§ MR. BRETT
said, that he rose to move an Address to Her Majesty on the subject of the Simla Court-Martial. Three objections might be taken to the course he was about to pursue. It might be said that the case was one of individual and personal grievance which ought not to be brought before the House; that he was inviting the House to enter upon a discussion as to the administration and discipline of the army; and, lastly, that the facts he was about to bring forward constituted a personal attack upon an officer of the highest eminence — the Commander-in-Chief of the Army in India. With regard to the last point, the facts he should have to state, and the mode in which he should have to state them, would bear that appearance, but he had no vindictive feeling against Sir William Mansfield. He did not desire to bring this forward as a question between the retirement of Sir William Mansfield and the reinstatement of Captain Jervis in the service. It would give him no pleasure that the services of Sir William Mansfield should be lost to the country. He had but one object, and that was to persuade the Minister of War that Captain Jervis ought to be restored to the service. As to the second point, he had taken as much care as possible in framing his Motion to avoid any interference with the Prerogative of the Crown. He did not ask the House either to revise or control the sentence that had been pronounced, or the decision that had been come to. He only asked the House to lend its paramount influence to persuade the Sovereign to revise the decision, which was an unjust one. As to the first point, he would admit that a case of individual grievance ought only to be brought before the House under exceptional circumstances; but, in this case, he felt satisfied that a great injustice had been done. It could not be just that the faults which this young man had committed should be visited by a sentence of degradation and ruin for life. And this decision was the decision of an authority so high that there was no constituted authority in the country to revise or criticize that decision. In such cases it had always been one of the highest privileges of that House to express its opinion, to draw the attention of the Crown to the grievance, and to humbly ask of the Crown to devise redress. He would now refer to the facts. Captain 1005 Jervis was tried at Simla, in 1866, upon charges of having fraudulently misappropriated the property of Sir William Mansfield, his Commander, to whom he acted as aide-de-camp. He was further charged with insubordination arising out of the other charge against him. The court-martial acquitted him on the charges of fraud, but found him guilty on the charges of insubordination. It sentenced him to be dismissed from the service, but accompanied the dismissal with a recommendation to mercy on the ground of the extenuating circumstances which appeared in the case. The only meaning of such a finding could be that the charges of fraud being false did extenuate the insubordination. Sir William Mansfield, who was more than the prosecutor, being also a witness and warm party in the cause, taking the sentence into his hands, specifically disregarded the sentence of the court-martial that these charges of fraud were not true. In a General Order to the army, he stated that these charges were true, and disregarding also the recommendation to mercy of the court-martial, he sentenced Captain Jervis to dismissal from the service. He passed upon him the exact sentence which would have been passed upon Captain Jervis if he had been found guilty of the charges of fraud. When that decision was laid before the Commander-in-Chief and the Minister of War, they confirmed the sentence; but, by way of gratuity, ordered Captain Jervis to receive the sum of £1,800. So that the next time his right hon. Friend the Minister of State for India read out that remarkable list—which he had read on one occasion that Session—there would be added to it, the case of Captain Jervis, tried on charge of fraud, dismissed the service, and thereupon ordered to receive the gratuity of £1,800. He proposed to show that the court-martial were perfectly justified in recommending Captain Jervis to mercy on the ground of extenuating circumstances; that Sir William Mansfield, for some reason or other, had taken a personal dislike to Captain Jervis before any of these charges were made; that he made these charges one after the other, in the most vindictive spirit, with every circumstance of provocation and insult; that these charges being all false, thereby drove this young man to acts which were clearly wrong, and which he could not attempt to justify. If, however, Captain Jervis was driven to these acts of insubordination by false charges 1006 made under circumstances of the greatest provocation, his dismissal from the service, so that his prospects in life were entirely ruined, could not be a just sentence. More than that, even supposing it were a sentence just in itself, it could not stand, having been passed by one who was a warm party to the cause. It would outrage public feeling if a judgment passed by a person who was really the prosecutor were confirmed. He had said that the charge of fraud was false. He was justified in saying so, because the court-martial had found that it was false. He declined to go into the facts themselves. He should not have the least fear of the result, for he would pledge his reputation that, upon the facts, as they were produced before the court, not a tribunal in England could have found the accused guilty. But this was an acquittal by court-martial. There could not be a more sensitive tribunal imagined for the investigation of a charge of fraud against an officer in the army. If there were the smallest taint of fraud a more dangerous tribunal could not be imagined; and after having been tried on such a charge by such a court, a person might say that he had gone through the ordeal of fire. He wished to show to the House the circumstances of provocation, and the mode in which the charges were brought forward, and to do that he should marshal the facts as they really happened, and not as they appeared in the blue book, where they necessarily appeared in the order in which the evidence was taken. He could not be said to be strictly impartial in these proceedings, as this young man was the son of his father's sister; but he could assure the House that he had never from his childhood up to the time of this trial heard the slightest reflection on his honour or integrity. [The hon. and learned Member then read at very great length the series of letters, documents, and evidence, as they appear in the blue book, and then proceeded to say:] He assumed that many hon. Gentlemen in the House had read the evidence taken before the court-martial, and he would ask anyone who had read the examination and cross-examination of witnesses, whether in the annals of any court with which hon. Members had had experience, they had ever known questions to be answered upon a criminal charge in the manner that the questions put to the prosecutor were answered on this occasion. One would have imagined that in a criminal charge 1007 preferred against a member of his own household, the prosecutor would have answered the questions put to him with pain, with an appearance of distress, with reticence; or that he would, at all events, have done what he could to shield or excuse the faults committed. But, on the contrary, not a single answer was given without the introduction of extraneous matter—matter evidently introduced for the sole purpose of aggravating the offence and accompanied with every expression of contumely and insult. The defence was, of course, written by the advocate for Captain Jervis, and what was the case with the prosecutor's reply? The nominal prosecutor in this case was an officer in the army, and he would ask anybody who had read that reply, whether it was written by a gentleman in that position. It was evidently written by an astute and practised lawyer; by one of those learned men who were frequently to be found in our colonies but who were but little accustomed to the rough wear and tear of life, and had but imperfect acquaintance with the rules of criminal procedure. This gentleman endeavoured to make out the charge of fraud upon what he called legal presumption, and to his surprise he found that the counsel of Captain Jervis followed the lead. But any man of experience would have scouted such an idea, and he could not understand how any man in his senses could have listened to such absolute nonsense. Besides what tribunal could there be that ought to be more sensitive on matters connected with such a charge than a court-martial engaged in trying a brother officer? This was not a simple prosecution in which the prosecutor was preferring a charge for the purpose of vindicating justice. It was a case in which the prosecutor was endeavouring to make out the strongest case he possibly could against the prisoner. Sir William Mansfield evidently took every possible means in his power, and by the greatest skill at his command to obtain a verdict. What was that verdict? The first charge was with having behaved in a scandalous manner, unbecoming the character of an officer and a gentleman, while employed as aide-decamp in charge of the household expenditure of his Excellency the Commander-in-Chief, in four respects. First, in having at Mahasoo, during the months of September, October, and November, 1865, dishonestly misappropriated to his own use, and for the entertainment of his own 1008 guests, the following wines, beer, and other stores, the property of the Commander-in-Chief, intrusted to him, Captain Jervis, for expenditure on his Excellency's account only; and in having then, or subsequently, with intent to defraud the Commander-in-Chief, entered, or caused to be entered, part of the said articles in the account books of the household in his, Captain Jervis's, charge, as having been expended on his Excellency's account. The charge set forth the misappropriation of so many dozen of wine, and so on, and went into the minutest particulars, stating, among other things, that Captain Jervis had misappropriated one bottle of brandy, one bottle of maraschino, one bottle of curaçoa, six bottles of lemonade, one tin of ham, one tin of bacon, one tin of tongue, three tins of oysters, two tins of sardines, one tin of giblet soup, one bottle of mixed pickles, two bottles of Harvey's sauce, one bottle of Worcestershire sauce, one jar of plum jam, one jar of raspberry jam, one ponnd of tea, two pounds of coffee, and one loaf of sugar. The whole of these articles were said to amount in money value to £92, though when the defence had been made, the value dwindled down to £23. The second portion of the charge was as follows:—In having at Calcutta, in or about the month of February, 1866, with intent to defraud the Commander-in-Chief, charged or caused to be charged to his Excellency's debit, in the account books of the household, in his, Captain Jervis's, charge, the sum of 700 rupees, or thereabouts, the same being the cost of his, Captain Jervis's, own private table espouses at Mahasoo during the months of September, October, and November, 1865.That was, in fact, the same charge in another form. The third and fourth articles were—In having, at Calcutta, or Simla, or both these places, between the 16th of December, 1865, and the 25th of April, 1866, dishonestly misappropriated to his own use the following articles of stable necessaries and horse furniture, of the aggregate value of 275 rupees or thereabouts. In having at Simla, in or about the month of April, 1866, with intent to defraud the Commander-in-Chief, charged under the head of bazaar expenses to his Excellency's debit in the 'bazaar expenses' account book of the household, in his, Captain Jervis's, charge, the sum of 47 rs. 14, the same being the cost of his, Captain Jervis's, private expenses from the 25th to the 29th of March, 1866, inclusive, while en route from Calcutta to Simla, and not in attendance as aide-de-camp.These four items went to make up the first charge. The second charge was—With having at Simla, on the 14th of May, 1866, neglected to obey the order of his Excel- 1009 lency the Commander-in-Chief to produce before a military Court of Inquiry certain books, accounts, and vouchers, the property of the Commander-in-Chief, in his (Captain Jervis's) possession.The third charge was—With having at Simla, on the 22nd of May, 1866, neglected to obey the order of his Excellency the Commander-in-Chief to attend a Committee of audit, which had been assembled by order of his Excellency.The fourth charge was for having disobeyed the lawful command of his superior officer in refusing to give up his sword. The fifth with having written a disrespectful letter to the court-martial. The verdict was delivered in the following terms:—The Court are of opinion that the prisoner, Captain Ernest Scott Jervis, of Her Majesty's 106th Regiment (Bombay Light Infantry) is not guilty of the first and second charges preferred against him, and do accordingly acquit him of the same, and that he is guilty of the third, fourth, and fifth charges preferred against him. The Court sentence the prisoner, Captain Ernest Scott Jervis, of Her Majesty's 106th Regiment (Bombay Light Infantry) to be dismissed the service. The Court having awarded a sentence of dismissal, and marked their sense of the prisoner's military misconduct, do now beg to recommend him to mercy in consideration of the extenuating circumstances disclosed in the proceedings.That was, that the court-martial acquitted Captain Jervis of the first charge in which the four particulars of fraud were set forth, and upon, the second, in which he was charged with having neglected to give up the books, vouchers, and accounts, found him guilty of the three remaining charges, involving military misconduct. What was the meaning of that? It could not mean that the Court desired he should be dismissed the service. What were the extenuating circumstances to which the Court referred? That he had been falsely accused of fraud; for if he had not been falsely accused of fraud what extenuating circumstances could possibly be found in the case? Sir William Mansfield had brought certain charges of fraud against his own aide-de-camp, and had pressed them with the greatest subtlety before a court-martial which he himself had nominated, and, after doing all he possibly could to procure a conviction, that court-martial decided that the charges were incorrect and false. What would have been the feelings of an ordinary English gentleman under such circumstances? What might reasonably have been expected from any person holding the high position filled by Sir William Mans- 1010 field? It would naturally have been expected that he would have written to Captain Jervis, have expressed his sorrow that the charges should have been made, his happiness that they had been disproved, and would have acknowledged that it was impossible for him, under the circumstances, to confirm the sentence of dismissal. But what did Sir William Mansfield do? He drew out as artful and as subtle a description of the evidence as possible, bringing into prominence every point that could be urged against Captain Jervis, and he sent that statement, with the authority of his own name, to the court-martial, desiring them to re-consider their finding on the first and second charges, informing them, at the same time, that he had no fault to find with their verdict, as far as it referred to the three latter charges on which Captain Jervis was found guilty. What was the reply given?—The court, having attentively re-considered the whole of the evidence, and also the communication from the revising officer, do now respectfully adhere to their original finding.One would have thought that after such an answer hatred itself would have been satisfied, and that Sir William Mansfield would, at all events, have withdrawn any charge, but what did he do? He wrote a General Order. He supposed, though he was not sufficiently acquainted with military matters to be certain upon the point, that such an Order was published throughout the army, and he would venture to say that, coming from a man who had occupied the position of prosecutor, such a thing had long been entirely unknown in England. That Order was—1st Charge.—It is to be regretted that, in accordance with precedent and the advice of the Judge Advocate General of the Army, the Court did not find a special verdict, with regard to the facts admitted by the prisoner and the intention denied by him.The meaning of that was that Sir William Mansfield's counsel had agreed that, the facts having been admitted, the necessary conclusion of the law was that the intention should have been inferred—Putting aside the question of form, it is now the duty of the Commander-in-Chief to say that his Excellency is advised that the proof for the prosecution is complete in the several instances of the first charge, with the exception of variances as to certain items. This was shown in the careful analysis of the evidence and the law regarding it, which was submitted to the Court on revision. The Court, in its discretion, having, nevertheless, recorded an acquittal, his Excellency may express his personal gratification that the character of one 1011 he has long befriended will have the advantage of this verdict in time to come. His Excellency can only regret that serious military misconduct on the part of the prisoner should have deprived him, before the trial, of the benefit of the doubts on which the Court has apparently acted.The House would observe that General Mansfield there spoke of the doubt entertained by the court-martial. But the court had not expressed any doubt. The General, however, took it upon himself to say that the fraud had been committed, and that doubt had prevented the Court from finding him guilty of it. In the judgment of Sir William Mansfield it was further stated—2nd Charge.—His Excellency is further advised that the verdict on the second charge is contrary to clear and sufficient proof. In this instance, the prisoner disobeyed orders which were reasonable, in accordance with the custom and regulation of the army, and without obedience to which he could not possibly clear his character of the most serious imputations. According to the principles of military discipline, and the dictates of the English Judges, all officers and soldiers are bound to obey orders which are reasonable and not contrary to the law of the land. The Commander-in-Chief might, perhaps, earn a cheap reputation for clemency and liberality by attending to this recommendation. His Excellency is compelled to show how such action on his part would amount to a betrayal of his duty. The Court, if it considered the prisoner a fit and proper officer to retain the commission of a Captain in Her Majesty's service, could have awarded punishment other than dismissal. With respect to the alleged extenuating circumstances as being the ground of the recommendation, his Excellency is under the necessity of showing to the Court that they have no existence.Sir William Mansfield goes on to say—In the course of this long and unduly protracted trial, there was much requiring unfavourable comment in the matter of procedure. The Commander-in-Chief trusts that the faults of procedure to which he alludes, involving great lose of time, the abuse of the right of cross-examination, and the making use of a court-martial to propagate attacks on witnesses not in presence of the Court, will not be drawn into precedents hereafter. This matter will be more particularly dealt with in detail by the Judge Advocate General of the Army, for the guidance of General officers and courts-martial.In this case, Sir William Mansfield gave judgment in his own favour. Even if his judgment had been right, this would have been contrary to our notions of what was correct, because in this country it was never allowed that a judgment by a party in the cause should be allowed to stand. But, in point of fact, the judgment was clearly wrong. If the court-martial had considered Captain Jervis guilty of the frnud there could not have been any extenuating circumstances. The Court, however, found 1012 that there were extenuating circumstances. This General Mansfield took upon himself to deny, and ordered Captain Jervis to be dismissed the service. That judgment was referred home to his Royal Highness the Commander-in-Chief. He trusted the Members of that House had read the despatch of the Commander-in-Chief. It was a document which maintained the character that had won for his Royal Highness the respect and esteem of every one in the country. Nothing could be more satisfactory than this despatch. Though it was in guarded and dignified language, it did substantially use against the judgment of Sir William Mansfield the arguments which he was now endeavouring to bring under the notice of the House. He pointed out that Sir William was a party to the cause, that he had not carried out the sentence as the court-martial wished it to be carried out, that he had disregarded the extenuating circumstances, that he had reiterated the charges of fraud, and that therefore his Royal Highness entirely disapproved of the course he had taken. In pages three and four of the despatch there was this statement—Entertaining these views, therefore, the Duke of Cambridge is unable to concur in the propriety of the Instructions contained in your Excellency's Memoranda, dated 30th March and 14th of April last, drawn up for the guidance of the officers of your personal Staff, similar documents to which have never before come to his Royal Highness's notice.…. But, granting even that your Excellency's views as to the position and duties of an Aide-de-camp were correct, the Field Marshal Commanding-in-Chief greatly deplores that the first steps taken by you in reference to Captain Jervis should have been of a nature so calculated to lead to opposition to your authority, and eventually to the necessity for bringing him to trial. His Royal Highness cannot help thinking that had you in the earliest stage of these proceedings acted in a more concilatory manner towards him — and, considering the long and personal intimacy of your relations with that officer, his Royal Highness is impressed with the conviction that your Aide-de-camp had a claim to such consideration at your hands—much of what afterwards occurred might have been prevented, and a great and deplorable scandal averted. His Royal Highness conceives that the course to have adopted on its becoming known to you that the management of your household and farm was not in accordance with your belief and intention was for your Excellency to have recalled Captain Jervis from his temporary leave of absence, and to have invited him to explain personally to you any matter in which it appeared to you that his conduct was questionable; a private invitation on your part to enter into a full and unreserved explanation was far more calculated to lead to a satisfactory result than the semi-official demand conveyed to Captain Jervis through your military 1013 secretary. The Duke of Cambridge makes every allowance for your feelings of surprise and mortification at believing yourself to have been deceived by an officer of your personal Staff, in whom for years you had placed such entire reliance, and his Royal Highness understands how distasteful it would have been to you to have had to avow personally to that officer that your confidence in him was shaken. Notwithstanding, however disagreeable to your feelings the adoption of such a course, his Royal Highness is convinced that it was the proper and judicious one, and deeply regrets that you did not follow it. Still more does he regret your having entered into a personal examination of your servant on matters so materially affecting Captain Jervis's character without inviting that officer to be present personally to explain or refute the accusations made against him. It appears to his Royal Highness that it was only due to Captain Jervis to give him this opportunity of entering into a personal explanation; and that this apparent want of consideration for his feelings as an officer and a gentleman was eminently calculated to lead to continued misunderstanding, and to rash and ill-considered action on the part of your Aide-de-camp.The despatch went on to refer to the opinion of the Judge Advocate General, which even in his right hon. and learned Friend's presence he would say was an admirable one. The Judge Advocate General observed—No point which could possibly be urged in favour of a conviction was omitted in the very able reply for the prosecution, and all the arguments which could tell against the prisoner were accumulated with remarkahle subtlety and ingenuity in the minute and accurate analysis of the whole case drawn up by the Judge Advocate General of Bengal, when the Court was ordered to re-assemble for the purpose of revision; and this last document was submitted to the Court with the further sanction and authority of the Commander-in-Chief. The Court deliberately found in favour of the prisoner, and I do not feel myself justified in saying that such finding was wrong.The despatch referring to that opinion stated—In this opinion his Royal Highness entirely concurs, feeling sure, from a perusal of the proceedings, that the Court had every opportunity of arriving at a just judgment, and only formed it alter a most anxious consideration of every fact and argument brought before them. In rejecting the recommendation of the Court in the prisoner's favour his Royal Highness considers your Excellency to have allowed yourself to enter into observations which he extremely regrets with reference to their probable effect on the army at large.He now desired to speak with the greatest possible delicacy. If that despatch had been consistently acted on he would have nothing to desire in this case. It seemed to him the real meaning of the despatch was that General Mansfield's decision had been wrong in both points. It had been wrong because it was a decision pronounced 1014 by General Mansfield in his own case. It was one which he ought never to have given, because he ought to have sent the matter home in order that the judgment might be pronounced in this country. Then it was wrong in fact. General Mansfield neglected to give effect to the extenuating circumstances. The court-martial acquitted Captain Jervis of fraud, and therefore it must be taken that he had been falsely accused of that offence. He repeated that if the despatch of the Commander-in-Chief had been consistently acted on in its reasonable sense he should have been satisfied. But, though he had not the least doubt of the desire of his Royal Highness that justice should be done in the case, he regretted to say that full effect had not been given to the despatch by the Commander-in-Chief, and by his right hon. Friend the Secretary for War. In a subsequent letter Captain Jervis was told that, after a full consideration of the case, his Royal Highness the Commander-in-Chief had decided that the sentence of the General court-martial should have effect from the date on which it was confirmed. The letter further stated that, with reference to the recommendation to mercy recorded by the Court, the Secretary of State for India and the Secretary for War had consented to Captain Jervis receiving a sum of money equivalent to the full value of a captain's commission, and that the sum of £1,800 would therefore be paid to him. What he (Mr. Brett) asked, was £1,800, or £40 a year to a young man dismissed from the service? A General Order had been promulgated throughout the Army of India in which the charge of fraud was reiterated. Who would now understand that the charge of fraud was not confirmed by the military authorities? Would it be understood in the army that the £1,800 was to be paid to Captain Jervis because he had been acquitted of fraud? The note of the Commander-in-Chief gave no more effect to the extenuating circumstances than the action taken by Sir William Mansfield. The £1,800 to be received by Captain Jervis was a thing of no value whatever, when considered as a solatium for wounded honour, and Captain Jervis was right in declining without hesitation to accept it. On these considerations, then, he asked the House to assent to his declaration, that although Captain Jervis had been guilty of grave military insubordination, which he did not for one moment wish to justify, yet his guilt was 1015 pardonable because it was induced by provocation rarely given, and that, therefore, the sentence upon him was unjust. Estimated in accordance with the principle of justice in its highest sense, the sentence was most harsh, simply because the whole circumstances of the case were not taken into consideration. He accordingly asked the House to join with him in praying Her Majesty to re-consider the sentence of the court-martial held at Simla on Captain Jervis, with a view to reinstate that officer in his rank in the army and in his regiment.
Motion made, and Question proposed,
That an humble Address be presented to Her Majesty, praying that She will be graciously pleased to re-consider the sentence of the Court-Martial held at Simla on Captain Jervis, with a view to reinstate that Officer in his rank in the Army and in his Regiment."—(Mr. Brett.)
said, he could not but regret that the hon. and learned Gentleman had brought forward this Motion, and he still more regretted that the despatch of his Royal Highness the Commander-in-Chief had been moved for, and that the Government had consented to lay it on the table of the House. He thought that no one who read that despatch would disapprove the view taken by the Commander-in-Chief of Sir William Mansfield's conduct. That despatch was submitted to him (General Peel), and approved by him; and by that approval he had taken upon himself the responsibility it involved as the Secretary of State for War must always do in the case of actions of the Commander-in-Chief approved by him. In ordinary cases of discipline it would be very unwise for a Secretary of State to interfere with a Commander-in-Chief; but this was no ordinary case. The question of the conduct of the Commander-in-Chief in India, and the authority he exercised, was of such importance that his Royal Highness the Commander-in-Chief of the British Army thought proper to consult both the Secretary for War and the Secretary for India before acting in the matter. The first question submitted was, whether or not Sir William Mansfield should be removed from his command? His Royal Highness expressed a very strong opinion on the subject. Although he disapproved of the conduct of General Mansfield in reference to the Simla Court-Martial, his Royal Highness said there was nothing illegal in it, and nothing to justify the ex- 1016 treme measure of removing so high and distinguished an officer as Sir William Mansfield from his command. But his Royal Highness said he should not hesitate to express to General Mansfield in the most unreserved terms his opinion upon the whole case. That opinion was expressed in the despatch which had been read, and which he (General Peel) had approved. But that despatch expressed the private opinion of the Commander-in-Chief in England to the Commander-in-Chief in India as a guide for his future conduct. Had he (General Peel) known that the despatch would have been made public, he should not have given so unhesitating an approval of it. He should have pointed out to his Royal Highness that he would have thought it better at once to have removed General Mansfield from his command than to have subjected him to a public censure, which must have the effect of weakening his authority in India, and to a certain extent destroying the prestige and influence which a Commander-in-Chief ought always to possess. His Royal Highness would be the last person to do anything to weaken the authority of the Commander-in-Chief in India. Had he (General Peel) known that the despatch would be made public, he would have pointed out that it was too long and argumentative, and that, by quoting the opinions of the Judge Advocate, it almost invited an answer from General Mansfield. Had it been intended as a public censure, it ought to have been couched in terms which would admit of no answer. He objected to the production of the despatch as much on the part of the Commander-in-Chief as on that of Sir William Mansfield. He should doubtless be told that it was not a private or confidential communication; but he considered that to be a private document which was not intended by the writer to be made public. Had his Royal Highness intended to administer a public censure to Sir William Mansfield, he would have taken some method of making that censure known to the Indian Army, and not have left it to a chance Motion in that House. It often happened that the Government refused to lay upon the table communications that took place, not only with regard to such cases as these, but between the different public offices. The publication of such communications would tend to stop confidential expression of opinion between officers of State. His (General Peel's) only object was to request that the House 1017 would not assent to the Motion, unless it was prepared to approve of it on the only ground upon which it had a right to interfere. He presumed that they had not yet arrived at that point at which any hon. Member would deny the undoubted Prerogative of the Crown to dispense with the services of any officer without giving a reason for so doing. That Prerogative was exercised by a Minister who was responsible to the House for the manner in which he acted, and if the intention of the hon. and learned Member (Mr. Brett) was, as might be inferred from the conclusion of his speech, to censure the conduct of the Commander-in-Chief or of the Secretary for War, he had a perfect right to press his Motion to a division. He (General Peel) defied the House to pass that Resolution without, at the same time, passing a Vote of Censure on his right hon. Friend the Secretary for War and his Royal Highness the Commander-in-Chief. One point which weakened his regret that the despatch should have been laid upon the table was, that it proved how admirably his Royal Highness the Commander-in-Chief conducted the business of his office, it would prove to those who were always professing to believe that there was a constant antagonism between the Secretary for War and the Commander-in-Chief that nothing of the kind existed, but that the most intimate relations subisted between them. There was another point. If the House was ready to accord praise to the Commander-in-Chief in regard to General Mansfield's conduct, why not put equal confidence in what he had done with respect to the conduct of Captain Jervis? If General Mansfield were wrong, that did not make Captain Jervis right. He (General Peel) was not responsible for any decision that had been come to with regard to Captain Jervis, inasmuch as he had left office before that decision was arrived at, but he believed that the same justice had been done to Captain Jervis that had been done to General Mansfield. Why should it be supposed that the Commander-in-Chief should censure General Mansfield, and not be prepared to mete out justice to Captain Jervis? Of all tribunals that could be called upon to give a decision in a case of this kind the House of Commons was the very worst. If that House was prepared to make itself a Court of Appeal in such matters, it could not confine its deliberations to cases in which officers who had the good or bad fortune to 1018 have connections in that House were concerned. There was not a corporal who had the stripes taken off his arm, or a private who had stripes put upon his back at the instance of a court-martial whose case might not be brought before that House. That was the precedent they were about to establish if they passed the Motion of the hon. and learned Member. The case had been decided. Captain Jervis was dissatisfied, and called upon the House to reverse the decision. Supposing the House consented to reverse that decision, what would happen? In every similar case there would be a similar appeal. The Commander-in-Chief would no longer be regarded as the final appeal in military cases. He was afraid that he was about to make a very bad return for all the kindness which he had received from the House of Commons, but he had no hesitation in saying they were every day assuming a power which the Constitution of this country never intended that they should exercise. They were endeavouring to take upon themselves the Executive Government of the country, and in no case could that be more detrimental than when they interfered with the command and with the discipline of the army. What was the Motion? It asked them to agree to an Address praying that Her Majesty would re-consider the sentence of the court-martial held at Simla on Captain Jervis for the purpose of reinstating that officer in his rank in the army and in his regiment. He was not prepared to assent to that Motion. The case of Captain Jervis had been already considered by Her Majesty's Advisers, and he saw no reason for finding fault with their decision.
§ MR. DUTTON
said, that the hon. and learned Gentleman who had brought forward that subject had stated very candidly that he was a near relative of Captain Jervis. He must say, with equal candour, that he stood in near relationship to Sir William Mansfield. He spoke in all sincerity when he said he believed that Sir William Mansfield had acted from no personal dislike or ill-feeling towards Captain Jervis. Great stress had been laid on certain of the duties which Captain Jervis had to perform as aide-de-camp to Sir William Mansfield, and which tended, perhaps, to give that matter a somewhat ridiculous aspect. It might appear strange to some hon. Members that these duties should be performed by an officer in Captain Jervis's position. But he believed it was customary for aides-de-camp to fulfil 1019 such duties, and, at any rate, Captain Jervis himself knew what he was undertaking. It would be very distasteful to him to go through the evidence with a view to criminate Captain Jervis; but he felt bound to notice two or three points. It appeared that that officer became aide-de-camp to Sir William Mansfield in 1865, and subsequently, at his request, undertook the management of his household accounts and those of his farm. While Captain Jervis was away, owing to certain accounts that were sent into quarters, some suspicion attached to that officer. So far from Sir William Mansfield having summoned two servants in Captain Jervis's absence to criminate him, his butler, named Abbey, came forward voluntarily and gave some information which induced Sir William Mansfield to ask for an inspection of the books. Captain Jervis, who, he believed, was a remarkably good accountant, declined to give up the books, but asked for a committee of inquiry. He (Mr. Dutton) did not think it was the partial one that the hon. and learned Gentleman sought to prove, and every opportunity was given to Captain Jervis to free himself from suspicion. A fair course of conduct was pursued towards him, and it was natural to suppose that Captain Jervis should wish to prove that his conduct was above suspicion. It was charged against Captain Jervis that in managing the farm of Sir William Mansfield he traded on his own account, making use of his Excellency's name and of his Excellency's servants. By his refusal, if he were innocent, which he trusted he was, he did himself great injustice. The charge against Captain Jervis he did not wish to follow up too closely. A gentleman's farm very seldom did pay, and he believed that in this instance the thing did not answer. Another point was that Captain Jervis's travelling expenses were mixed up in an irregular manner. That fact was, he believed, put in evidence, and he had not seen it at all denied. Another case related to an outlay in building, where a very considerable sum of money was expended by Captain Jervis in excess of the amount which Sir William Mansfield authorized. The principal charge against Captain Jervis was that when Sir William Mansfield had agreed to pay 2,000 rupees for raising the aide-de-camp's house a storey Captain Jervis had spent on it 5,765 rupees additional, which he had drawn from other funds of Sir William's. He did not wish to say that an 1020 answer to all that could not be put in; but he did say that there was sufficient reason why Captain Jervis should be made accountable for his conduct. Sir William Mansfield, as he had said, had no desire to bring the matter before a court-martial, but wished that it might be dealt with by a civil proceeding. That, however, could not be done, owing to the provisions of the Mutiny Act and the distant situation of Simla; and his Excellency was advised by his legal advisors that the case should be dealt with by a court-martial. Sir William Mansfield, accordingly, brought the matter before a court-martial, and there he appeared in the position of prosecutor as well as Commander-in-Chief. This was a most unpleasant position for him to occupy, though caused by no fault of his, but one which was due to the unfortunate contingency which had arisen. Sir William Mansfield had endeavoured to act with impartiality. The court-martial acquitted Captain Jervis on the two principal charges, and they strongly recommended him to mercy, thereby putting his Excellency in a great difficulty. He said, with great pain, that the finding of the court-martial merely amounted to "not guilty," and was not a full and honourable acquittal. Had it been so, Sir William Mansfield's course would have been an easier one. His Excellency, however, thought it was not for the good of the service that he should overlook the finding of the court-martial on the other charges. The court-martial had the power of awarding any sentence, from a severe reprimand to a far heavier punishment. If they had done the former Sir William Mansfield would have been relieved from all reproach on the score of not having acted on that recommendation to mercy. His Excellency had consulted the Judge Advocate General, and had throughout acted upon the best legal advice which he could have taken. He thought it impossible to condone the matter. All he (Mr. Dutton) wished to do was to protest, which he did with all sincerity, that Sir William Mansfield had been actuated by no personal feeling in the matter; that he had deemed it his duty—and it was a very painful one—to carry out the finding of the court-martial; that he had done so very much against his own feeling and inclination; and that he had acted entirely throughout his long and distinguished career for the good of the army at large.
§ LORD WILLIAM HAY
said, he knew 1021 Sir William Mansfield to be a man who had served his country well, but he must confess that in this particular case he thought the conduct of that distinguished man had been most reprehensible. He concurred with every word of the despatch which had been alluded to by the late Secretary of State for War (General Peel). The question really at issue was not the conduct of Sir William Mansfield, but whether Captain Jervis should be restored to the army. He would only refer to one charge, or rather, one part of the charge against Captain Jervis. There was a difference between a simple acquittal on such a charge and a full and honourable acquittal. A simple acquittal was equivalent to the Scotch verdict of "Not proven." Captain Jervis was fully aware of the difference. He told the Court he must be regarded either as an innocent man or a felon, and an acquittal would be of little value to him unless it was a full and honourable one. That acquittal was not a full and honourable one, and therefore it would be, by his own confession, of little value to Captain Jervis. The first charge was that at Mahasoo, where Captain Jervis lived in part of the month of September, October, and November, 1865, he appropriated certain stores, including several bottles of sherry, champagne, and claret, and other stores. Mahasoo was six miles from Simla, of which place it was as it were the Fulham, and when Captain Jervis had charge of Sir William Mansfield's establishment at Simla he took a house for himself at Mahasoo. He lived in that house during the months of October and November, entertained his friends, and gave parties and pic-nics. And how did he entertain those friends? With the Commander-in-Chief's wines and stores. It was not disputed that no account was rendered of those stores. It was not denied that twenty-four dozen of wine and a variety of stores were consumed there by Captain Jervis, and no one asserted that the value was credited to Sir William Mansfield. Another aide-de-camp who took part in one of those entertainments, paid his share of the expenses amounting to 230 rupees, but neither that nor any other sum was credited to Sir William Mansfield for these stores. Something had been said about these stores consisting of "tins." In India everything except beef and mutton was kept in tins, and therefore the stores in these tins represented so much money's worth. Some 222 of these tins and several dozen of wine were appro- 1022 priated by Captain Jervis, and next year when the Commander-in-Chief went back to Simla, no account of them was rendered, nor had they been accounted for to this day. He did not mean to say that Captain Jervis meant fraudulently and dishonestly to appropriate these stores, but his conduct was calculated to excite suspicion. He had no intention to express a full conviction of Captain Jervis's guilt, but if his conduct in the other cases entered into by the court-martial were as suspicious and as discreditable as this case, he was not surprised that the Commander-in-Chief had not restored him to the army.
said that the right view of this question had been taken by the right hon. Gentleman (General Peel)—namely, that it was not the province of that House to review the decision of a lawfully constituted tribunal, either in this country or elsewhere. If the House should declare its readiness to re-open the decisions of the tribunals of the Empire, he or any other member of the legal profession, having a client who might be dissatisfied with the judgment of a Court of Law or Equity, might come before the House and ask the House to agree to a humble Address to Her Majesty very much in the terms of the present Motion with a view to reverse the decision of a Judge of one of the Superior Courts. He had read with surprise some of the items of duty imposed by the Indian Commander-in-Chief on his aides-de-camp, who seemed in that part of the world to be placed pretty much on the level of footmen. It was not the province of that House to entertain the question.
§ SIR PATRICK O'BRIEN
said, he would remind the noble Lord (Lord William Hay) that the court-martial had before them the witnesses in the cause, and after due consideration they not only found Captain Jervis innocent of the charges against him, but after Sir William Mansfield, using the influence of his position, had called upon the officers of the court-martial to review their decision, they deliberately re-affirmed it. The noble Lord could not be as well qualified to pronounce a decision as the court-martial. He had the highest possible respect for the right hon. Gentleman (General Peel); but it was a strange principle to lay down that such a despatch as that of his Royal Highness the Commander-in-Chief of the Army ought not to have been made public. That despatch had a much wider application than to the officer to whom it was ad- 1023 dressed. It conveyed to every officer in the army that, although he was liable to military law, and must be amenable to military discipline, yet there was at the head of the army a Commander-in-Chief who might be looked to as a Court of Appeal, and who would see that justice was done to the humblest officer in the service. It was said that this was a private despath; but despatches marked "confidential" in diplomatic negotiations on matters of European importance were constantly laid before the House. He understood that a document issued by any department which was meant to be purely confidential was always styled a letter as distinguished from a despatch; the use of the latter word implying that it might under conceivable circumstances be produced. The 27th paragraph of his Royal Highness's despatch, which had not been read by the hon. and learned Gentleman, but which contained the gist of the whole question, was as follows:—It becomes the duty of the Field Marshal Commanding-in-Chief, under these circumstances, to inform your Excellency that he cannot approve the remarks which you have thought fit to publish in your General Orders, for his Royal Highness cannot ignore the fact that those remarks have a practical tendency to weaken the independence of courts-martial, to bring contempt on military tribunals in the eyes of the public, and to affect the discipline of the army in a very material degree.That paragraph implied that the public must be made acquainted with the opinion entertained in high quarters. His belief, after reading the Papers, was that Captain Jervis became unpopular in Sir William Mansfield's social circle by not satisfactorily discharging his social functions, and that on this account he was sacrificed. To remove him from the Staff was a very different thing, however, to removing him from his profession altogether. He could now understand why many of the Staff officers were not appointed from the Staff College, for there were probably no Professors there to teach the particular regulations presented in Sir William Mansfield's Memorandum. The treatment of Captain Jervis had been oppressive and unjust. Even, however, if Captain Jervis could not be retained in the army, he protested against the people of India being saddled with the £1,800 requisite for settling the dispute between him and Sir William Mansfield. The Indian Department, the War Office, and the Horse Guards being in a difficulty, they appa- 1024 rently determined to solve it at the expense of the impoverished people of India.
§ MR. HOWES
said, that justice had not been done to the high tone of feeling manifested by Sir William Mansfield throughout these proceedings. At his examination at the court-martial, Sir William Mansfield said—There is one thing which, in the exercise of my office, I cannot cast aside or condone, and that is the allegation of scandalous conduct against an officer bearing Her Majesty's commission. When such an allegation has been made it is the imperative duty of the superior officer, according to Act of Parliament, to compel the accused to clear his character, or to see justice done in the sense of the Mutiny Act and Articles of War. The superior officer, even if he would, is himself responsible in this matter that there shall be no condonation. I would hold any officer commanding a regiment in this army responsible for such condonation, if it came to my knowledge, and I would attack his commission for it. That which I exact from others in the execution of my office I cannot flinch from myself, however odious and disgusting the duty, as in the case of the present prosecution.He believed that was the explanation of Sir William Mansfield's course, which was taken under the advice of the Law Officers of India. He regretted that his hon. and learned Friend, in bringing forward the Motion, had allowed himself to use expressions with reference to Sir William Mansfield hardly worthy of him. His hon. and learned Friend had spoken of the charges of Sir William Mansfield as false, incorrect, insulting, vindictive, and he even used the expression "hatred." As one connected with Sir William Mansfield, he knew he was incapable of the feelings attributed to him by his hon. and learned Friend, and that he was animated by a strong desire for justice and for the discipline of the army.
§ SIR JOHN PAKINGTON
Accepting the entire responsibility of the decision arrived at in this case, I wish in the first place to remind the House that I have no relationship with either party; that I have never, as far as I am aware, seen either Sir William Mansfield or Captain Jervis, and that I formed my opinion upon an impartial consideration of the merits of the case. With regard to the production of the letter of the Commander-in-Chief, my right hon. Friend (General Peel) has stated that he was responsible for it, and that it would never have been written had he thought it would be made public. I was fully aware of the importance of that letter, and it was produced with the concurrence of my Colleagues, and on my de- 1025 liberate conviction that its production was essential to a proper understanding of the case. It was in no respect a private document. It was not marked "private" or "confidential," nor was it signed by the Commander-in-Chief. It was written as a public State paper, it was signed by his Royal Highness's Military Secretary, and it conveyed to the Commander-in-Chief in India the deliberate judgment of the highest authority in England. It was written, moreover, after reference to the Judge Advocate General, and it contains several extracts from his Report upon the evidence. Being, therefore, an important part of the proceedings in this matter, I felt bound to produce it, and, in my opinion, if it had not been produced justice would not have been done. The answer which I am prepared to make to the Motion is two-fold. First, I rest it on what I consider the grave impropriety of making the House of Commons a Court of Appeal from a grave and serious decision of a military tribunal. Secondly, and irrespective of that question, I say that full justice has been done in the matter. I confess it would have been difficult to have contended that full justice has been done if the opinion of the Commander-in-Chief had not been produced on the merits of the case. No one can wonder that my hon. and learned Friend (Mr. Brett) should desire to vindicate the conduct of his relative, and make the best possible answer on the merits of the case; but I confess I feel surprised that any Gentleman of the great professional standing and long professional experience of my hon. and learned Friend should have thought it right to invite the House of Commons to act as a Court of Appeal, to revise the proceedings of a court-martial, and enter into the whole merits of an elaborate trial which occupied, I think, twenty-seven days before one of the established tribunals of the country. Sir, I submit to this House that we are not competent to these duties, and that if we were to attempt to discharge them we should take a course fatal to the discipline of the army and to the administration of justice in this country. There are two elements indispensable to any Court of Appeal—one is a complete knowledge of the case, and the other is that such a review should be entered into in a calm, judicial, and impartial spirit. Now, Jet me ask how many Gentlemen are there at present in this House who are prepared to rise in their places and say that they 1026 have made themselves masters of the evidence which occupied twenty-seven days in the hearing, and of the various arguments which have been brought forward in the elaborate statements by which that evidence has been supported or rebutted? I think that very few will venture to say that they are at this moment in a position to enter into this question with impartiality. What is the position of my hon. and learned Friend who brought the case before us to-night? His position is this—he appears before us in a three-fold capacity as advocate, juryman, and judge. I venture to caution the House, before they decide on supporting the Motion of my hon. and learned Friend, to take warning from the proceedings of this House a few years ago with respect to the last court-martial to which the public attention of this country was directed—I refer to the case of Colonel Crawley. The House must remember that in 1863 the public mind was agitated about the proceedings of a court-martial which was held in India. The House must remember how strong was the public prejudice, how loud the public clamour, how the press of this country condemned Colonel Crawley and accused him of the murder of Sergeant Lilley. We must all remember the speech delivered by the hon. Member for Andover (Mr. D. Fortescue) when in 1863 he brought the case before the House and paved the way for the proceedings that followed when Colonel Crawley was brought to trial at Aldershot. And now let me remind the House how the case ended, and read the terms of the finding of the court-martial. They were these—The Court is of opinion, with regard to the first charge, that the prisoner is not guilty. With regard to the second charge, the Court is of opinion that he is not guilty.And then the Court went on to use these words—The Court does therefore fully and honourably acquit Lieutenant Colonel Crawley of all the charges preferred against him.That case of Colonel Crawley led to debates in this House, and I cannot help quoting some words which fell from the noble Lord the Member for North Lancashire (the Marquess of Hartington) who then represented the War Department in this House, and who used on that occasion language peculiarly applicable to the question before the House. The noble Lord said that— 1027The conduct of the Government in ordering the court-martial at Aldershot has been the subject of criticism, and the Government are perfectly prepared to afford the House all the materials that could be possibly desired to form a judgment upon the merits of their conduct. But the Government did not expect, and I think the House will hardly hold it to be right, that, when a full and ample investigation has been gone into before the only tribunal, to form and pronounce a decision upon the case, it is hardly fair, or honourable, or consistent with our notions of fair play, that the evidence should be again gone over in this House, and that the country should be invited to arrive at a different conclusion from that already formed."—[3 Hansard, clxxiii. 1656.]But the House will see that that is the very course which is now being taken. My hon. and learned Friend has gone over all the evidence again and has asked the House of Commons to re-try the case. He has has gone into all the arguments and the painful correspondence which took place between Sir William Mansfield and Captain Jervis. He has asked us not only to form a judgment of our own, but to reverse the decision deliberately arrived at, not only by the court-martial, but by the military authorities in this country, and to address the Crown to set aside the solemn decision of a court-martial, whose independence, impartiality, and justice, have been distinctly recognized by the Judge Advocate General and the Commander-in-Chief. I have never heard the impartiality or justice of that court-martial impugned, and yet my hon. and learned Friend has asked me to review their decision, to reverse their judgment, and, as the noble Lord opposite had said, "to arrive at a different conclusion from that which had been already formed" after a patient trial of twenty-seven days. I have here a similar passage delivered at the same time by a right hon. and learned Gentleman, whom I am sorry not to see in his place to-night, because there are few in this House who could give us better counsel—I mean the right hon. and learned Gentleman the Member for Newcastle (Mr. Headlam). That right hon. and learned Gentleman said upon the occasion to which I have before referred—I can assure the right hon. and gallant Member for Huntingdon (General Peel) that every one who has had anything to do with the administration of the affairs of the Army join with me in deprecating the discussion of the proceedings of courts-martial in this House."—[3 Hansard, clxxiv. 67–8.]Such was the language of the right hon. and learned Gentleman. I cannot imagine anything more inconsistent with our ideas of justice than for a popular assembly to re-try this case, and give a verdict upon 1028 evidence which occupied the Court for such a length of time, and a decison upon which was arrived at after the most solemn and deliberate inquiry. If there were anything which would justify a Motion of this kind it would be that there had occurred a grave violation of justice. But justice has been fully done, and the object of the authorities in this country has been to carry out the decision of the court-martial in India. I am a party to the decision, and I know that the anxious desire of the authorities in this country has been to act as fairly as they could upon the judgment of the court-martial. When I accepted the office I now hold this case was under consideration at the Horse Guards. My right hon. and gallant Friend the Member for Huntingdon (General Peel) has stated very justly that as regards Sir William Mansfield the case had been decided before he left office in conjunction with the noble Lord the Member for Stamford (Viscount Cranborne) then Secretary for India. The Commander-in-Chief, with the assistance of both the noble Lord and right hon. and gallant Gentleman, had arrived at the decision to send out the despatch which has been the subject of discussion this evening. With respect to that despatch, no one will dispute that the Commander-in-Chief approached the judgment that was delivered, with regard to Sir William Mansfield, in a way of which every one must approve. Of all the men I have ever known I have never met one less likely than his Royal Highness to be guilty of anything like undue severity, or to take any course which might be open to the charge of harshness or unfairness towards any person upon whose case he had to decide. When I entered upon my present office his Royal Highness did me the honour of consulting me upon this question. There were two questions to be decided with respect to Captain Jervis—first, did the circumstances of the case require that in strict justice he should be reinstated; and, secondly, if he could not be reinstated, by what course could the Commander-in-Chief give effect to the recommendation to mercy of the court-martial? It was the opinion of the Commander-in-Chief—an opinion in which, after full consideration, I concurred, and in which every military authority of high rank whom I consulted agreed, that, looking at the whole of the case, and with every endeavour to do justice, Captain Jervis could not with propriety be reinstated in the army. I have no wish to speak with any undue harshness of 1029 Captain Jervis, but I protest against the competency of this House to re-consider the case. I say, first, that the case was disposed of by court-martial, upon a principle of justice that no one can impeach; and, secondly, that it has been disposed of with due regard to the same principle by the military authorities at home. We would not be carried away by popular clamour on the one hand, or on the other by the feelings which may influence relations or Gentlemen in this House respecting the conduct of Sir William Mansfield. I am not standing here as the champion or the advocate of Sir William Mansfield. I admit entirely the grave indiscretion which has marked his conduct throughout. I do not for a moment defend the conduct of Sir William Mansfield. I think it is open to much censure. It has received—I beg the House to remember—great censure. It has received a grave rebuke from the highest authority in the army. At the same time I beg the House to bear in mind that it does not follow because Sir William Mansfield is wrong that, therefore, Captain Jervis is right. I accept the responsibility for what has been done. Although this is the act of the Commander-in-Chief, as the head of the army, his Royal Highness has not taken this step without consulting the responsible Minister of the Crown. The Commander-in-Chief was most anxious to fulfil his duty with perfect impartiality and justice. But we had to consider what was the real position of the case as regarded Captain Jervis. I am sorry that this question has been raised, and that I am compelled, in the discharge of my duty, to hold any language which may now appear harsh towards Captain Jervis. But it was impossible to disregard the fact—which I ask the House of Commons to consider and not be carried away by prejudice or clamour—what is the usual practice of courts-martial in drawing up their decisions. I challenge any man who is the advocate of Captain Jervis to deny that the usual practice of courts-martial, especially in charges which at all affect the honour or character of the accused party, is, where they believe him to be wholly innocent of the charge, to declare him fully and honourably acquitted. I have read the terms of the finding in the case of Colonel Crawley. There was never a case in which a man had been subjected to more obloquy and clamour. Time passed, a deliberate trial took place, and the finding was a full and honourable acquittal. If 1030 Captain Jervis had been fully and honourably acquitted the decision at home must have been different. But in taking a fair, judicial view of this question, it is impossible to disregard the fact that a full and honourable acquittal was not contained in the finding. The omission was a remarkable one. Was it accidental, or was it deliberate? At any rate, in deciding the question, whether Captain Jervis ought to be reinstated we could not disregard that omission. Then, a fair element of consideration was the view taken of this case by a perfectly impartial person, the Judge-Advocate General. My right hon. and learned Friend had to report to the Commander-in-Chief upon the merits of this case. He is open to no suspicion of partiality or prejudice; but, after deliberately reviewing the evidence, he said he thought the evidence would have justified either an acquittal or a conviction; and that the court-martial having given a deliberate verdict in favour of the accused he was not prepared to say that that finding was wrong. This was not the language of a judicial officer who thought that Captain Jervis had been the victim of a most unjust and unfair charge. I think the noble Lord opposite (Lord William Hay) made a fair and just observation, free from harshness or prejudice, when he stated that the substance of this finding was what we are familiar with in Scotch law as a verdict of "Not Proven." Then, the House will remember that the subsequent conduct of Captain Jervis was not such as to give him any particular claim to the favourable consideration of the authorities, or to inspire them with any desire to reverse the judgment of an impartial tribunal. Thinking he had reason to complain of portions of the examination of the counsel of Sir William Mansfield, he proceeded to commit a violent assault upon that gentleman at the door of the Court, and assaulted three other witnesses on the trial, for which violent conduct he was brought before the Court, made a public apology, and was bound over to keep the peace. These facts did not bear on the material points at issue in the trial, but they did bear upon the question how far the authorities at home were called upon by the whole circumstances of the case to reverse the finding of the court-martial and restore Captain Jervis to his rank. The question was what force was to be given to the recommendation to mercy? It was the anxious desire of the Commander-in-Chief, and it 1031 was my own desire, that this recommendation should not be disregarded, There were only two ways of attending to it. One was by reinstating Captain Jervis; the other was to remove the stigma of his conviction by allowing him to sell his commission, as though in a purchase regiment. That appeared to the Commander-in-Chief and to myself the most effectual way of giving effect to the recommendation of the Court. This is the view taken by the military authorities in this country, and I earnestly hope that this House will not, by supporting the Motion, take a course which, in my opinion, will be inconsistent with justice, dangerous as a precedent, and inconsistent alike with the discipline and character of the service.
THE MARQUESS OF HARTINGTON
It is with great unwillingness that I trouble the House with a few words on this subject. I am unwilling to do so, because this is a most complicated and difficult question, and because I feel that I have not studied the voluminous Papers in this case so completely as to enable me to give an authoratitive opinion upon many of the points raised. Indeed, I would not have troubled the House at all, if it had not been for one or two observations made by speakers who have preceded me. I do not, like the right hon. and gallant Gentleman (General Peel), go the length of deprecating the interference of the House of Commons altogether in discussions of this nature. The right hon. Gentleman has, on many occasions, expressed his opinion that the interference of the House in almost all military subjects is a source of unmitigated evil. I believe there are many points of military administration in which this House may most usefully and beneficially interfere. But I agree with the right hon. Gentleman that this House ought to be extremely careful as to the occasions and the manner in which it interferes with military questions of a personal character. Still there are occasions even of a personal character in which it may property interfere. If there is a suspicion that personal favour has been shown to an officer, or that justice has not been done to his merits, the publicity given to such cases cannot but be beneficial. But we ought to be very careful when we undertake, in questions affecting military discipline, to review the decisions either of legally constituted tribunals or of officers who have the power to revise such decisions. There is one point to which I wish 1032 to refer. It may be said that the Motion of the hon. and learned Member for Helston is an invitation to us to revise the decision of a court-martial. To a certain extent that is true, as a court-martial did sentence Captain Jervis to be dismissed from the army. But the hon. and learned Member will probably reply that he is not so much inviting the House to revise the decision, as to attend to the recommendation to mercy given by the Court. Although, therefore, this Motion can hardly be taken as an invitation to revise the sentence of the court-martial, it is an invitation to an act which is almost if not equally delicate and dangerous—namely, to undertake the revision of judicial decisions come to by persons legally qualified to give them—the Commander-in-Chief in India and the Commander-in-Chief at home, backed up by the authority of the Secretary of State for War. No one can deny that the Commander-in-Chief in India legally had the power to confirm or revise the decision of the court-martial at Simla; no one can deny that he legally had the power either to act upon or to set aside the recommendation to mercy. Although I concur in many of the strictures passed this evening upon the want of judgment displayed by Sir William Mansfield, I must avow my firm opinion, so far as I have been able to form a judgment from reading the Papers, that Sir William Mansfield, was not actuated by personal motives of dislike to Captain Jervis, and that, although he may have been mistaken in his view, he did act upon the view he took of his public duty. I believe that the real state of the case as regards Sir William Mansfield is correctly stated in two paragraphs of his despatch, which are as follows:—It can hardly be said that the accident of grave offences of insubordination having been committed against the Commander-in-Chief in person is a reason for the latter to forget his duty of maintaining the discipline of the army according to law and usage, when the conduct of the accused person has compelled the Commander-in-Chief to the last resource of a public trial My view has been, on the contrary, that it was for the Commander-in-Chief to elevate himself above the whole matter, as if he were not a party concerned, and to treat it as it would have been treated in the case of any other superior officer who had been insulted and met with the grossest insubordination by one under his immediate command, it being recollected that the protection of his office on the part of the Commander-in-Chief is a positive obligation on him.No one can deny that the Commander-in-Chief was legally entitled to act or not to act 1033 upon the recommendation or the proceedings the court-martial. They were forwarded to England. They were revised by the right hon. Gentleman the Deputy Judge Advocate General, who, having perused the proceedings with as much care as any Gentleman in this House, did not think it necessary to recommend to Her Majesty that these proceedings should be reversed. The Duke of Cambridge, as admitted by all who have spoken, also studied them with care; and he did not think it necessary to act upon the recommendation to mercy. Although he did not shrink from the responsibility of severely censuring Sir William Mansfield for his conduct, he did not think that the sentence of the Court should be reversed, or that the recommendation to mercy should be attended to. Both these officers—Sir William Mansfield and the Duke of Cambridge—were the legally constituted officers on whom the duty devolved of considering whether the sentence of the court-martial should be acted on in its integrity or not. The House will take upon itself a very grave and serious responsibility if it undertakes to revise, not the sentence of the court-martial, but that of the legally constituted authorities whose duty it was to revise it. After what has been said on both sides of the House, I think it is tolerably clear no injustice has been done by removing Captain Jervis from the army. I cannot forget the fact, referred to by the Secretary of State for War, which I think is a material point in the case, that the Court arrived at a verdict of mere acquittal, and not, as the accused requested, at one of full and honourable acquittal. With that I couple the conclusion at which the Court arrived on the charges of insubordination, including that of refusal to appear before the Court for the purpose of clearing his own character. When I look at these circumstances I cannot bring myself to believe that any substantial injustice has been done by the removal of Captain Jervis from the army. Unless the House is fully convinced that an act of substantial and gross injustice has been done, it will be setting a bad example and establishing a mischievous precedent, if it undertakes to revise the decision not so much of the Simla court-martial, as of all those authorities whose duty it has been to revise and to act upon them.
said, he wished to ask those who deprecated the discussion in that House of the proceedings of the court-martial, why they had been laid on the 1034 table if they were not to be discussed. On the other hand, he admitted that the House of Commons was hardly a good tribunal to try again cases of this kind. Therefore, in suggesting an Amendment to the hon. and learned Member for Helston (Mr. Brett) he took what was the safe course of abiding by the decision of the court-martial? He was the more satisfied that this was a right and wise course, because that decision had been upheld by the Commander-in-Chief in a despatch which did him the greatest honour. Therefore he would suggest as an Amendment, that an Address should be presented to Her Majesty, praying that—She will be graciously pleased to give effect to the recommendation to mercy contained in the sentence of the court-martial held at Simla on Captain Jervis.That court-martial was one of the most impartial and painstaking of military tribunals that ever assembled. The omission of the words "full and honourable" before the word "acquittal" in the finding of the Court was capable of explanation. If he were well informed, it was so. There were many tribunals in which differences of opinion arose, and in considering such a difference of opinion, account must be taken of the circumstances under which it arose. Here the Commander-in-Chief had summoned officers, all subordinate to himself. It was quite possible, without for a moment imagining that they would act with the slightest partiality, that they might have been unable to come to an unanimous decision on some questions, and that they therefore agreed to a compromise. These matters were no longer secret. Indeed, the Commander-in-Chief in India referred to the opinions of individual officers. He had been told by the gentleman who was charged with the defence of Captain Jervis that the reason the words "full and honourable" were omitted, was that the Court determined they would give a recommendation to mercy. They decided on an acquittal accompanied by a recommendation to mercy, the effect of which they reasonably imagined would be the restoration of Captain Jervis to his place in the army. He had no hesitation in saying, on the authority of the same gentleman, that if this expectation had not been entertained, the words "full and honourable acquittal" would in all probability have been used. When the noble Lord (the Marquess of Hartington) said that substantial justice had been done, how did he measure the professional honour of an officer? At a sum of £1,800. This was 1035 not a question of degree of guilt. Captain Jervis must be innocent or not. If he took a pot of jam or a jar of pickles with intent to defraud, he was a thief, and no longer fit for the army. But if his doing so was merely part of a loose debtor and creditor account he was entitled to an acquittal. Captain Jervis was either innocent or guilty. He could not be partly both. The insubordination was induced by these disgraceful charges of which he had been acquitted. Captain Jervis had been dismissed from the army and disgraced. Was it probable for instance that he could be a member of any Club in London? Yet, being innocent, it was said that full and substantial justice was done by awarding him the sum of £1,800. And from what source? From the revenues of India! If a Sultan were to be entertained, or if an injustice to an officer of the army were to be redressed, the revenues of India were equally available. The right hon. Gentleman the Secretary of State for India (Sir Stafford Northcote) seemed to lend himself to these negotiations with a facility that was perfectly surprising. The right hon. Baronet received on the 7th of June from the Secretary of State for War a letter written in a very easy and pleasant style, enclosing the following communication from the Horse Guards "for the consideration of the Secretary of State for India in Council:"—I am directed by the Field Marshal Commanding-in-Chief to acquaint you, for the information of the Secretary of State, that his Royal Highness proposes to give effect to the sentence of dismissal passed on that officer by the general court-martial which sat on his trial at Simla last year. But with reference to the recommendation of the court in Captain Jervis's favour, and to the peculiar circumstances of the case, his Royal Highness desires me to suggest that a sum equivalent to the full value of his commission—namely, £1,800, may be granted him. On receiving your reply to this communication measures will be immediately taken for succeeding Captain Jervis in the 106th Regiment.In the same easy and pleasant style the Secretary of State for India returned an answer on the following day, the 8th of June. The right hon. Baronet was evidently in too great a hurry to consult his Council, as his reply was singularly short—In reply, I am directed to acquaint you that Sir Stafford Northcote concurs in the course proposed, and I am to request that Captain Jervis may be informed that the sum of £1,800 will be paid to him on application at this office.He was treated as if he were an officer 1036 who had purchased into a regiment of the British Army, whereas he was an officer in the Indian Army, in which purchase had never been permitted. This was the easy manner in which the India Office was always ready to give out of the revenues of India the hush-money recessary to keep unpleasant subjects quiet. But if Captain Jervis was, as Sir William Mansfield had once declared, a man of "scrupulous honour," no grant of money could compensate the injury he had sustained. He did not agree with the opinion of the right hon. and gallant Member for Huntingdon (General Peel) that the despatch of the Commander-in-Chief—which did His Royal Highness infinite credit—ought not to have been produced. A curious illustration of the harmony which the right hon. and gallant Gentleman assured the House existed between the Commander-in-Chief and the Secretary of State for War was furnished by the right hon. and gallant Gentlemen, when he accused the Secretary of State for War of having improperly published a dispatch of the Commander-in-Chief. There was no want of precedents to justify the House in coming to a decision respecting the sentence of a court-martial, and it was not for the first time that it was called upon to remedy an act of injustice that would otherwise pass unrevoked. He begged to move his Amendment.
Motion made, and Question put,
That an humble Address be presented to Her Majesty, praying that She will be graciously pleased to give effect to the recommendation to mercy contained in the sentence of the Court Martial held at Simla on Captain Jervis."—(Mr. Otway.)
§ SIR STAFFORD NORTHCOTE
said, that he rose to answer the most unfair and extraordinary quotation of documents he had ever heard in the House. He referred to that part of the subject in which he had a share. The hon. Gentleman who spoke last had said that the grant of £1,800 upon the revenues of India had been settled in a couple of short and agreeable letters between the Secretary for India and the Secretary for War—one written on the 7th and the other on the 8th of June; and that, consequently, it was quite impossible that the Council for India could have been consulted. This was the statement. What were the facts, as shown by the Correspondence to which the hon. Gentleman had referred? The Correspondence on the subject began, not on the 7th of June, but on the 13th of May, in a letter addressed by 1037 the Under Secretary of State for War to the Under Secretary for India. The gentleman by whom it was written, said:—I am directed by Secretary Sir John Pakington to transmit to you for the consideration of the Secretary of State for India in Council the accompanying copy of a letter which has been received by the Military Secretary to the Field Marshal Commanding-in-Chief from Captain S. Jervis, 106th Regiment. Sir John Pakington having been in communication with his Royal Highness on the subject of this application has arrived at the conclusion that, with a view to meet the case of Captain Jervis, it is desirable to make such arrangements in mitigation of the sentence on that officer, and in deference to the recommendation to mercy by the court-martial, as may be equivalent to permitting him to sell his commission as if he were an officer in one of the purchase regiments in the British Army. His Royal Highness has expressed his concurrence in this proposition, and I am to request that should Sir Stafford Northcote see no reason to dissent from it you will move him to cause the necessary arrangements to be made accordingly.On the 24th of May, eleven days after, having had ample time to bring the subject before the Council by whom it had been considered, he (Sir Stafford Northcote) sent, or rather General Pears sent, the following reply:—I am directed by the Secretary of State for India in Council to acknowledge the receipt of your letter of the 13th instant, forwarding a letter from Captain Jervis of the 106th Regiment, and suiting that Sir John Pakington having been in communication with His Royal Highness the Commander-in-Chief on the subject of that officer's application has arrived at the conclusion that, with a view to meet his case, it is desirable to make such arrangements in mitigation of his sentence, and in deference to the recommendation to mercy by the court-martial, as may be equivalent to permitting him to sell his commission, as if he were an officer in one of the purchase regiments in the British Army, and requesting that in the event of Sir Stafford Northcote concurring in this view, he will cause the necessary arrangements to be made accordingly. 2. In reply, I am desired to state that, as far as Sir Stafford Northcote has been made acquainted with the present position of Captain Jervis, that officer has been sentenced by court-martial in India to be dismissed the service, but with a recommendation to mercy, and that the sentence has been confirmed by the Commander-in-Chief in India, but that effect has not yet been given to the sentence in this country, either by its publication in the Gazette, or by the removal of Captain Jervis's name from the regiment in the official Army List. 3. Captain Jervis, although he retained, on transfer to the 106th Foot, a prospective claim to pension under India rules, is not yet entitled under those rules to any pension, having entered the army as recently as 1856, but I am desired to state that should the sentence of the court-martial be carried out, and this officer be removed from the service, the Secretary of State in Council will be prepared, on the recommendation of his Royal Highness the 1038 Commander-in-Chief and the Secretary of State for War, to grant him from Indian revenues a sum equivalent to the selling value of his commission.The letter he received on tho 7th of June referred to by the hon. Gentleman (Mr. Otway), simply acquainted him with the final decision which had been arrived at, and all that was then necessary to be done was to notify the fact that arrangements had been made to carry out what had been determined upon. The hon. Gentleman apparently felt himself justified in entirely ignoring the important communications of the 13th and the 24th of May, in which the question was dealt with at length, and in referring to the last two letters which had passed, as if those two letters comprised the whole of the correspondence, and this he did in addressing hon. Gentlemen who had not the Papers in their hands. If the hon. Gentleman regarded such conduct as fair and candid, all he could say was that his views on the subject of fairness and candour, and those entertained by the hon. Gentleman, differed very widely. The matter was duly brought under the consideration of the Council. In regard to the merits of the case, the Council for India looked at it in this light: if Captain Jervis had remained in the service he would upon the time arriving for his retirement have been entitled to a pension upon the revenues of India, and under the circumstances he was entitled to compensation. The amount of it might be a question for discussion. With regard to the mode in which the matter had been determined, as far as related to the Correspondence on the subject, he hoped the House saw that it was entirely different from that represented by the hon. Gentleman.
said, that every officer had a right to appeal to the Crown against the decisions of a court-martial. That right was not in any way affected in consequence of the court-martial having been, held in India instead of in this country. The conduct of the Commander-in-Chief in India had been blamed by the Commander-in-Chief in. England, and the former, in replying to the remarks made upon the course he had pursued, said—In your 33rd and 34th paragraphs you indicate that, as I was unable to concur with the Court and to act on their recommendation, I should have altogether refrained from dealing with the case, and that I should have forwarded the proceedings to England for submission to the Queen to be disposed of according to Her Ma- 1039 jesty's pleasure. It is further said that this course would have relieved me from all responsibility, and would have extricated me from a most anomalous and exceptional position. In answer, I have to submit, with great deference, that this course did not escape my consideration, but that I did not feel myself justified in evading my due responsibility according to my warrant and the position I hold as Commander-in-Chief in India.In this case, owing to the course adopted by the Commander-in-Chief in India, an opportunity was not afforded to the Crown to carry out the recommendation of the court-martial. And yet the officer by whom that letter was written had expressly declined to act upon the recommendation to mercy that was made by the court-martial, on the ground that such mercy belonged only to the Prerogative of the Queen. His conduct, therefore, plainly showed that he designedly confirmed the sentence of the court-martial, rather than he would submit it to a quarter where a clemency to which he was averse might have been exhibited. Hitherto, the case had not been submitted to the Crown, and all that was now asked of the House was that the privilege to which every British officer was entitled might be made available to Captain Jervis, and that the case should be submitted to the Crown for the exercise of clemency.
said, the House would readily believe that his predilections were in favour of upholding the properly constituted military authorities. There were, however, exceptional cases where injustice had been committed, and where interferences consequently was called for. For such interference they had a precedent in the case of Colonel Crawley. There was an appeal from the Judges of Assize to the Courts, and ultimately to the House of Lords. It was not unreasonable that in cases like that of Captain Jervis there should be an appeal to the House of Commons. The case was this—Captain Jervis was tried for fraud. The charge was preferred by the Commander-in-Chief. Captain Jervis was also charged with insubordination. The court-martial, consisting of officers equal to Sir William Mansfield in experience and judgment, acquitted Captain Jervis of fraud, and with respect to the other charge, recommended him to mercy in consequence of extenuating circumstances. What was now asked was that the recommendation should be carried into effect.
§ The House divided:—Ayes, 48; Noes, 66: Majority, 18.