HC Deb 27 May 1864 vol 175 cc721-36

, who had presented Petitions from Sir George C. Whitlock, K.C.B., and Major Generals; E. Apthorp, E. Holt. W. Reece, and E, Miller, for Distribution of the Banda and Kirwee Booty, as recommended in the Report of the Royal Commission on Army Prize, proceeded to move an humble Addrees to Her Majesty thereon. The petitioners whose petitions he had presented to the House stated that the Royal Commission on Army Prize had recommended a distribution on the principle of actual capture; and they asked, should there be any; dispute as to the troops entitled upon that principle to have the matter referred to some competent judicial tribunal? The petition concluded by praying that before the matter was concluded the House would interfere by praying Her Majesty to take steps to have the matter submitted to a fair and legal arbitration. That was the object at which his Motion pointed. He felt that he had a difficult task to perform, for the papers were voluminous and the case was complicated. He was anxious, at the beginning, to point out to the House the importance of the subject. It was not a question between one officer and another, or one force arid another, but it lay at the root of the whole subject of army prize. Last Session, as the House would recollect, on the Motion of the hon. and gallant Member for Oxford shire (Colonel North), an address to the Crown was unanimously agreed to, praying Her Majesty to appoint a Commission to inquire into the whole subject of army prize. That Commission was appointed, and its Report had been laid before Parliament. The Commissioners entirely confirmed the statements of his hon. and gallant Friend, in making the Motion, as to the great delay and consequent inconvenience in the distribution of prize money, and they said that that delay had often been such as to deprive the bounty of the Crown of its grace, and to create an impression that good faith bad not been kept. The Commissioners I had divided the causes of delay into three — the delay in the realization of the booty, the delay in fixing the principles on which it was to be distributed, and lastly, the delay in the actual distribution, and they had proposed a scheme by which these delays might be avoided, the cardinal point of which was that there should be some certainty as to the principles on which prize should be distributed. It was to the introduction of that principle of certainty that his present Motion pointed. It was a Motion in effect asking the Crown to restrict its prerogative. Of course he knew perfectly well, and he wished the Government to understand that it was admitted, that the prerogative of the Crown in the matter was absolute. There was no claim of right set up on the part of any person in the matter of army prize. Her Majesty might do what she pleased with any booty. She might build a palace with it, or she might give it to the Chancellor of the Exchequer to clear off the debt, but in practice Her Majesty and her predecessors had for a very long time exercised their prerogative by giving up booty to the troops who had captured it. Naval prize had formerly stood in the same position as army prize now stood in; but within the last century a system of distribution according to rule had been established, and a code built up by the decisions of the Court of Admiralty, by which naval prize was now distributed to the general satisfaction of the service. In the case of army prize the prerogative of the Crown bad never been restricted in such a manner, but the Crown had always waited until after the booty was taken, and then had considered on what principles it should be distributed; and though the principles and precedents of naval prize were applicable to army prize, it was only to a certain extent, and the Treasury, which was the deciding body, had been obliged to refer to law officers, to distinguished military authorities and others, thus causing great delay. The Commission had drawn up a scheme by which the system of distributing army prize might be placed on a sound footing, and it was for the House now to consider whether, having asked the House for a Commission, it would go on to ask that the principles laid down by that Commission should be carried into effect and applied to this particular case, which he thought would be found to be a leading case. With regard to this case, he had taken it up without having any interest on either side, but simply because it involved a general principle which it was very desirable for the sake of the army at large to settle as soon as possible. At the time he took it up he was not aware that he had a single friend who had any interest in it. It was only lately that he had learnt he had two or three friends in India who were interested in the matter, but they had made no communications to him on the subject, and it was not at their instigation that he was proceeding with it. The reason why the parties had come to him was, he presumed, because he had formerly for a short time been connected with the Department which was supreme in these questions. Having said thus much, he should briefly state the facts on which his Motion was based. When Lord Clyde went out to India in the autumn of 1857 he found the mutiny had not drawn to a head at any one point; but that insurrection was springing up in various parts of Central India under different chiefs. There was not only Lucknow to be relieved, and Oude and Rohilcund to be pacified, but there was the vast territory between the Nerbudda on the south and the Jumna on the north with a number of independent leaders who were making war against British rule, and whom it was necessary to reduce to obedience. In order to accomplish these objects and to restore order everywhere, Lord Clyde saw it was expedient that an organized plan should be adopted, and he devised, in conjunction with the Government of India, a system of detached columns, which were to advance through Central India, clear it from the enemy in all directions, and ultimately to meet his own army in the North. Before, however, that scheme had been decided upon between Lord Clyde and the Supreme Government, the Presidency of Madras had organized a similar movement, and had collected a force for service in Central India which was placed under the command of Sir George Whitlock. That being so, Lord Clyde took advantage of the column under General Whitlock's command, while he arranged that there should also be a column from Bombay under Sir Hugh Rose, and in conjunction with those two a third under General Roberts, each of which was to have its own line of action and to sweep the country of what might be called Central India to the Jumna, where they were all to put themselves into communication with the army of Lord Clyde. In pursuance of that arrangement Sir George Whitlock advanced from Madras in independent command of his own force. He encountered on his march the troops of the Nawab of Banda, and defeated them in an engagement which Lord Clyde had characterized as taking rank among the best actions of the war. The result was that the Nawab's army was dispersed, and that the Rajah of Kirwee, his relative and neighbour, became so terrified at the result that he entered into communications with the British authorities with the view of surrendering his town. Finding, however, that Sir George Whitlock, owing to the condition of his force, was not pressing on him so rapidly as he expected, he took courage, abandoned his intention of submission, and prepared to defend his territory. In the meantime Sir Hugh Rose had been carrying on that splendid campaign which filled everybody with admiration in Central India. In the course of his operations, he had been on more than one occasion in correspondence with Sir George Whitlock. He was engaged in the siege of Jhansi, and other operations, and at the time of the defeat of the Nawab of Banda it appeared probable that the two forces would be brought into communication for the purpose of attacking Calpi. Sir George Whitlock had offered to join Sir Hugh Rose for that purpose, but the town was taken before the cooperation could take place. Sir George Whitlock then pursued the line laid out for him. He marched to Kirwee, the Rajah of which gave way, and took possession of the town, in which he left a portion of his force, the troops of the Rajah having retired to the mountains. When, however, it was found that Sir George Whitlock was absent from the town, and that there was in it only a small number of British, the Rajah made an attempt to retake the place, but Sir George Whitlock came under the pressure of the most severe weather rapidly to its relief, and, saving it from capitulation, drove the enemy back into the mountains. Under those circumstances that gallant officer, not unnaturally, thought that he had a claim to the prize money taken at Banda and Kirwee, while the Government and the Treasury had decided, as the matter at present stood, that he and the force under his command were only in part entitled to the booty, and that Sir Hush Rose's force was entitled to share. They had, however, suspended their decision to give the House an opportunity of expressing an opinion on it. That being so, it be came necessary to consider what was the ground upon which the decision of the Government was based. So far as he could understand the papers, the claims of Sir Hugh Rose to a share of it were supported upon two grounds, the one being that the two forces were so combined that they must be regarded for the purpose of the distribution of prize, as the same; the other that the operations of Sir Hugh Rose were essential to, and were the cause of, the capture of Kirwee by Sir George Whitlock. The accuracy of both these allegations was, however, disputed by the representatives of Sir George Whitlock and his troops, and both appeared to involve questions of such delicacy and intricacy as to require the most careful study, and the most minute sifting of evidence. It was not a case which could satisfactorily be disposed of with closed doors, at the Treasury or any other Government Office, but one which required open and fair investigation. First, as to the claim of Sir Hugh Rose, founded on the supposed combination of the forces. How could they be considered a combined force, when they were under two distinct commanders? When two columns having different commanders were united, the senior officer took the command of the junior; but in that case there was not a single instance of an order having been given by Sir Hugh Rose, the senior officer, to Sir George Whitlock, or a report in the ordinary form of a report from an inferior to n superior having been addressed by the latter to the former until after the combination of the forces at a later period. But the case did not rest on the absence of such reports and orders; the tone of the letters which passed between them was such as to afford positive evidence that there was no such combination 'and co-operation as Sir Hugh Rose now relied upon. In one case Sir Hugh Rose, addressing General Whitlock, said, "I shall feel extremely obliged to you if you could as much as possible clear the Valley of the Nerbudda;" and in another, "I Hope you will have the great goodness to bring up 5,500 bullock-loads of corn for I my force. Was that the language which; a commanding officer would use? The courtesy of Sir Hugh Rose was well known, but military discipline must have changed a good deal of late years if that was the I way in which a superior officer wrote to another who was under his command. I More than that, when Sir George Whitlock received a communication from Sir Hugh Rose he did not always comply with the request which it conveyed to him; and I whenever Sir. Hugh Rose desired to obtain the co-operation of Sir George Whitlock, he wrote, not to him, but to Lord Clyde, whose chief of the staff then communicated with Sir George Whitlock. And how did the chief of the staff make these communications? Did he direct General Whit lock to follow Sir Hugh Rose's orders? Not at all. Take the case of Calpee for instance. Sir Hugh Rose desired General Whitlock's aid. He wrote to Sir William; Mansfield, as chief of the staff, on the subject, and Sir William Mansfield there upon requested Sir George to co-operate with Sir Hugh Rose, if the state of his own district enabled him to do so, but left it entirely to himself to decide whether it would be prudent for him, and consistent with the attainment of the special objects of his force, to take such a step. Sir George Whitlock exercised the discretion which was left to him, and Calpee fell without his co-; operation. What the effect would have been if he had gone there was a different question. He was now asking the House to I consider what he actually did, and the fact; was that he never went out of his district. I Now, how could it be said that this was a case in which, with closed doors, without the power of cross-examination of witnesses, and without any argument, it was to be decided that the two forces were in combination? Co-operation of a certain kind there undoubtedly was between the two forces, but it was clear from the evidence contamed in the blue-book that the Treasury did not consider that there was an absolute and clear combination. It was a new case; its decision would form a precedent, and, therefore, he maintained that his position was inexpugnable when he demanded, in the name of justice, that it should be submitted for the decision of a legal and judicial tribunal. Mr. Arbuthnot, one of the principal officers of the Treasury, a gentleman of high authority and well known to many hon. Members, stated, in his evidence before the Commission, that he was not aware of any exact precedent for two columns being concerned in combined operations under separate commands, and in the Minute of January, 1862, it was admitted that this case was to some extent peculiar. The answer given to him by the Government would no doubt be that it was an exceptional case; but he held it was more necessary to be cautious in dealing with an exceptional case than with an ordinary one. Then, as regarded the second ground taken by the Government. When it was asserted that the capture of Kirwee depended upon the success of Sir Hugh Rose, they were getting upon very delicate ground. Of course, in a certain sense, there was no doubt that the operations in all parts of India, whether at Lucknow, in Oude, in Rohilcund, or in other places, had a bearing and an influence upon each other; but when a distinct statement was made that the fall of Kirwee resulted from the success of Sir Hugh Rose's force, it was not only the pecuniary interest, but, to a certain extent, the honour also of Sir George Whitlock's force that was attacked. He did not wish to institute a comparison between the services of the two forces, but it should be remembered that the Madras force were the representatives of a faithful army; they had come a great distance out of their own district to the assistance of their country, and it was cruel to tell them that successes which they achieved without a shot being fired or a sword cut given by any force but their own were won, not by themselves, but by some one else. If the Government professed to act upon the principle that the operations of every force bore upon those of every other, and that each force had a right to share prize to the capture of which it might in this way have contributed, where was the line to be drawn? That was a practical question which had arisen in the course of this Correspondence. A brigade of Sir Henry Roberts's force, under the command of General Smith, claimed to share in the prize taken by Sir Hugh Rose's force, on the ground that it was in communication with it; but General Smith was at once informed that he had no case. General Smith, however, sent in his claim again, which was then admitted by the Secretary of State for India, and also, he believed, by Lord Clyde. It was disputed, however, substantially upon the same grounds by Sir William Mansfield and Sir Hugh Rose, the latter of whom appeared to take a very different view of what occurred on his right hand and what took place on his left. Sir William Mansfield said it was utterly impossible General Smith could have any claim, as he was not under Sir Hugh Rose's orders. General Smith was not, it is true, under Sir Hugh Rose, but neither was Sir George Whitlock. Generanl Smith was represented as being 200 miles away, and unable to render any assistance; but at the time Kirwee fell, not only was Sir Hugh Rose many miles away, and unable to render General Whitlock any assistance, but he was actually hastening in exactly the opposite direction after Tantia Topee, who had seized Gwalior and seriously alarmed the British force in that part of the country. The fact was, that Sir Hugh Rose, so far from helping Sir George Whitlock, needed all the help he could get for himself. It appeared to him (Sir Stafford Northcote) to be idle to say that that force which had marched in an entirely opposite direction, was, nevertheless, entitled to claim the honours and advantages arising from the actual capture of Kirwee, whilst at the same time it was also maintained that General Smith's force should be shut out from all participation in the prize money, on the ground of its having had no share in the operations in question. That seemed to him to be a most monstrous and inconvenient doctrine. Once the doctrine of constructive capture was admitted, they involved themselves in all manner of gross inconsistencies. On this point it was most important to attend to the recommendations of the Committee on Army Prize— To give simplicity to all proceedings in matters of prize, and to facilitate despatch, it is essential that the principle of actual capture should be as closely adhered to as the nature of military operations permits. Any departure from this principle involves doubt, uncertainty, dissatisfaction, and delay; and any apparent want of equity which may arise from it in particular cases will, we believe, be willingly acquiesced in by the parties concerned as in the similar case of the navy, as one of the proverbial chances of war. That was the true doctrine on which they ought to proceed. There was one consideration he knew which could not be excluded, and which must necessarily have great influence, not only with the Government, but with every Member of the House. He referred to the splendour of the services rendered by Sir Hugh Rose No one could read the modest and spirited memorial which he had put forth on behalf of his own force without feeling his blood thrill at the great services rendered by Sir Hugh Rose in that wonderful campaign. Had the noble Lord come down to the House and proposed that some substantial tribute should be given to Sir Hugh Rose, in acknowledgment of his achievements against tremendous forces and under such critical circumstances, there was not a single hon. Member who would not have sympathized with the proposition. But it was a very different thing to confer honours and rewards upon Sir Hugh Rose at the expense of somebody else, who so far as the particular capture was concerned was equally if not more deserving. However high their admiration was for the general services of Sir Hugh Rose, they must not lose sight of the principle of fair play in the matter, and of common justice to the weaker and smaller force, which had home an important part in the transactions to which he was referring. The Treasury treated it as an exceptional case on account of the largeness of the booty and the disparity of force between the different armies. In a Treasury Minute, dated 1862, they said— My Lords have already expressed their opinion that under the circumstances attending the capture of the booty in question a more extended principle of distribution should be adopted than that of actual capture, and they still retain the impression that having regard to the great value of the treasure, and the comparative numbers of the forces engaged in contiguous, if not combined, operations, it will be right to advise Her Majesty to exercise a discretion in the grant of the treasure, which remains at her free disposal. Yet they feel that any advice which may be tendered on the subject to Her Majesty should be governed by some well-defined principle, and that an arbitrary decision should be avoided, Which might create a new precedent of inconvenient application to future cases, when possibly the conditions might be reversed, and the larger booty be taken by the larger force. If the authorities persevered in the system of guiding the distribution of booty by reference to its amount and the size of the relative forces engaged, they would be entering on a most dangerous course, and sowing the seeds of heartburnings and irritation that would no doubt extend through- out the British army. The unanimity of all the lawyers who had been consulted formed a curious feature of this case. Opinions had been given by Sir Roundell Palmer and Sir Robert Phillimore before they attained their official positions, by Sir Hugh Cairns, Mr. Rolt, Mr. Montague Smith, that most eminent authority Mr. H. Prendergast, and by Dr. Travers Twiss, and they all affirmed the exclusive claim of Sir G. Whitlock to the prize money in question, if the decision were quoted only by military precedents. So much for the view of the lawyers. On the part of the officials what did he find? He must say that of all the involved cases he ever read in his life he never met with one more confusing. The protest by Mr. Willoughby and other Members of the Indian Council against the decision of the Secretary of State excellently summarized the various opinions entertained — In August, 1861, the Secretary of State for India in Council was of opinion that the Kirwee booty should be divided between the three field forces, and that Lord Clyde and his personal staff should share. We now reiterate this opinion, but admit that as far as regards Sir H. Roberts' force, the information is not so direct. Lord Clyde thinks that Sir H. Rose's force, and a brigade detached from Sir H. Roberts' force (Smith's) should share, but not Sir H. Roberts' force generally. He would also include the chief of his staff and the adjutant-general of the Bengal army. The Secretary of State for War and his Royal Highness the Duke of Cambridge concur with Lord Clyde, except that they would not include Sir William Mansfield and Lieutenant Colonel Norman. The prize agents, whose memorial has been received from the Lords of the Treasury, contend for the observance of the principle of actual capture, which would give the whole booty, to Sir G. Whitlock's force. The Lords of the Treasury, in a very able minute, propose a compromise—namely, that a moiety shall be assigned to the actual captors, and that the other moiety should be divided between the three columns. But they suggest that the Law Officers of the Crown should be consulted, and that, should they entertain any doubt, then that the case should be submitted for the judgment of the High Court of Admiralty. Since then Sir Hugh Rose had made his claim, the ground upon which he did so, after his previous inactivity, being explained in the passage where he expressed his belief that the principle of constructive capture had been allowed. A leading question had virtually been put to him, and he naturally did his best for the force under his command. General Smith's claim followed, and the list, they might depend, was not yet exhausted. He asked the House to deal with this question not as between man and man, but as involving a great principle under which all army prize would be distributed in future. The actions they were discussing took place exactly six years ago; they had not yet determined the parties who were to settle the prize roll, and when they got that length how many of the men entitled would have died or disappeared? The other day Sir G. Whitlock told him that one of the things which pained him most since his return to this country was that men came to him begging for charity whom he knew to be entitled to share this prize money. He asked the House not to be led away by recollections of the splendid services of this or that man into doing an act of injustice to the whole British army, into establishing a precedent certain to become a leading case hereafter, or into perpetuating that system of delay from which the army already had so grievously suffered. He trusted that the case he had presented was sufficient to show that it was unjust and unnecessary to keep these parties in suspense any longer. They now asked the House of Commons to interfere and intercede with the Crown. They said they had undergone two trials—one when the opinion of the Law Officers was taken, which they knew to be in their favour, and another when the Royal Commission, composed chiefly of general officers, examined the subject. Both these tribunals had, in effect, decided in their favour. They trusted that it would be unnecessary to subject them to any further expense and delay by referring it to any judicial tribunal. Still, if the House thought the matter doubtful, they wished it to be investigated by an open tribunal, in which they would have an opportunity of examining and cross-examining witnesses and making their own statements. If there was one thing Englishmen loved it was fair play. They would always accept a defeat with good humour if it came to them fairly; but if there was the slightest suspicion that they had not been allowed a full and fail-hearing, there would necessarily be discontent and dissatisfaction on the part, he would not say of the officers, but of the soldiers. Last year the noble Lord at the head of the Government thought he had reflected upon him in the observations he (Sir Stafford Northcote) made on the subject. So far from that he had never desired to say anything that reflected either upon the noble Lord or his Government. He knew that the Government had paid their best attention to the subject. It was not, however, practicable for a Government to deal satisfactorily with all the details of such a case, and it was impossible that their decision should command the same confidence as an inquiry before a court of law. There would be no difficulty in such an investigation. The captors and nil persons having claims might send in their petitions to the Crown, which had power to refer the petitions under the Act of Will. IV. to the High Court of Admiralty. The decision of such a court could not fail to give satisfaction, and he could not conclude without entreating Her Majesty's Government to consider whether those parties had not been kept long enough in painful suspense under the expectation that their claims would have been long since satisfied; and whether, in the interests of common justice and fair play, this matter should not be settled with the least further delay possible, and according to the mode which he had ventured respectfully to suggest. The hon. Baronet concluded by moving his Motion.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "an humble Address be presented to Her Majesty, praying that She will be graciously pleased to proceed in the diatribution of the Banda and Kirwee Booty, upon the principle of actual capture, as recommended in the Report of the Royal Commission on Army Prize; and, should there be any dispute as to the troops entitled upon that principle to share in the distribution, to refer the question to some competent judicial tribunal," — (Sir Stafford Northcote,) —instead thereof.

Question proposed "That the words proposed to be left out stand part of the Question."


Sir, I must, in the first place, say that I think the Government and the House are much indebted to the hon. and gallant Member for Oxfordshire (Colonel North) for the proposal he made last year that a Royal Commission should be appointed to investigate this question of army prize money. We adopted that suggestion with great readiness, and I think the Report shows that it was desirable to appoint a Commission to investigate the matter. No doubt great delays take place in the distribution of army prize money—delays that, in many instances, might by better arrangements be prevented. We were glad to carry into effect the recommendations of the Commission so far as they belong to the functions of the Government. I wish at the outset to state for the satisfaction of the hon. Gentleman that, after a full consideration of this matter, and of the difficulties that surround it, I have come to the decision that it will he desirable to give orders that the question shall be referred to the Court of Admiralty. There are three authorities that might decide in a matter of this kind, and of these the worst is that which was pressed upon us last Session—namely, this House. We all know that when questions affecting the interests of individuals come to be considered in this House there is no limit to the private canvass and the ex parte statements that may be made by parties interested, and which have a great effect upon the minds of hon. Members. Indeed, the very cheers which we sometimes hear in this House are a sure indication of what has been done out of the House to influence the minds of hon. Members. Now, a great deal of misunderstanding arises in all reasoning from the use of words which are capable of doubtful and ambiguous meaning, and the first thing when reasoning on any question is to attempt to sift the meaning of the words you employ. There are two words employed in this matter which are of doubtful and ambiguous meaning, and by which hon. Members may be misled—the words actual capture and constructive capture. In naval operations it is more easy to apply these words with certainty than in military operations. A ship is a single unit. A squadron may also be said to be a single unit. And when a capture is made by some ship or by a squadron there is no doubt that it is an actual capture, and any ship being out of sight or hull down in the offing cannot justly be deemed as having operated in the capture. But in military matters the case is essentially different. You may say that which is fairly contended by some Hint an army is a unit, and that you must deal with it as such; that captures made by any part of an army in a campaign should be thrown into a single fund, and ought to be divided among the whole of the army engaged in the campaign. Many reasons may be given in support of that view. The objection is, that when you come to divide prize money among the whole of a large force, the amount for each is frequently so small that it is hardly worth accepting, and that it is better to give the prize money to the individuals actually engaged in the operations. The former plan is adopted with regard to medals. When an army gains a great victory the medals are given not only to those who were under fire, but to those who were in the reserve, and who were not actually engaged in the operations by which the victory was gained. The whole army is considered as one mass, and the whole are rewarded according to the part which may have been assigned to them. This question resolves itself into who were the actual captors? If yon carry the matter to its logical conclusion, the actual captors are not the whole division or column by which the town is taken. The actual captors of the treasure are the company or regiment that happen to break open the door and take the booty. You are therefore driven by the necessities of the case to adopt the principle of what is called constructive capture. I will show the House how the principle of actual capture might, in some cases, apply most unjustly. Here are three columns, say, all acting under the orders of the general in chief, according to a plan sketched out by him, and all co-operating in the execution of that plan. The right hon. Gentleman has; argued that these columns were not co-operating because they were not under the orders of either of the three generals commanding them. But that is not at all necessary for the purposes of cooperation. It is not necessary to: show that General Whitlock was under the command of Sir Hugh Rose to prove that his force was cooperating with the column of Sir Hugh Rose. Each column was under the command of Lord; Clyde, each was performing a duty as signed to it by Lord Clyde, and the duty of each was to support and co-operate with the other. Suppose, and it is not far from the reality, that the central column of these three gained a great victory over the enemy, and by driving him back rendered defenceless a town within reach of the right hand column, which had taken no part in the victory gained by the central column. The enemy, however, being driven; away, the right hand column falls on the town and takes possession of all the booty. According to the doctrine of actual capture, these troops, who did nothing to wards gaining the victory, would get all the booty, while the other column, which did all the fighting, would get nothing. That would be the result of a strict adherence to the technical doctrine. It would be another illustration of the principle sic vos non vobis, that those should hare no share in the booty who had done all the fighting. I will not follow the hon. Baronet into the details of the case. He has argued it very ably as the advocate of one party. However, I retain my opinion, I have looked at the case with a good deal of attention, and my opinion certainly is that in fairness and justice all the parties who claim ought to share in the booty. But I am willing to waive that opinion and to refer the whole matter to the Court of Admiralty, under the power which allows this reference to he made, and it will he for that tribunal, after hearing the parties, as the hon. Baronet said, in open court, to pronounce a decision founded upon an accurate examination of the facts and details which will be brought out before them. That decision I am sure will be far more satisfactory to the parties and to the public than any arbitrary decision of the Treasury, and much more satisfactory than any vote of this House founded upon a canvass by those interested, and upon the imperfect knowledge which hon. Members must have of these intricate details. I have already given directions to this effect, and trust that the course proposed will be satisfactory to the hon. Baronet. As to the proposal that we should determine nakedly that the actual captors should be in all cases alone entitled, I should say that if you were to establish any rule, it should be that troops which indirectly contribute to the capture should be admitted to share the booty. But all these cases must be dependent upon an infinite variety of circumstances, admitting accordingly of an infinite variety of interpretations; and, therefore, I am of opinion that in all cases where any doubt exists it will be better to refer them to the determination of the High Court of Admiralty, to give what they think a just and proper award under the circumstances. I hope, therefore, that, satisfied with what I have said, the hon. Baronet will not press to a division his Resolution, the main point of which will, in fact, be gained by the directions already given.


said, he was willing to withdraw his Resolution upon the understanding that the question would be referred to the High Court of Admiralty. He wished to know, at the same time, whether there would he any objection to state the form of reference? He understood that the orders had already been given, and, if so, he should like to hear in what terms.


said, he had already directed that the case should be so referred, but the particular form of reference had not yet been determined. About this, however, he presumed there would be no difficulty.


considered there should be some definite law to guide the decision in these cases. At all events, there was no doubt that the Banda and Kirwee booty ought to have been distributed to the captors long since.


said, that before the reference was finally made to the Court of Admiralty, the terms of it ought to be seen, because, unless some definite question was referred to them, the Court might say that it was matter of prerogative upon which they could not decide.


intimated that he would communicate the terms of the reference to the hon. Baronet.

Amendment, by leave, withdrawn.