, at all events, was insubordinate; and it was not shown that in urging its withdrawal Major General Farrell was actuated by anything but good feeling towards the writer. At any rate, Colonel Crawley was not in fault in the matter, but forwarded the letter to his superior, as he was bound to do, accompanying it, as was the ordinary course, by his own remarks upon it. Moreover, what was the practice when a junior officer forwarded a letter to head-quarters in any way except through his commanding officer? Why, that it was immediately sent back to that commanding officer for his comments. What was the reason that Lieutenant Fitzsimon's letter, with Colonel Crawley's remarks upon it, was not sent for from India before the extreme and extraordinary course was adopted of ordering him home to take his trial? It had been said, forsooth, that India was so far off. But why, in the name of justice, was one measure to be meted out to an officer who might be stationed in Edinburgh, and an- 65 other to an officer who was stationed abroad? It might, indeed, have caused a few weeks' delay, but when they saw how long the Government left a trial like that of the Alexandra hanging over, to the grievous prejudice of the parties concerned, let them not say that time and distance prevented their following the ordinary course of justice in regard to Colonel Crawley. Colonel Crawley, however, was brought home. The noble Marquess had not been very ingenuous in pointing out that Sir William Mansfield would have had to pronounce in a case in which he was implicated, because the noble Marquess must have known that it was not Sir William Mansfield, but Sir Hugh Rose, the Commander-in-Chief in India, who possessed the power of dealing with such cases. The noble Marquess must be sensible how precipitate and hasty the conduct of the Government had been. Had they waited three weeks or a month after the court-martial was ordered, they would not only have had the letter of Sir Hugh Rose, answering every part of the statement of the hon. Member for Andover, but the letter of Adjutant Fitzsimon, if forwarded in the ordinary course. Moreover, they would have had the very Indian newspapers, the first channels of the slander, recanting and repairing their error, and stating that they had been deceived by the letter of Mr. Smales. [The hon. and gallant Member here read an extract from The Times of India withdrawing all the charges made in that paper against Colonel Crawley.] He did not wish to enter upon the subject of the court-martial's decision, although some hon. Gentlemen desired to make that House a court of appeal against the decision, and the noble Marquess did not seem to treat that as an improper proceeding. But Colonel Crawley, with every disadvantage, with the issue narrowed in a way which he complained made it impossible that full justice could be done him, although prosecuted with zeal and ability, and although denied the production of documents essential for his case, yet triumphed so completely over every allegation that there was not a question as to his unanimous acquittal. One act of public honour he must do to the learned counsel who conducted the prosecution. The learned counsel had been, he must say, rather hardly dealt with. It had been said that he was the Deputy Judge Advocate General, but he acted, by a most improper arrangement, as the counsel assist- 66 ing the official prosecutor. A gentleman of his eminence at the bar employed for such a purpose, and opposed as he was by able counsel on the other side, would naturally think it his duty to leave no stone unturned in order to procure that conviction which to his mind no doubt seemed consistent with justice. With respect to the hon. Member for Andover, that hon. Gentleman had two courses open to him— he had to offer an apology to that House for having, unwittingly he believed, been the vehicle of gross slander and unscrupulous falsehood.
§ MR. DUDLEY FORTESCUE
rose to protest against the hon. and gallant Gentleman's language. He did not think it was at all parliamentary that an hon. Member who had been in error on some points, and who had acknowledged that he had been so, should have such epithets as "gross slanders" and "unscrupulous falsehoods" coupled with the mention of his name, because in the discharge of his duty he had called the House's attention to a very grave public scandal, and which, as he would at a later period point out, had a great deal more foundation than the hon. and gallant Gentleman appeared to suppose.
§ SIR JAMES FERGUSSON
said, he did not retract a word. He believed the hon. Member for Andover sincerely believed all he said, but he had been made the vehicle of falsehood. He would not make quotations from the proceedings at the court-martial for the purpose of proving this; he would leave hon. Gentlemen to satisfy themselves on the point. The hon. Member had two courses before him — to apologize to the House, or take exception to the proceedings of the court-martial. He had not adopted either, but raised fresh issues. That was a course not consistent with what he thought fair in regard to this case. He hoped and believed that the credit and position of the officers impugned would not suffer from what had been said, but he still thought great and grievous injustice had been done to them. There was no department on which that injustice rested more heavily than on that of the Judge Advocate General, and he did the right hon. Gentleman no wrong in saying so, as he had the full opportunity of reply.
said, that before entering upon the subject to which the attention of the House had been called that night—namely, the Crawley Court 67 Martial—he would in a few words answer what had been said by the hon. and gallant Baronet opposite (Sir James Fergusson), with respect to the Mhow Court Martial. There had been a little confusion here by the mixing up of two opinions he had given on the subject with the observations made by his noble Friend the Under Secretary for War. The course he had taken on that occasion was a clear and simple one; he only regretted that it was not in accordance with the practice that the opinions of the Law Officers of the Crown should be produced, inasmuch as they would have made this evident. The facts were these:—The proceedings of the Mhow Court Martial were sent to him without any additional evidence or statement of facts whatever. He gave an opinion simply on the face of the proceedings, that opinion being founded on various objections which he thought applied to the whole course of the proceedings. At the same time, he felt, that as the proceedings had been confirmed in India, there were only two courses open—the one to advise Her Majesty to grant a pardon, the other to take no notice of what had occurred, but to hold the finding good, inasmuch as there was no power of revision. He stated, in his first opinion, that if it had come before him in the ordinary course of business in this country, he should have recommended that it be sent back to the Court; but he could not say that it was illegal. At the same time, he stated his opinion, which he still retained, that Captain Smales had been guilty of a grave military offence in writing the letter, and he arrived at this opinion independently of the charge. Upon that opinion his noble Friend stated what took place in this House, and upon it Captain Smales was gazetted out of the regiment. Afterwards, further papers were laid before him, showing the manner in which Captain Smales's witnesses had been treated; and he then considered the proceedings so unfair that he advised that Her Majesty should be advised to grant that officer a pardon. These were the circumstances of the case. It was, of course, competent to any one to question the opinions which he gave; but he entertained no doubt with respect to them either when he gave them or at the present time.
He now came to the question which was immediately before the House. He could assure the right hon. and gallant General opposite (General Peel) that, in common with 68 him and with every one who had anything to do with the administration of justice in the army, he deprecated the discussion of the proceedings of courts-martial in that House, but he was individually glad that his hon. Friend the Member for Andover (Mr. Fortescue) had made his Motion, because it gave him an opportunity of laying before the House the steps which he had taken with reference to this particular inquiry, and the principles upon which he had acted, and, at the same time, of answering the objections which had been urged against himself and against the office with which he was connected. If he understood the right hon. and gallant General rightly, he said that the Government were wrong from the first—wrong in ordering the court-martial, wrong in holding it in this country, wrong as to the manner in which it was conducted, and wrong in the course which they had since pursued with reference to the production of papers. On all of these charges he would make a few observations. As to the papers, he must remind the right hon. and gallant General that the proceedings of a court-martial were in reality the record of a great public trial. Now, if there was one principle which was more characteristic of our Constitution than another it was that there should be nothing of the nature of secresy connected with a public trial; and although he deprecated in the strongest terms the discussion of the proceedings of courts-martial in that House, the abstinence must proceed from the discretion of the House itself, and it was neither desirable nor possible that the Government should, by any arbitrary exercise of power, stop discussion by refusing to lay the record of a great public trial upon the table. The other papers laid before the House were memoranda, or documents of that description. He (Mr. Headlam) agreed that there was a difficulty about laying them on the table, for one of them led to another, and it was difficult to say when they were to stop. It was possible that in their production the Government might have gone too far, but if an error had been committed it was not one of a serious description. With reference to such courts-martial as these at Mhow, and on Colonel Crawley in England, it was not for the Government, when so strong an opinion had been expressed, to stop discussion by refusing to produce the papers. The next point was, whether the Government were right or wrong in ordering a court-martial on Colonel Crawley, and in 69 deciding that it should take place in this country. Let him carry the recollection of the House back to the time when the court-martial was ordered. There were then a few plain, broad, simple facts which had excited much attention in the public mind, and exercised considerable influence in that House—a few broad and simple facts which the Government were not in a condition to contradict, and which they were not at this moment able to contradict. He alluded to the facts that Sergeant Major Lilley was up to the time of these occurrences a perfectly good soldier, of the highest possible character; that he came to his end, and his wife almost contemporaneously, under circumstances signally calculated to excite compassion in the public mind; that he and the other sergeants who were put in prison were never brought to a court-martial; and that no very clear grounds were then stated, nor could be now stated, why they were incarcerated. In addition to all this, there stood out the fact, that the name not only of the commanding officer of the regiment, but the names of officers of still higher rank in India, were mentioned in connection with these facts. Suppose the Government had adopted the course which he supposed the right hon. and gallant General would have pursued, and, getting public opinion at defiance, had said, "We will trust entirely to the officers of India. We will not have an investigation in this country, but will leave it to them to say whether there shall be a court-martial." [General PEEL: That is not at all the doctrine which I laid down.] He understood the right hon. Gentleman to object most strongly to the interference of the Government and the order that the court-martial should take place in this country.
explained that what he said was, that if the Secretary of State had come to Parliament, and declared upon his responsibility that he would have an inquiry, in which justice should be done to all parties, that House would have been satisfied.
said, that was exactly what was done; but the noble Lord the Secretary of State, having promised an inquiry, was bound to have it in such a form as he considered best calculated to elucidate the whole case and satisfy the public. He put it to the House what would have been the consequence if the Government had refused to hold the court-martial in this country. If the court- 70 martial had taken place in India, the proceedings would not have been known in this country; the inquiry would have taken place under the immediate control and superintendence of the very officers whose names had been mixed up with the charge. Those officers would have been placed in a position of the greatest doubt and difficulty; they would have been subjected to grave and unjust suspicions, and in the end there would have remained in this country a strong impression that a deed of cruelty and oppression had been committed in a distant land. Mark what had been the result of the proceedings as they had actually taken place. There had been a trial conducted under the superintendence of men of the highest rank and position in the army, who were entirely unconnected with the charges, and whose verdict was entitled to the highest possible confidence from the country. The proceedings of each day were published by the press; and the result was that the impression which had been produced by the facts to which he had referred was gradually obliterated until at the end, owing to the manner in which the trial had been conducted, there was a general acquiescence in the verdict which was returned. Under those circumstances, he had no hesitation in saying that the decision of the Government, that the trial should take place in this country, was a wise one. He did not wish to underrate the evils which were inseparable from these proceedings. The trial of a commanding officer for the abuse of his powers, whether he proved innocent or guilty, was in itself a very serious thing; nor did he wish to underrate the less important consideration of the cost of the investigation or the hardship to Colonel Crawley, although against that must be set off the additional value to him of an acquittal in this country; but looking at the matter from the highest point of view, and having regard to the importance of maintaining the public confidence that justice was well administered by military tribunals, he maintained that it was infinitely better that the trial should have taken place in this country than in India. He now came to that part of the question for which he was more especially responsible—namely, the manner in which the trial was conducted; and the simplest course would be for him to stale frankly to the House every step which he took in the matter, and leave it to them to say whether he could have acted in a more 71 suitable manner. Let him, however, first say a word or two about the functions of his office, with respect to which some confusion appeared to exist. The duties of that office, as its name partially indicated, were somewhat anomalous. Certain of them were judicial and others connected with the functions of a prosecution. The judicial duties were to advise Her Majesty after the proceedings were over as to their legality, and to advise the Court upon any point which might arise in the course of a trial. These were the only judicial duties, the examination of the evidence and the consideration of the verdict rested entirely with the Court, and the Judge Advocate had nothing to do with them. On looking back to the history of his office, he found that it had been much more a prosecutor's office than a judge's. For instance, in the trial of General White-lock for his failure at Buenos Ayres, at the beginning of this century, the then Judge Advocate, Mr. Ryder, himself conducted the prosecution, performing the part which was on the late occasion performed by Sir Alfred Horsford, assisted by the Deputy Judge Advocate. He had no doubt that Mr. Ryder, in General White-lock's case, acted in conformity with the spirit of the time, but he appeared to have pressed the case in a manner hardly consistent with the practice of the present day. Coming to what took place upon the present occasion, he had to inform the House that after it had been determined by the higher authorities that Colonel Crawley should be tried in this country, instructions were sent to him (Mr. Headlam) to draw the charges. The evidence that was laid before him seemed to be such as would justify the placing of an officer upon his trial. Drawing the charges was, of course, a duty of the prosecution; but, at the same time, this duty was a part of the ordinary functions of his office. After having drawn the charges, he had next to give advice upon some points of evidence. After these steps a considerable interval elapsed during the reference to India, and at last, in October, Colonel Crawley arrived in this country, together with a large body of persons, who, it should be observed, were not divided into witnesses for the defence and witnesses for the prosecution, but were simply sent over from India under a general order from Sir Hugh Rose to the effect, that anybody who knew anything about the matter should be sent to England. He then communi- 72 cated with the Deputy Judge Advocate, and it was agreed between them that he should take the part of officiating Judge Advocate at the trial. It had not been customary for the Deputy Judge Advocate to take an active part in a trial, but it was thought that the importance of the present trial made it an exception to the general rule. The Horse Guards appointed Sir Alfred Horsford to conduct the prosecution, but did not give him the assistance of an attorney or counsel. A few days afterwards he received a letter from the Deputy Judge Advocate stating, that very naturally Sir Alfred Horsford had come to him for advice as to the manner in which the prosecution should be conducted. Now, let the House consider the position in which Sir Alfred Horsford, a gallant officer and a straightforward English gentleman, was placed. He was called upon, without the aid of counsel or attorney, to prepare a prosecution involving an immense complication of facts, and a great variety of evidence. Moreover, from the manner in which the witnesses were sent over from India, he had no knowledge of what each individual could state. In circumstances of such difficulty it is not to be wondered at that he went to the Deputy Judge Advocate for advice; who first gave him general advice, which afterwards became particular advice; and ultimately the Deputy Judge Advocate wrote to him (Mr. Headlam) that he was expected to give so much assistance to the prosecution that he could not follow out the original arrangement under which he was to be officiating Judge Advocate on this trial. In consequence of that he (Mr. Headlam) appointed Colonel Pipon, who had written a book upon the subject, and who was well acquainted with the duties of officiating Judge Advocate, and requested him to undertake that duty which he had discharged to the satisfaction, he believed, of all parties. After that arrangement the objection to the Deputy Judge Advocate General assisting Sir Alfred Horsford did not continue, and, therefore, he did assist him in getting up the case. Then came the question of how the trial was to be managed, and who was to assist Sir Alfred Horsford. He (Mr. Headlam) consulted the noble Lord at the head of the War Office and the Commander-in-Chief upon the subject. His first impression was that in a case of that magnitude it would be proper that an attorney should be appointed to collect evidence, to instruct counsel, and to assist the Horse Guards. Objections 73 were made to that course, on the ground that there was no precedent for it in the whole history of the army. That objection might have been got over had it not been further urged that there was a strong feeling in the army against introducing the practice of employing lawyers to conduct military trials. He did not himself entertain that feeling, but he considered it his duty on all occasions to consider the feelings of the army, and he accordingly, on this occasion, gave up his own opinion and consented that the Deputy Judge Advocate General should assist the prosecution at the trial. There were other reasons which induced him to come to this conclusion. The Deputy Judge Advocate had practised at the common law bar and in criminal courts with success, and had considerable experience. He was also aware of that gentleman's earnest desire that the trial should be a perfectly fair one in all respects —fair towards the accused, the prosecution, and the public, and with the usual zeal of civil servants on behalf of their departments, he was desirous that the duty intrusted to the office with which he was connected, should be properly performed. Strong language had been used upon this subject, but he would like to hear from any hon. and gallant Gentleman, what other course could have been taken. To have left Sir Alfred Horsford without assistance to conduct the whole case, with counsel of great eminence arrayed against him, would have been manifestly unfair, and would have made the trial a mockery. It was very easy to find fault with what had been done; but it was ! exceedingly difficult to say what better course could have been taken; and, after hearing all that had been said, he (Mr. Headlam) did not see what other course he could have taken for the public service.
In conclusion, he would wish to say a few words upon the subject of courts-martial in general. During the time he had held his present office he had had an opportunity of reading the proceedings of some thousands of courts-martial, and he was glad to be able to say that in ninety-nine out of one hundred, or even a larger proportion, justice had been well administered in the army, and in such a form as to do credit to the good sense and intelligence of the officers. No doubt there were some defects, such as want of uniformity in the punishments; but, speaking generally, the public had a right to place confidence in the mode in which military justice was administered, At the same 74 time, the legal machinery at the command of the Judge Advocate was most insufficient. There did occasionally occur cases, such as the case under consideration and that which occurred in Dublin two or three years ago, where the legal machinery at the disposal of the Horse Guards was found to be insufficient. In such cases, of course, the prisoner, from his station and the importance of the issues involved, would be able to obtain the best legal assistance. Therefore, in such eases, for justice to be done, the prosecutor or military man ought to have legal assistance also, but no provision for that assistance existed. Even if a prisoner should he provided, and the prosecutor also should be assisted by counsel, then the Court would be in a difficulty. The President, a military man, the head of a Court whose members were unacquainted with law, would be called upon to decide nice questions of evidence mooted by opposing counsel. As the law now stood, therefore, the Judge Advocate was scarcely in a position to grapple with success with great cases such as that under discussion, and it behoved the Government to consider whether or not it was desirable to introduce some change. All he could say was that he had made the best arrangement he could under the circumstances, and in favour of that arrangement he might urge that it separated the duties of prosecutor from the judicial duties of Judge Advocate. In reference to any change which might be made in the present system, he would, for his own part, observe that he believed the ordinary criminal courts of this country were the most perfect tribunals that ever existed for the trial of great and complicated causes. In those courts the evidence was in the first place collected and sifted by men whose profession made them conversant with the duty; it was then laid before counsel; and when the trial came on it was conducted by men somewhat in the position of his hon. and learned Friend the Attorney General, who managed it with the utmost gravity, dignity, and decorum; while the accused, on the other hand, had at his command all the ability and eloquence which the bar of England could afford. The result was that the trial proceeded without any wrangling between counsel, under the auspices of a Judge who would be sure to put a stop to any irregularity that might arise, and who, at the close of the proceedings, marshalled the facts of the case in the clearest possible manner for the consideration of the jury. 75 That so perfect a mode of procedure could ever be attained by our courts-martial we had perhaps no right to expect; but he could not, at the same time, refrain from expressing his opinion, that if any change were made in the present system, the object held in view ought to be to make it approximate as nearly as possible to the standard of excellence which he had just described.
§ MR. MOWBRAY
said, he was quite sure that there was one point in his right hon. Friend's statement which all would agree in—that he had stated with perfect fairness and frankness to the House that night all the proceedings in his own office connected with the court-martial on Colonel Crawley. But with respect to the Mhow Court Martial, he thought the House had a right to expect a further reference than that which his right hon. Friend had given. With respect to that court-martial, his right hon. Friend said that his course was clear and simple; but what was alleged in reference to that court-martial was, that the vacillating judgments which had been pronounced upon it tended very much to subvert the administration of military justice in India. Now, let him call attention to the particular dates of that court-martial. It was, he believed, concluded on the 9th of June, 1862, and its proceedings were confirmed by Sir Hugh Rose on the 11th of July, and they reached this country about the month of October, 1862. Some time in the month of November, those proceedings having come to my right hon. Friend s office, and full time for its consideration having been afforded him, he advised that the proceedings, and the sentence passed in accordance with those proceedings, were legal; and acting upon that opinion, the memorandum of the Commander-in-Chief was issued, and Captain Smales was gazetted out of the regiment on the 18th December, and his name disappeared from the Army List in January, 1863. Now, what he (Mr. Mowbray) complained of was that his right hon. Friend, while professing to make to the House a clear statement that evening on the subject, had given it no information with regard to the interval which elapsed between December, 1862, and June, 1863, and of the circumstances which were brought before him by the importunity of Captain Smales's friends, who were continually knocking at the door of the Judge Advocate's office. He (Mr. Mowbray) wanted 76 to know what were the circumstances which led him to change his mind, and having pronounced in November, 1862, that the proceedings were legal, and the sentence legal, that he should have advised that the proceedings should be set aside, and that a free pardon should be given to Paymaster Smales in June last year. If ever, he might add, there was a case in which his right hon. Friend should be careful that the proceedings of his department should not be marked by vacillation, it was the case of Indian courts-martial. He said so for a reason which had been well explained by His Royal Highness the Commander-in-Chief, who stated that—Whereas the Commander-in-Chief in England submits to Her Majesty the name of any officer who, having been tried by court-martial, is sentenced to be cashiered, and the actual cashiering does not take place until the Queen's pleasure has been taken, in India the flat of the Commander-in-Chief in that country is absolute, and no reference is made to the Queen's pleasure.That being the state of things, it was ail the more requisite that his right hon. Friend should have acted with the greatest caution and deliberation before he attempted to call in question the sentence of a court-martial so approved. If he thought that Captain Smales had been really guilty of a military crime, what was the evidence which had induced him to change his mind? But, be that as it might, his right hon. Friend had paid a very well-deserved tribute to the proceedings of courts-martial in general-—a tribute to the justice of which he (Mr. Mowbray), though he had not had the good fortune of his right hon. Friend in being connected for so long a time with his office, could, from his own experience in the office of Judge Advocate, bear testimony. In ninety-nine cases out of one hundred their proceedings were very satisfactory; but he must say that if there were any courts-martini in reference to which, more than others, according to his experience, technical accuracy was observed, it was those held in India. Indeed, so much so was this the case, that he had frequently seen proceedings sent back for revision on points which he (Mr. Mowbray) should hardly have deemed of sufficient importance to require such a step. Unless, then, the proceedings of Indian courts-martial had very much changed within the last six years, his right hon. Friend, in impeaching the sentence of the Mhow Court Martial, took a step calculated very seriously to shake our military sys- 77 tem in that country. His right hon. Friend bad alluded to the question of the conduct of Sergeant Major Lilley. He (Mr. Mowbray) did not wish to enter into that question, which was a very painful one, but his right hon. Friend should have recollected, when speaking of him as a man of such high character, that the evidence at Aldershot showed that Sergeant Major Lilley was openly hostile to Colonel Crawley, and that he used violent language against him to the other sergeants, thereby increasing the ill-feeling already existing in the regiment against the commanding officer. Now he (Mr. Mowbray) said that evidence, which he held to be unimpeachable, did not bear out the exemplary character which had been given to Sergeant Major Lilley, There was a question put by the hon. and gallant Member for Long-ford (Major O'Reilly) which his right hon. Friend did not touch upon, and which, from the manner in which it bad been treated that night, promised anything but an end to the controversy—the question of the legality or illegality of the arrest. That was a question which appeared likely to be tried by the Courts in this kingdom. The noble Lord (the Marquess of Hartington) repeating the opinion derived from his right hon. Friend, had again stated that there could be no doubt as to the legality of the arrest; but his right hon. Friend could not have forgotten the opinion of the Judge Advocate of Bombay as to its legality. Stress had been laid on the Article of War that, was read by the hon. and gallant Member for Longford; but was his right hon. Friend aware of the construction put by the highest military authority of the age (the late Duke of Wellington) upon that very Article? In 1844 the case of the imprisonment of two officers of the 76th Regiment of Foot was brought before the House, and Lord Hardinge was asked whether under that Article any officer could he kept in arrest more than eight days without being brought to a court-martial. Lord Hardinge said, "Certainly an officer can be kept under arrest for a longer time by order of the Commander-in-Chief." He (Mr. Mowbray) ventured to think that what could be done by order of the Commander-in-Chief in England could be done by order of the Commander-in-Chief in Bombay, and he would like to have had some more explicit statement of the grounds upon which the noble Lord gave so decided an opinion that the order for arrest was illegal. He 78 (Mr. Mowbray) now came to the latter part of the speech of the right hon. Gentleman, with respect to the manner in which the trial had been conducted by the department over which his right hon. Friend presided. In doing so, he could assure the House that he did not at all wish to lay himself open to the imputation which now-a-days was usually flung out by Gentlemen on the Ministerial side of the House about attacking an absent man. He was not going to attack the Deputy Judge Advocate. In all the commendations passed by his right hon. Friend upon that zealous, indefatigable, and most learned public servant, he most entirely concurred. When in office he had the pleasure of seeing how thoroughly he had mastered both the principles and practice of military law; he knew how assiduous he was in the discharge of his duties; he knew how impartial he was in his mind; and he was quite sure that if the Deputy Judge Advocate had erred at all it was through an earnest desire to do his duty to the department with which he was connected. As his right hon. Friend had said, among all those indefatigable men who served the Crown without the hope of that distinction which rewarded more public servants, not one was more zealous, more learned, or more able than the Deputy Judge Advocate. He would rather take issue with his right hon. Friend with reference to what he described as the difficulties with which he had to contend, and say that the fault rested with his right hon. Friend who seemed to have felt the difficulty, but had not the boldness to hold his own opinion against the Horse Guards. With respect to the mode of conducting the proceedings on the trial, his right hon. Friend said that the office and the duties were anomalous, and that in times past the post was more of a prosecuting than a judicial nature. He (Mr. Mowbray) rather thought that the proper definition of the judex advocatus would he rather the ether way—that it implied that the judex, or judicial part, was the more predominant, and that the advocatus had not the meaning which was commonly ascribed to it. His right hon. Friend referred to the case of Whitelock, and to a case when one of his predecessors, Sir C. Morgan, conducted the prosecution; but his right hon. Friend should recollect that it was through his instrumentality the change was made by which not only the Judge Advocate was not prosecutor, but that he cannot be a 79 witness for the prosecution. But what was his duty with respect to the prisoner? He found the law thus laid down in the last edition of Simmons on Courts Martial, a book of admitted authority—Mr. Tytler considers that the Judge Advocate is bound to assist the prisoner in the conduct of his defence; but it is more in consonance with the custom of the service that the Judge Advocate should only interfere to the extent to which the Court itself is bound to interpose, to take care that the prisoner shall not suffer from a want of knowledge of the law, or from a deficiency of experience or of ability to elicit from witnesses, or to develop by the testimony which in the course of the trial may present itself, a full statement of the facts of the case as bearing on the defence. To this end the court-martial and Judge Advocate are bound, it is conceived, to offer their advice to the prisoner. Justice is the object for which the Court is convened and the Judge Advocate appointed. To this aim all their inquiries ought to be directed; and if in the prosecution of this design the prisoner should be benefited, the efforts of the Court or of the Judge Advocate will have been satisfactorily and legitimately exerted.What he said was, that in the part which his right hon. Friend allowed the Deputy Judge Advocate to take in the prosecution his right hon. Friend lost sight of the functions of his own office as Judge Advocate, because it was impossible to distinguish between the chief of the Department and its permanent official, or to forget the close and confidential relations which must usually subsist between them. His right hon. Friend said, that when Sir Alfred Horsford was appointed prosecutor the War Office gave him no counsel or attorney. Was he to understand that the right hon. Gentleman made the request that he should have counsel and attorney? [Mr. HEADLAM: No !] Then that was the very omission for which he blamed his right hon. Friend; because, in so exceptional a case, where the eyes of every one, not only in England but in India, were fixed upon the proceedings, it was of the greatest possible importance that the prosecution should be fully and efficiently conducted, so that no ground for finding fault should have been left, either as to the appliances with which the prosecution was got up, or as to the mode in which it was conducted. The right hon. Gentleman did not seem to have consulted the Horse Guards; and as to the taxpayers, the first complaint of their representative, the Member for Stoke-upon-Trent, was that no solicitor was employed. Many hon. and gallant Friends might differ from him, but, if he had been in office, he should have deemed it absolutely indispensable to have 80 funds to employ solicitor and counsel versed in criminal law, so that the prosecution should be fully and efficiently conducted. And in a prosecution where an expenditure of upwards ofi£18,000 had already been sanctioned, it was surely worth while to incur this trifling additional legal charge with a view to the greater regularity of the proceedings. His right hon. Friend said, that a great deal of strong language had been used with respect to the proceedings at the court-martial. He (Mr. Mowbray) was sorry to say, that if he were to venture to travel into that matter he should be compelled to assent to much of the criticism which they had heard and read in respect to it. He read day by day in The Times what passed, and it did not appear to him that the prosecution was conducted as, from his knowledge of criminal procedure, he should have expected that it would have been. There was not enough candour and fairness, and there was too much effort to gain a verdict. The introduction of new matter in a highly rhetorical and exceedingly ingenious and astute reply, though creditable to the intellect and ability of the hon. and learned Gentleman, could not carry any greater condemnation than was contained in the closing words, that he had tried to lead the Court through a gate unknown to the public and by a way avoided by the prisoner. If there was one thing which he had learnt from his experience in criminal courts, it was that the part of counsel for the prosecution in his opening speech was to be fair, candid, explicit, and above-board, never to introduce new matter after the mouth of the prisoner's counsel was closed, to avoid highly rhetorical language, and to always understate rather than overstate the facts with which he had to deal. With respect to the future, he could not but fear that both the proceedings at Mhow and at the Crawley Court Martial might have induced a feeling in the public mind that some change in the law of courts-martial was necessary. The noble Lord (the Marquess of Hartington) said, that "discipline should be summary but strict, not hid in the Horse Guards nor kept in the office of the Judge Advocate General." But in this case discipline, it was said, was neither summary nor strict; it had languished from October, 1862 to June, 1863; it was hid in the records of the Judge Advocate's office; and all the discussions and the questions asked in this House had failed to clear up this part of the transaction. 81 He regretted that it was not proposed to make some change in the Articles of War, be that in future the Deputy Judge Advocate should not take the course which he had taken in these proceedings. If a new system were adopted it was doubtful whether in 99 cases out of 100, perhaps in 999 out of 1,000, you would have justice on the whole better administered. But if you are to replace the old system by a new one, you must still bear in mind that the procedure at courts-martial could not be as technical as in other courts of justice; the feelings and traditions of the service must be respected; and besides this, the House should remember the words of Lord Macaulay—A strong line of demarcation must be drawn between soldiers and the rest of the community; they must be subject to a sharper code and to a more stringent form of procedure than are administered by the ordinary tribunals. For of all maladies incident to the body politic military insubordination is that which requires the most prompt and drastic remedies.Whatever changes were introduced should be introduced with deliberation, and he hoped that nothing which his right hon. Friend might have done would tend to shake the confidence felt in the administration of justice in our army either here or in India.
§ MR. SMOLLETT
said, he thought that the present debate was more a personal explanation of the Member for Andover than a Motion for papers, and in his judgment the statement made by the hon. Gentleman (Mr. Fortescue) last Session was not capable of modification. He thought the hon. Gentleman ought to have retracted the statement he made then, and that an apology was due to the House and to the country; for it was owing to that "sensation speech" of the hon. Member that the court-martial was ordered at Aldershot, and that £20,000 of public money had been thrown away. The hon. Gentleman had told them of the arrest of Sergeant Major Lilley on April 24, and said that he had been detained for thirty days; that the detention was illegal; that the sergeant was confined in a single bomb-proof room, so ingeniously constructed that it resembled a furnace, being heated by the sun during the day, and never cool during the night. He had said that his wife was imprisoned along with him, a woman so reduced by diarrhæa that she was unable to rise from her bed, and he complained of the indignity put upon her by the sentinels being placed in her apartment; and that 82 in this place, more like an oven than a human habitation, Sergeant Major Lilley was baked to death.
§ MR. DUDLEY FORTESCUE
protested against misquotations of his speech. He should be perfectly satisfied if the hon. Member quoted either from Hansard or The Times, but he had never used the expression "baked" to death.
§ MR. SMOLLETT
said, the hon. Gentleman had spoken of the prison as an oven, and confinement in an oven implied baking. The hon. Member told them, that so convinced were the relatives of Sergeant Major Lilley that he had been judicially murdered, that his relatives were determined to take criminal proceedings against the offender if he set his foot in England, and he stated that there were abundant witnesses to speak to the truth of that statement. That would be found reported in The Times. And the hon. Gentleman went on to ask if the person who had committed such acts was fit to command a cavalry regiment. Now, who that had heard that statement would have believed that Sergeant Major Lilley, during his arrest, had lived in a house of four rooms, and this was denominated a "bomb-proof cell, so heated that it resembled an oven." The hon. Gentleman had explained since that he alluded to the second house in which the Sergeant Major was confined. But this was not bomb-proof—it was a tiled house; and he (Mr. Smollett) begged to say, that both the houses occupied by Sergeant Major Lilley were better than many of those in which he had resided for months during the hot weather in India. Almost every allegation made by the hon. Member had proved unfounded; and he (Mr. Smollett) repeated that, in his opinion, the hon. Gentleman was bound to have made a retractation of statements reflecting upon an officer serving in a high position in India. He would not go into the details of the trial, or consider whether Colonel Crawley was an officer of tact and discretion, or whether that House should be constituted a court of appeal from courts-martial; but he would ask, who was really responsible for the discipline of the army I Was the Commander-in-Chief solely responsible; or was his responsibility shared with the Secretary for War? He thought that was a very important question. In illustration of this question, he wished first to advert to the case of Paymaster Smales, who was attached to the 6th Dragoons. He was found fault with by 83 Colonel Crawley, upon whom he retorted, that any slight irregularities of his were as nothing compared with those which the colonel was constantly in the habit of committing, and that the colonel made false certificates of his presence at musters and parades. That was a sort of letter that could not remain unanswered. It did not appear, however, that Colonel Crawley wished to treat Paymaster Smales with undue severity; but the latter declined to withdraw the letter, and seemed to have constituted himself the mouthpiece of the discontented officers of the corps. A court-martial was held upon Captain Smales, and the sentence of the Court was, that Paymaster Smales should be cashiered, and that sentence was confirmed by the Commander-in-Chief in India. A memorial was sent up from Paymaster Smales, which was unsuccessful, and he was removed from the army. Up to this time everything seemed to have been correct and consistent, if not just. When the matter was first mooted in that House, the authorities seemed to be resolute; the noble Lord (the Marquess of Hartington) told them that Paymaster Smales had been guilty of insubordination, and that he had been removed; and when the matter was brought forward by Mr. Coningham, he repeated that statement. But soon after a great commotion was got up, sensation speeches were made, and it seemed as if the Ministers had lost their wits, and they were then told that an inquiry should take place, and that the matter was referred to the Judge Advocate General. The Judge Advocate General was a legal gentleman, and legal gentlemen could generally be reckoned on to give such opinions as their clients might desire. After the adjournment of the House in July it was stated that Paymaster Smales had, under the advice of the Judge Advocate General, received a free pardon. Whilst the friends of Paymaster Smales were congratulating themselves on their success, Sir Edward Lugard, on the part of the Horse Guards, declared that His Royal Highness the Commander-in-Chief would pay no attention to the pardon, and that Paymaster Smales would not be reinstated, and would not receive his half-pay. Three months afterwards, just as Colonel Crawley was beginning his defence, the name of Paymaster Smales re-appeared in the Gazette as captain, and it turned out that Ire was to receive his half-pay from the date at which he was removed from his paymastership. Now he would ask the 84 House whether such an unseemly mass of capricious orders had ever before been issued in any matter of serious business? It was clear that one or two, if not three, Departments were at cross purposes with each other. This was apparent too from the way in which Colonel Crawley had been attacked. When the hon. Member for Andover made his sensation speech last year, the noble Lord the Under Secretary of State for War declared that he would not offer up Colonel Crawley or Sir Hugh Rose to satisfy public indignation. But in a short time a different course was adopted. The late hon. Member for Brighton (Mr. Coningham) attacked the authorities every night, stating that he did not want to see Colonel Crawley punished, but declaring that the Commander-in-Chief ought to be punished, and that execution ought to be done on Sir William Mansfield and Sir Hugh Rose. The noble Lord at the head of the Government at length consented that further inquiries should be made; and a week afterwards it was stated that Colonel Crawley was to be put on his trial in India. After a little more agitation it was intimated that he would be brought to trial in this country; and if some more pressure had been applied from below the gang-way, perhaps the command of the army would have been taken out of the hands of the Commander-in-Chief, and the entire regiment would have been ordered home from India. Now he should like to know to what Department of the State the country was indebted for this contradictory and incoherent course of conduct. If the various orders were issued by the Commander-in-Chief of his own free will, then he must be a person made of very squeezable materials. If his opinion was set aside by the Office of the Secretary for War, and he was coerced into that course of conduct, and if the War Office was influenced by the political demonstrations on that side of the House, the fact ought to be admitted, and then the blame could be placed on the proper Department. In whatever way the proceedings were viewed it appeared to him that not one single Department of the Government was free from blame. It had been said that it was an excellent thing that the court-martial had taken place at Aldershot, and that it was most desirable to disabuse the public mind of the erroneous impression which existed. He altogether demurred to that opinion, and did not think there was any necessity at all for holding the 85 court-martial. The hon. Member who had introduced the subject (Mr. Fortescue) was the cause of that court-martial, and nothing had struck him (Mr. Smollett) more than the absence of all notice of the salient points of his speech by the noble Lord the Under Secretary for War. The noble Lord took no notice of baking one soldier to death and driving another to a lunatic asylum, and altogether passed over the hard treatment to which it was said Mrs. Lilley had been subjected. If the noble Lord did not know these facts, he ought to have informed the House that he would institute inquiries into the matter. It might have been said that such inquiries could only have been made in India; but the hon. Member had declared that all the necessary witnesses were already in this country: if, therefore, a Commission had been appointed, it would have been clearly ascertained that the hon. Member for Andover had discovered a series of mares nests. He repeated, that he could not absolve the Government from blame, but no doubt the chief offender was the hon. Member for Andover, who, by his exaggerated and inflated statements, made without authority and without proof, had driven the Government into proceedings most mischievous to the discipline of the army and fatal to the interest of those whom he had wished to serve.
§ MR. DUTTON
said, he desired to express his satisfaction at the handsome manner in which Sir William Mansfield had been spoken of, and thought the explanation of the noble Lord the under Secretary, with reference to his previous remarks; on that distinguished officer, perfectly satisfactory. With reference to the allegation that Captain Smales had been deprived of a proper opportunity of getting up his evidence by the arrest of the sergeants, he was of opinion that it was disproved by the dates. Now, what were the dates of these transactions? The court-martial commenced on the 1st of April, 1862. Captain Smales commenced his defence on the 21st of April, and the men were not arrested until the 26th; so that if he did not get up materials for his defence he had ample time to see his witnesses, and, therefore, it was quite clear that he could not have been prejudiced by the men having been placed under arrest. With reference to the duration of the men's imprisonment, it was impossible to manage such matters in India in the same manner as they were managed in this country; and 86 he did not see how Sir William Mansfield could have acted otherwise than he had done, seeing that it took eight days to communicate from the place where he was to the scene of the court-martial. He found that grave suspicions existed of insubordination, and from the evidence of Sergeant Morton it appeared that the three parties who were arrested had been in the habit of holding meetings with closed doors. As Commander-in-Chief he was responsible for the discipline and safety of his regiment, and only acted with the decision which was the characteristic of a good soldier.
§ MR. E. P. BOUVERIE
said, he wished to protest against the attacks upon his hon. Friend the Member for Andover (Mr. D. Fortescue), by the hon. and gallant Member for Ayr (Sir James Fergusson), and the hon. Member for Dumbarton (Mr. Smollett). The language used towards his hon. Friend was perfectly unjustifiable. If facts were brought to the knowlege of any hon. Member which, to the best of his judgment, gave primâ facie ground for believing that there had been a default in the administration of justice, either civil or military, at home or in any of our colonial possessions, he had a right, and it was his duty to bring those facts before the House that they might be inquired into. He had heard the speech of the hon. Member for Andover last year, and he was bound to say that though his statements had been proved to be unfounded in their material parts, yet in the first instance his hon. Friend had grounds for making those statements to the House. He was not the first man to originate those statements. He had himself, and he had no doubt other hon. Members had received a printed statement and correspondence, in which the same facts were given as distinctly and as broadly as they had been stated by his hon. Friend. In that pamphlet it was stated that the friends of Sergeant Major Lilley, when Colonel Crawley gave them the opportunity, meant to have him arrested and tried for manslaughter. It was, therefore, for the interest of Colonel Crawley that the facts should be sifted as they had been. The right hon. Gentleman the Member for Huntingdon (General Peel) had complained of the course taken by the Government, but they really at that time had as little means of judging of the truth or falsehood of these allegations as any other Member of the House. They had certainly the Memorandum of the Commander-in-Chief 87 before them, in which his Royal Highness passed his judgment on the facts—There are points of Lieutenant Colonel Crawley's conduct of which his Royal Highness cannot speak in too strong terms; he alludes to the confinement under arrest of certain non-commissioned officers during the trial, on a charge of conspiracy, which he never attempted to prove against them, and for which there does not appear to be the shadow of a foundation. He has also reason to believe that the Commander-in-Chief in India, if he had been better acquainted with the circumstances, would have taken a different view, and would not have attributed the death of that non-commissioned officer to excess.Now, whether it might not have been better to wait for the explanations of the Commander-in-Chief in India before sending such a Memorandum to be read before the soldiers of the Inniskilling Dragoons he would pronounce no opinion; but after such an opinion so publicly expressed, when such rumours were rife, and public opinion throughout the country was so much excited, it was absolutely necessary that the Government should institute a further inquiry. It was all very well to say that the inquiry had resulted in disproving all the allegations; but nevertheless the inquiry had tended to the interest of Colonel Crawley, and the advantage of the public. Last year he was the only Member who, while he was of opinion that there should be an inquiry, expressed his conviction that in all probability a British officer like Colonel Crawley would be able to disprove the charges made against him if he had an opportunity. That opportunity he had had, and the public would rejoice, as he rejoiced, that such a scandalous stain as would have rested on the character of a British officer bad those charges been proved had been entirely removed, and that Colonel Crawley had been shown never to have done anything approaching to that which was attributed to him. He was convinced, from what had fallen from the hon. Member for Andover, that he was satisfied that had been the result of the inquiry; if he was not satisfied, he was not the man he took him to be.
said, his object in rising upon that occasion was to make an appeal to the Under Secretary for War and the Government generally, in favour of an officer who had been worse treated than any officer of the British service similarly situated. He knew nothing of Colonel Crawley. He had never seen him to his knowledge, nor had had any communication 88 with him. The other night, when he put a question to the noble Lord the Under Secretary for War relative to Colonel Crawley's expenses, he was told that the usual expenses would be paid by the Government, and that Colonel Crawley would not he put to more expense than if his regiment were quartered in this country. But it should be recollected that Colonel Crawley had to break up his establishment in India, and to dispose of his effects, and that the only free quarters he received were during the three weeks of the court-martial at Aldershot. He (Colonel Gilpin) knew that it was not usual to recognize the legal expenses of prisoners so situated; but he would ask, whether this was a usual court-martial? Was it usual to bring a man 10,000 miles to trial? Was it usual to hunt him down before trial as so many had done in this country? Was it usual to hear speeches made in this House conveying imputations of the gravest character against a man before his trial? As an example of some of the speeches that had been made upon the subject in that House, he would refer to what had fallen from the hon. Member for Stafford (Mr. Alderman Sidney) to show the groundlessness of the charges which had been made against Colonel Crawley. That hon. Gentleman said the wife of Sergeant Major Lilley was placed in the same cell with her husband, and died in her confinement, which took place under circumstances of the greatest indecency. He (Colonel Gilpin) regretted that that hon. Gentleman was not then in the House, but he had given him notice of his intention to quote one extract from the speech which he had made on this subject. Now, the statement of the hon. Gentleman was utterly at variance with the facts, and was contrary to the rules of the service. If he were in his place he would have asked him upon what grounds he made such a statement. The facts were, that Mrs. Lilley was never placed under any sort of restraint. She went in and out of her husband's quarters when she pleased. She attended his funeral, and died of consumption in about six weeks afterwards. But that was not all. In another place, a noble Earl, who was celebrated for his philanthropy and benevolence, added fuel to the flame, and did not think it inconsistent with his Christian benevolence to say that such was the feeling of the people of England upon the subject, that it was absolutely necessary a court-martial should take place in this 89 country. After all that excitement it would be easily seen that an acquittal was a matter of existence to Colonel Crawley. Now, what chance had he alone and unassisted against the legal advisers of the Crown? It has been said that Colonel Pipon was Judge Advocate, and Sir Alfred Horsford prosecutor. Nominally, that was so; but he had it on the highest authority that in everything that distinguished officer (Sir Alfred Horsford) did, he was guided entirely by counsel. Who was the counsel? The Deputy Judge Advocate, whose duty it was to prepare the charges, to consider the proceedings after the sentence; and this last act led him to watch over the fair interests of the prisoner as well as of the Crown. Sir, I hope this is the last time we shall see that Gentleman acting in the double capacity of judge and prosecutor. He appealed to the noble Lord at the head of the Government to act liberally on this occasion, and to pay the whole of the expenses of Colonel Crawley, including the legal expenses, being convinced that such liberality would meet with the approval of the public. Colonel Crawley not only stood acquitted of every particle of charge against him, but he was also, he believed, acquitted in the mind of every honourable man in the country. He concurred in opinion with the right hon. Gentleman the Member for Huntingdon (General Peel), and regretted the moment that the court-martial was over that Her Majesty's Government did not pay every sixpence of the expenses of Colonel Crawley, and thus save the scandal of British officers putting their names to a subscription list, in the performance, as they believe, of a duty entirely neglected by those in authority over them.
§ MR. NEATE
said, that the Deputy Judge Advocate did not deserve any of the censure that had been cast upon him for his conduct in this matter. His right hon. and learned Friend the Judge Advocate General had already explained that when the Deputy Judge Advocate had the duty cast on him of assisting the prosecution, he threw aside all the duties and responsibilities of his official position, and acted merely as any other legal gentleman who appeared would have done. He had known the Deputy Judge Advocate for thirty years, and there was no man more scrupulously exact in his observance of the rights of others, or more prompt to resent or repel any wrong done to himself or those 90 whom he felt it his duty to defend. If the energy of that learned Gentleman's character had carried him beyond the limits which a cooler mind would have set to itself, that was an error of a generous description. The prosecution seemed to have one arm tied behind its back, because it was thought desirable not to call in question the legality of the conduct of Sir William Mansfield and Sir Hugh Rose, and the advisers of Colonel Crawley had taken advantage of that circumstance. He thought the military Gentlemen on the other side had better let the matter rest. He had nothing to say against Colonel Crawley's acquittal, and even before the court-martial was over, he had come to the conclusion that the evidence would not justify a conviction. It did not, however, follow, on that account, that Colonel Crawley had acted in a manner in which it was desirable a commanding officer should act; and if hon. Gentlemen, on the other side, thought their opinions on this matter were the opinions of the British public, they deluded themselves very much.
§ CAPTAIN ARCHDALL
said, that the hon. Gentleman who brought forward this Motion had appealed to him to say something as to the state of discipline of the Inniskilling Dragoons. He was happy in bearing testimony to the efficiency and high character of the regiment. He could appeal to the flattering terms in which His Royal Highness the Commander-in-Chief had spoken of the Inniskilling Dragoons; and he could also appeal to the testimony of Lord Cardigan, the most particular, and, perhaps, the most efficient Inspector General of Cavalry, who ever rode down the ranks of a regiment, and who, at the last inspection before its departure for India, reported of its efficiency in higher terms than he had ever before reported of any regiment. As he was on his legs, he would say, that no one deprecated more than he did the irregular and frequent discussions in that House on matters connected with the discipline of the British army. At the same time, to borrow the expression of the noble Lord at the head of the Government, he confessed he was unable to "go the whole hog" with his hon. and gallant Friends around him in condemning the hon. Member for Andover (Mr. D. Fortescue). What was the state of things when the hon. Gentleman brought the question under the consideration of the House? A blight had fallen on the Inniskilling Dragoons, the scandal of a court- 91 martial on an officer had visited it, and the death of a non-commissioned officer under illegal arrest had excited a strong feeling throughout the country. The subject had already been referred to on more than one occasion. The public believed the most improbable and impossible statements in regard to the treatment which a non-commissioned officer was said to have received from his commanding officer; for no man who knew anything of the army could believe that any officer would have dared to act towards his subordinate as it was alleged Colonel Crawley had acted. The country being in a state of indignation at the supposed cruelty practised towards Sergeant Major Lilley, the hon. Member for Andover, not being well acquainted with the rules of the army, gave to the accusation an easy credence, and brought forward those allegations under the belief that they could have been supported. An opportunity was thus afforded to the Under Secretary at War to explain or contradict those statements; but the noble Lord being unable to give such contradiction at the time, made a statement remarkable for the absence of official circumlocution and obscurity; he held nothing back; he admitted that irregularities had taken place, that much blame was due for such irregularities, but that that blame, must be distributed among a number of individuals; and he promised that there should be further inquiry. It was to be regretted that the authorities at the Horse Guards did not wait the result of that inquiry before bringing Colonel Crawley to court-martial. Misled, however, by the statements of Mr. Smales, who had been dismissed from the service, and of Lieutenant Fitzsimon, (who, he was glad to say, had received his military education in the Austrian and not in the British army), the military authorities ordered the court-martial upon Colonel Crawley. Colonel Crawley was acquitted of the charge preferred against him—namely, of having used unnecessary severity towards Sergeant Major Lilley; but at the same time there was no doubt that Colonel Crawley had carried out the imprisonment of Sergeant Major Lilley with the utmost rigour, with a severity most unusual in India, and such as was only had recourse to when a prisoner threatened to commit some act of violence, or attempted to break his arrest. And, as regarded Mrs. Lilley, without a sufficient regard to decency, much had been said about the eighth clause in the Mutiny Act. It appeared, however, to him to be per- 92 fectly clear that a man could not legally be kept in confinement beyond eight days, or until he should be brought before a court-martial; that was to say, until a decision was come to whether he could be tried by court martial upon the charges brought against him or not. It was found that there was not sufficient evidence to bring the sergeant-majors to trial, and from that moment their arrest was illegal. It was true Colonel Crawley had been honourably acquitted by the court-martial of the charges preferred against him. He congratulated him on his acquittal; but notwithstanding that acquittal, and the statement of the right hon. and gallant Member for Huntingdon, that "not a rag of the Memorandum of last year remained," he believed that the censure passed by the Commander-in-Chief upon Colonel Crawley, of being wanting in that tact, temper, and judgment so essential in a commanding officer, remained undisturbed. He (Captain Archdall) entirely agreed with the noble Lord opposite, that it was time this controversy should end; he regretted the end was not more satisfactory. The law had been broken; had it been vindicated? Colonel Crawley, one of the chief actors in the drama, had been tried and acquitted; acknowledged illegalities and irregularities had taken place at Mhow, which by being allowed to remain unpunished had been condoned. The court-martial at Aldershot had cost the country £18,000. Altogether the result seemed to be, that in this case the Government had sustained the character given to it by a noble Earl in another place, of having "meddled and muddled."
said, he had heard with astonishment the speech just delivered; but he should not have risen but for the taunts thrown out on the other side of the House against those who were designated the military defenders of the abuses of the Horse Guards. He stood there as the representative of an important constituency, and he felt that he was not acting inconsistently with his duty in taking the part of a maligned and ill-used officer. The right hon. Member for Kilmarnock (Mr. Bouverie) was the only man who had as yet stood up in a fair and honourable manner, avoiding all the technicalities of the law, and spoken in favour of the much injured and persecuted Colonel Crawley. The hon. Member for Andover (Mr. Dudley Fortescue), not satisfied with being one of the originators of this great 93 scandal, and accepting the verdict of the court-martial, had made a speech full of insinuations against Colonel Grawley, suggesting that he was morally guilty of the charges made against him, though in the beginning of his speech he confessed that he had been misled, and held out the hope that he was going to atone for the mistake he had made. The hon. Gentleman who followed the hon. Member for Andover said, that those who stuck up for discipline in that House were the first aggressors on the authority of the Commander-in-Chief, who instituted the court-martial; and he challenged them to stand up, if they dared, and say that the court-martial ought not to have taken place. He (Colonel Dickson) said boldly that the charge against Colonel Crawley was unfounded, and that the trial ought not to have been ordered. He did not question the conduct of the Commander-in-Chief, but he thought the trial had never been called for by the circumstances of the case or by the opinion of the country. It had been said that the regiment was in a state of mutiny. But by whom had this been said? Not by Colonel Crawley; never by the military authorities. He had served in the regiment upwards of twenty years. The hon. and gallant Member (Captain Archdall) stood up for the regiment to which he had belonged; but circumstances had changed since the hon. and gallant Member was an officer of the Inniskillings; and no doubt, when Colonel Crawley joined his regiment he found his officers deteriorated in discipline. At all events, there was high authority for the allegation. Colonel Crawley, on joining his regiment, was met by those who ought to have supported him, with the most determined hostility and was worried. He was met at the outset by the most determined opposition, the reason for which was known to many in the House, arising from circumstances of former years. One of those was a man who, a hope had been expressed that night, might be re-instated, but who he (Colonel Dickson), for the credit of the British army, hoped would never be restored to his former position. Monstrous rumours, one-twentieth part of which it was impossible could be true of any colonel in the British army, had been sent home, implicating not only Colonel Crawley but Sir Hugh Rose and Sir William Mansfield. Who behaved better in the Indian Mutiny than Sir Hugh Rose I If not fit for the command of the British army in India, 94 why did not the Government at once remove him? But if fit to command the British army in India, surely he was it to decide on a question concerning an individual sergeant of dragoons. The next person against whom the rumour was directed was Sir William Mansfield. He thought the House owed all three an ample apology. The Under Secretary for War said he thought that what was said to Sir William Mansfield, was a greater punishment than if he had been tried by a court-martial. But was his conduct illegal or not? According to the opinion of the Judge Advocate General, it was not. We knew what we owed these officers. We knew the difficulties of their position at a distance from home, How could they perform their duties if on every turn their conduct was on rumour sent home, to be taken up in that House, censured, and branded? He thought the interference of the House had been detrimental to the discipline of the army. He believed that if the army were polled to-morrow, not one of them would express the slightest condemnation of the coarse which was pursued by Colonel Crawley in India. He hoped an end would be put to this kind of interference—if not, a heavy blow would be struck at the discipline of our army. He trusted this was the last time such rumours would be acted upon, to the annoyance of an efficient officer, who owed his position to no aristocratic influence, but rose to his present rank by the aid of his own merit.
§ SIR PATRICK O'BRIEN
wished to say nothing disrespectful of Colonel Crawley, who was a King's County man, and one of five sons who had served Her Majesty with credit and distinction, but only to express his opinion on the large public question at issue. Certain officers of the Inniskilling Dragoons had been compelled to give evidence before the court-martial, and in consequence of that evidence were liable, without having an opportunity of defending themselves, to be put on half-pay or sent to the West Indies. That was, in his opinion, very hard and unjust usage. His own opinion was that His Royal Highness the Commander-in-Chief acted with great pluck in the matter; and whilst Generals Rose, Mansfield, and Fan-ell were the persons who ought really to have been held accountable for Sergeant Lilley's unjust imprisonment, Colonel Crawley had been made their scapegoat. He regretted that the particulars connected with the affair had been much exaggerated, the 95 extravagant language made use of at first having led to a reaction in the popular feeling in the opposite extreme.
§ SIR WILLIAM FRASER
would repeat the observation of the hon. Member for Stoke-upon-Trent (Mr. H. R. Grenfell), that if the Inniskilling Dragoons were in a mutinous state when Colonel Crawley joined them, the charge against Colonel Crawley fell to the ground. Sir William Fraser thought that nothing produced so great an effect on the public mind during the long and painful investigation at Aldershot as the alleged state of the Inniskilling Dragoons before Colonel Crawley joined. He had formerly two near relatives in this regiment, and he would not say a single word against the gallantry of the regiment in former days, or its discipline in later days; but the House should have before it some evidence of the condition of the regiment at the time Colonel Crawley joined. It would be found that when Colonel Crawley joined, the regiment was in a very unsatisfactory condition. That officer put a question which was very pertinent when he asked the Horse Guards to produce the letter of Colonel Shute to His Royal Highness the Duke of Cambridge; every one expected that letter would have been produced, the Court having decided that it was relevant, and were astonished when it was not produced. He would be the last to demur to the course His Royal Highness the Duke of Cambridge took in declining to produce that letter, as he had no doubt whatever that His Royal Highness believed it was to the best interest of the British army that it should not be produced; but there could be no doubt whatever that the absence of that letter had a material effect on the interests of Colonel Crawley; and the public felt that although the prosecution was not identified with the Ministers of the Queen, the withholding of this letter was not fair. He firmly believed that it would have shown that the regiment was not in so perfect a state as it was believed to be when Colonel Crawley joined it, and his ground for this was the letter of His Royal Highness the Duke of Cambridge to Sir Hugh Rose, dated 14th January, 1864, the statements in which were to the effect that the regiment when Colonel Crawley joined had materially changed from what it had formerly been, and that the discipline of the regiment, be far as the officers were concerned, was impaired. The Duke of Cambridge added, that this bad state of feeling among a 96 portion of the officers appeared to be beginning to affect the non-commissioned officers; and this was how Colonel Crawley was induced to suspect a conspiracy amongst the three Sergeants Major against his authority, and that the conduct of the Sergeants Major strengthened the assumption, but there was no legal evidence by which they could be brought to trial. That was the effect of the letter. It had been stated over and over again that Colonel Crawley locked these men up in order to prevent their giving evidence against him on the trial. That was not true; these men had committed a specific military offence, in using obscene and mutinous language against their colonel; and he asked any hon. Member of the House who was a magistrate, if a man were brought before him for a burglary, would he refuse to commit him because he had received a subpoena to attend as a witness at a trial on a totally different subject at the next assizes? and this was what it was in effect urged Colonel Crawley should have done. Something had been said as to the hon. Gentleman who had made the Motion last year, and he trusted that hon. Gentleman would respond to the appeal Colonel Crawley made to him in his eloquent defence. The statements of the hon. Member for Andover had been distinctly contradicted by the witnesses, and Colonel Crawley appealed to the hon. Gentleman, for the sake of his own honour and for the dignity of Parliament, to expose the parties of whom he had been made the dupe. It was the practice of political partisans in that House to back up those who thought with them, and to go great lengths to support them; but he appealed to the House in the name of all that was gentlemanlike and manly, and asked was it fair that the hon. Member for Andover should sit smiling during the whole debate without making an explanation as to the charges which he had made against Colonel Crawley.
§ MR. DUDLEY FORTESCUE
wished, before the debate closed, to give some answer to the remarks which had been addressed to him, especially to the appeal of the hon. Member for Ayrshire (Sir James Fergusson) — an appeal which, if not at variance with strict Parliamentary usage, was certainly not in accordance with that courteous and gentlemanlike spirit which was one of the most honourable characteristics of the House of Commons, and which he thought the hon. Member might study with great advantage in the improve- 97 ment of his manners. When he decided on bringing this matter before the House a second time, he had at first intended going through the evidence taken before the court-martial, and showing how far it confirmed and how far it refuted his original statement; and, as far as he was concerned, he would have been very glad to have taken that course. On consideration, however, he thought it better not to weary the House with unnecessary details, and he had contented himself with a general admission that, on some points, he had been led into error, while stating the reasons which prevented him from altogether retracting, though he was quite prepared to modify, his original statement. That course, he believed, had been considered satisfactory by the House In general, but as some hon. Members opposite had insisted on dwelling on these details, he trusted he should now be excused if, in answer, he briefly referred to one or two points of the evidence in justification of his statement. First, with regard to the allegation that the quarters in which Sergeant Major Lilley died consisted only of one room, it would be seen, on referring to the evidence, that, for all practical purposes, they were so considered, Major Swinley, in answer to a question (Page 35, Q. 468), whether he had not sought to give the impression that Lilley and his wife were shut up in one room, said distinctly—If I ever did speak about it to other people I should have done so, not during the whole course of the arrest, but during the latter part of the arrest, as from the recollection of my own sergeant major's quarters I believe them to have been shut up in one room.Again, Major Champion, in the following passage (Page 19, Q. 130), described as a single room a set of quarters exactly corresponding to those in which Lilley died, with the addition of a passage between them. Major Champion questioned by the Prosecutor—With reference to the evidence you gave yesterday in cross-examination (extract read), were any additional quarters given to Quarter Master Sergeant Dibble besides those occupied by Sergeant Major Lilley? Answer: I am glad to have the opportunity of stating that I forgot to mention yesterday that Quarter Master Sergeant Dibble inhabited the quarters Lilley died; in, and also a room on the north side of the model of similar dimensions. The passage of I communication (pointing to the model) is seen on the north side of Lilley's quarters in lighter coloured wood.He had entirely abstained from saying anything about the treatment of Mrs. Lil- 98 ley; but if hon. Gentlemen turned to the evidence of Dr. Barnett, they could not fail to come to the conclusion that in the details of the arrest, whoever might have been responsible for it, there was a needless disregard of decency and humanity. After some preliminary questions, Dr. Barnett was asked—Could the sentry see into Mrs. Lilley's bedroom?—From No. 2 room he could see into No. 3, Mrs. Lilley's bedroom, I should say not distinctly, without removing the chick that was on the door.Could you see the sentry through the chick? —Yes, I have frequently seen the sentry over the lining of the chick; the chick was lined halfway up with a sort of red cotton. I could see the sentry's head over that.Could he hear anything that was going on in the bedroom? — The conversation carried on in the bedroom could be heard in the other room distinctly, unless it was in an undertone; in my visits to Mrs. Lilley I always spoke to her in an undertone in asking her professional questions, lest it should be overheard by the sentry.Was Mrs. Lilley ever confined to her bed during the confinement in either bungalow?— Yes, she was; she was a great part of each day in bed; sometimes she was much better, and then she sat up part of the day, but many days she was confined the whole day.Dr. Barnett stated in answer to other questions—In your opinion, as a medical man, was the sentry at any time during the arrest placed in a position where he could not interfere with or annoy Mrs. Lilley?—I never observed any change in the position of the sentries in either bungalow, with the exception of the occasion I have already stated, when I met the sentry at the door of No. 4 room in the first bungalow.Question repeated—I consider that the position of the sentry during the whole period of the sergeant major's arrest must have been an annoyance to Mrs. Lilley.Do you remember the inconvenience to Mrs. Lilley being rendered less at any time during the arrest, from the alteration of the position of the sentry?—No, I do not.Did you after the 7th of May observe any diminution of the inconvenience to Mrs. Lilley?—I observed no diminution of the inconvenience after the 7th of May.With the exception of one or two points, which he had unintentionally misunderstood, he thought he could appeal to the evidence that had been given to prove the substantial accuracy of the statements he had made. With regard to his Motion for confidential Reports, it had been in a manner forced upon him by the right hon. and gallant Gentleman (General Peel), who had made it a condition to his not opposing the proceedings of the court-martial being laid on the table, that he should make 99 a Motion. So he had moved for the papers; and considering how Colonel Shute'a character had been reflected upon in what had been said as to the state of the regiment, he thought it only fair to him to do so. If he had committed an error in moving for Confidential Reports he was glad to find he had done so in such good company as that of the noble Lords the Members for Northumberland and the East Riding (Lords Lovaine and Hotham). At the same time, after the discussion that had taken place, he would not press his Resolution.
§ CAPTAIN ARCHDALL
said, he could only speak as to the discipline of the Inniskillings when they left this country. He did not know what had happened afterwards.
§ Question, "That the words proposed to be left out stand part of the Question," put, and negatived.
§ Words added.
§ Main Question, as amended, put, and agreed to.
That the production of any further Papers relating to the court-martial on Colonel Crawley is inexpedient.—(General Peel.)