HC Deb 27 May 1870 vol 201 cc1524-51

said, he rose to call the attention of the House to the Petition of Major Generals Miller, Nott, and Ludlow on behalf of the officers and men of the late Sir G. C. Whitlock's force, employed during the War in India in 1857–8, and to move an humble Address to Her Majesty that their claim to have Rs. 25,60,000 and other debts, due to the Kirwee Chiefs, treated as booty, may be fully inquired into, and referred for the decision of a legally constituted tribunal. He wished to treat the subject from the view of a civilian. He had no personal interest in it; nor did he happen to know any of the parties who would be benefited if the prayer of the Petition were complied with. When the Mutiny in India broke out every inducement was offered to our troops to use their utmost efforts to put down the rebellion. The Governor General, while endeavouring to guard against pillage, caused to be published proclamations in which the soldiers were informed that every proper provision would be made for distributing among them any booty to which they might become entitled. The case of a mutiny differed, of course, from that of a war as regarded prize as well as other matters; but the troops were informed that anything which might be taken from the rebels would follow the ordinary course of things as regarded prize and booty, except what had been taken by the rebels from loyal natives, and afterwards recaptured by soldiers of the Queen. For a long course of years the Court of Admiralty had exercised jurisdiction over Navy prizes, and in respect of operations in which the Army and Navy were combined, that Court decided as to what constituted booty and as to the manner in which it should be distributed. But up to the year 1839 the Treasury, with an appeal to the Privy Council, generally decided as to what should be considered booty for the Army when it carried on operations by itself, and as to the manner in which that booty should be distributed; thus naval prize money up to 1839 came solely under the decision of the Court of Admiralty, and army prize money up to that period was dealt with by the Treasury. But by an Act of the 3rd and 4th of Her Majesty, the power of dealing with questions of prize money for the Army was also transferred to the Court of Admiralty; and in 1864, during a discussion on the subject of the Banda and Kirwee prize money, that Act was especially brought under the notice of Parliament by Lord Palmerston. Lord Palmerston then expressed an opinion that all cases of disputed prize money should be determined by the High Court of Admiralty, and that opinion was supported in a work published as late as 1867 under the authority of the Indian Department. That was the footing upon which matters stood at the breaking out of the Indian Mutiny. It had been decided in the Deccan case that not only all property actually captured by the troops should be regarded as booty, but also that all monies that found their way into the hands of the East India Company in consequence of the war, should be equally booty. Three Orders had been issued by Lord Canning, in 1857 and 1858, taking a similar view of this question. At the period when General Whitlock's force was advancing on Central India the Kirwee Chiefs, who were in rebellion, held promissory notes of the East India Company to the value of about £250,000, which sum they had deposited in the hands of the Company, those notes being payable to order on demand. The advancing force having come in contact with a large body of rebels under the Nawab of Banda, a battle ensued, and the result was that the Nawab's army was defeated, and Banda taken possession of by the victors. Immediately after the engagement the Nawab went to Kirwee—a distance of 40 or 50 miles—to join the Chiefs there; and negotiations were opened, in which the Kirwee Chiefs, in the first instance, refused to submit. Ultimately the Kirwee Chiefs surrendered; but their troops retired to the hills, and General Whitlock took possession of the city, and afterwards defeated the troops. The treasure seized was very large, and included a number of jewels and some money; but these promissory notes were, it was believed, carrried off by one of the principal retainers, and afterwards destroyed. There was abundant evidence, however, to show that they should be treated as prize money—the number of the notes, the amount they represented, and the specific dates of each were set out in a Proclamation of Lord Canning some time before the capture of Kirwee. Those officers who were engaged in the affair had presented a Memorial to the Queen, praying that the notes might be dealt with, and treated as prize money, both under the general rule, and also under Lord Canning's Proclamation. The value of the booty seized was estimated at £700,000; but when the matter was remitted to the Admiralty Court the sum amounted to only £500,000, and the memorialists prayed that the value of the promissory notes should be added. The Treasury, in reply, offered to hear the parties by counsel, but limited them to one counsel, and the period to be within 10 days; and the memorialists expressed their satisfaction at what they then considered the great impartiality and condescension of the Lords of the Treasury. But that condescension was not continued, because on their making requests for information, including a request for a copy of the opinion of the Law Officers of the Crown on a precisely similar point their requests were not complied with.


said, probably the hon. Member was not aware that the document could not be found, and that it was so stated.


said, he thought the memorialists had acted indiscreetly in pressing the matter in the way they had; but the Lords of the Treasury should not have come to a decision on such slight considerations as they had, after hearing only one counsel. In the year 1860, when these claims of the troops were being urged, the question as to the amount held by the East India Company, and due from the Company on these promissory notes, was referred to several authorities in India, who were divided in opinion as to whether the troops were entitled to the amount or not. A dispute also went on for some years as to the jewels and cash actually seized, though eventually it was determined that they did belong to the soldiers. He mentioned these circumstances in order to show the great difficulties interposed to prevent the men from deriving advantage from the prize they had actually captured. There could be no doubt that the promissory notes were constructively among the property seized, and that they had been actually returned as such by the prize agents in their report to the Government. This either was booty or it was not, and the Army was entitled to be satisfied on such a point by the decision of a competent tribunal. The opinion of the Duke of "Wellington was that Orders in Council by the Governor General of India were binding upon the Government, and he maintained that after the Orders in Council at the end of 1857 and the commencement of 1858 the troops had a right to expect that this money would have become their prize, and it would have been so treated had the Company remained in power. He thought it exceedingly unwise that the Imperial Treasury should refuse the claim of the Army to have a decision on this subject—to have their rights fairly recognized and adjudicated upon by a legal tribunal. It was not competent for the House to decide the question at issue; but he thought that, Both upon general grounds and upon the special ground that the original Kirwee prize money fell short by the sum of £200,000 of the amount which appeared in the Order in Council, it was competent for the House to send an humble Address to the Crown, praying to have the matter submitted to a Court of judicature. The hon. Member concluded by moving the Address.


in seconding the Motion, said, he desired to express no opinion as to the legal right of the troops to this money, but simply to support their claim to a decision from a Court of Law. Soldiers, who were not as a rule lawyers, when they came to read this debate to-morrow, would say it was perfectly clear that they had a legal right to this money, for the Government would not otherwise have been afraid to refer the matter to legal decision. Now, upon these matters he had had some experience. He was the English Commissioner appointed to divide the spoil and plunder taken at the Summer Palace at Pekin, and in that capacity he had a quarrel with his French colleague, who told him that he was utterly ignorant of the noble art of looting, and was unaware of some obscure code of honour by which his decisions ought to be regulated. To this he expressed his regret, adding that that was only the third Imperial Palace at whose sacking he had assisted, but that he should, he hoped, be better instructed on the subject by the time he came to assist at the taking of the Tuileries. With an Army such as ours, from which we expected twice as much work as was expected from the army of any other nation, it was impossible to get on unless discipline and the power of the officers over their men were thoroughly preserved, and this necessity existed more especially in India, where our troops had to contend not only against overwhelming enemies but apathetic allies. Those who were acquainted with the history of the Indian War would acknowledge that the turning point in the mutiny was the storming of Delhi by two or three thousand of our troops. Those troops were almost lost in the vastness of the place, and if the soldiers had given way to straggling, or gratified their tendency to plunder, India would probably have been lost to us. But they were told that the plunder would be divided among them, and, placing implicit faith in their officers and in the Government, they resisted the temptation. Our Army was the only army in the world where there was any system of distribution of the prizes of war. He would give an illustration to show how it worked. When we were advancing on Pekin the English Army was on the right, and our allies, the French, upon the left. On arriving where we expected to find a very large force of the enemy our allies were no longer to be found, and it was not until early next morning that we discovered that, by some extraordinary mistake, they had marched straight across our rear, had gained the Summer Palace, and spent the night in plunder. Three days after the French Army, as an army, ceased to exist, there was neither regiments nor organization. But during the whole of that time the English Army were encamped in front of the gates of Pekin, and not a single man was found in the Summer Palace, and the consequence was the complete success of the operation. He mentioned that to show the difference of discipline, which arose altogether from the fact that in our Army the men knew that they would receive what they fairly gained in time of war, and that it would be distributed to them afterwards. It was the reverse in the French Army, and, therefore, the French soldiers took what they could get. If the Government were to arrogate to themselves the right of deciding upon these questions, they would very materially shake the confidence of the soldiers. It was of the utmost importance to the discipline of the English Army that the Government should consent to allow this question to be tried by a Court of Law, and not settle it themselves in an arbitrary manner.

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 the claim of Major Generals Miller, Nott, and Ludlow, on behalf of the officers and men of the late Sir G. C. Whitlock's force, employed during the War in India in 1857–58, to have Rs. 25,60,000, and other debts, due to the Kirwee Chiefs, treated as booty, may be fully in- quired into, and referred for the decision of a legally constituted tribunal,"—(Mr. Goldney,) instead thereof.


said, far be it from him to dispute the justice of the eulogy pronounced by the hon. and gallant Gentleman (Major Anson) on our troops in India, or to disparage the importance of the services they had rendered to their country in suppressing the Indian Mutiny. Those services were invaluable; he was sure they were appreciated highly by all, and not least by Her Majesty's Government; and he was certain that neither the Government nor any man in that House would grudge to those troops any booty, spoil, or remuneration to which they were entitled by the amplest construction it was possible to put on the rules of prize. It was satisfactory to know that a sum amounting to about £550,000 had already been distributed among those troops, and if they were entitled to that further sum by all means let them have it. But he thought he should be enabled to show to the House conclusive reasons why it was impossible for the Government to agree to the present Motion. The first reason he had to allege was, that that matter had been referred to a competent tribunal, with the consent of the claimants—indeed, at their desire—that they had been fully heard before that tribunal, and that that tribunal had decided. His hon. and learned Friend (Mr. Goldney) laboured under some misapprehension as to the law relating to the matter, and also as to the nature of the tribunal competent to deal with prize cases. There was no positive law whatever bearing on the subject. All booty belonged to the Crown, and it was at the absolute discretion of the Crown how it should be divided. The Courts of Law had more than once said that that question was not a legal one. He might refer to a case in Chancery, which was well known to his hon. and learned Friend—that of the Rajah of Coorg—in which this was said— Where the property of a captive Prince is taken by a hostile sovereign Power in war, no Court of Justice has jurisdiction over the transaction. And the great Deccan case, which his hon. and learned Friend cited as a great authority in his favour, was decided by the very same tribunal which his hon. and learned Friend now sought to de- preciate—namely, by the Treasury. The Treasury was, and always had been, recognized as the proper tribunal for advising Her Majesty in these matters; and his hon. and learned Friend would find, if he would turn to the report of the case of the Army of the Deccan, that on an application being made to the Privy Council to entertain it, the Privy Council refused to do so, on the ground that Her Majesty's Treasury was the proper Court for the determination of the question. Therefore, the only great case that had been decided at all on prize law was one that had been decided by the very tribunal which his hon. and learned Friend sought to depreciate. His hon. and learned Friend appeared to be under the further misapprehension that that jurisdiction of the Board of Treasury had now been transferred to a legal tribunal. That was not so. There had been no transference whatever. The Board of Treasury still retained the same functions which it had exercised before, and which it exercised in the great Deccan case, and exercised, as far as he could understand, to the satisfaction of his hon. and learned Friend. The 3 & 4 Vict. c. 66 said no more than this—that if Her Majesty thought fit, by Order in Council, she might send a case for consideration before the Court of Admiralty; but the jurisdiction of the Treasury, which existed and was exercised before, still remained, and it was a question for the discretion of Her Majesty whether she should go out of her way by Order in Council to transfer a case of that kind for consideration to the Court of Admiralty. Therefore, he said that matter had been heard by a competent tribunal. He said farther that it had been heard with the consent, he might almost say at the request, and with the full concurrence of the claimants; and he said, also, that it had been fully and completely heard. He confessed he was somewhat surprised to hear his hon. and learned Friend, in a rather sneering manner, say the case had been argued by only one counsel, especially, too, as it had been argued most fully and most elaborately by his hon. and learned Friend the Member for Oxford (Mr. Vernon Harcourt), than whom no man was more competent to do so, and who urged everything that he could urge on behalf of the claimants. He was the more surprised to hear that ob- jection from a lawyer, seeing that in almost every special case, in arguments on demurrers, arguments in Courts of Error, involving questions of the highest importance, one counsel and one only was heard. Therefore, in hearing one counsel the tribunal of the Treasury adopted the course often followed by Courts of Law in cases of the utmost importance. He himself had appeared on behalf of the East Indian Government, and he would ask why were the parties who had submitted their case to a competent tribunal not to be bound by its decision? If the decision had gone against himself, arguing the question on behalf of the East Indian Government, and he had disputed the competence of the tribunal, would it not have been said he was acting most unfairly? Even if the case had been referred to arbitration, by the consent of both parties, surely both parties would have been bound to accept the award of the arbitrator. It would not be competent for the House to deal with a complicated case; but this was a simple one and involved no difficulty. The claim on behalf of troops as against the Crown was made in respect of certain promisory notes of the Indian Government, which it was alleged were captured at Kirwee—in other words, it was alleged that the Crown by its troops captured a debt due from itself, and the claim set up was that it should distribute that debt due from itself among the troops. The statement of the case disposed of it, and no prize court ever entertained so absurd a claim. But the promissory notes were never captured at all, for they were never found—a fact which had been conveniently ignored; and it was consistent with what took place that they had been destroyed or transferred by the Rao before the troops took Kirwee. Assuming that the notes had been captured, they were only a written acknowledgment on the part of the East India Company—which soon afterwards became the Crown, of so much owing to the Rao; but there was no such debt due, because six months previously, payment of the notes had been stopped, on the ground that the Rao was in open rebellion; and a man could not invoke the laws he was in rebellion against. It could not be said that the Crown could have made a claim against the Company, because there was no claim against the Company; and it was a conclusive answer to the claim against the Crown that, at the time of the alleged capture the Rao was in open rebellion. If the Rao had no claim how could anyone else have one? The precedents which his hon. and learned Friend had relied upon did not apply. In the Deccan case, the Company had in their hands money belonging to the Peishwa, and the Crown treated them as agents holding this property for him. Further, the Peishwa was an enemy, while the Rao was a rebel; and, therefore, different considerations applied to the two cases. If the Treasury had decided that a debt due from the Sovereign of a conquering army could be treated as a prize and could be captured, that decision was wrong, and the same tribunal was justified in reversing it. It was not as if the Treasury were bound by a long series of precedents; indeed, there were scarcely any; and if the Crown had been wrongly advised 30 years ago, that was no reason why it should be wrongly advised again. He trusted there would be no misunderstanding as to the Government wishing to treat the Army with liberality. The troops had a large amount of booty; all that by the widest latitude could be described as such the Government willingly gave them; but their further claims were referred to the Treasury, without the expression of any desire to carry the matter to the Court of Admiralty, and the Treasury had decided that there was really no pretence for treating these notes as booty. In this ease the debt, being due from the Sovereign of the capturing army, was extinguished by the rebellion, and upon these two grounds the case was clearly distinguishable from other cases in which the doctrine of constructive capture had been carried to great lengths.


Sir, I shall be glad to make a few observations on the subject under discussion. My hon. Friend the Member for Chippenham (Mr. Goldney) has fully stated the legal bearings of the case. I confess that I do not feel myself competent to deal with the legal subtleties involved in this matter. I am no lawyer, and I think I shall do well to follow the example of the hon. and gallant Member for Bewdley (Major Anson), and view the matter as it will be reviewed by the soldiers whom it concerns. The hon. and learned Gentleman the Attorney General has just said that perhaps unlearned Members were not aware that in a case of this sort it was not usual for more than one counsel learned in the law to plead. Well, we have heard from him one side of the ease most ably argued; and, probably, the fact that one counsel is sufficient may account for the absence of the Solicitor General. But the absence of the Solicitor General may, perhaps, also be accounted for by the fact that he does not agree with the Attorney General in the views which he has now thought fit to submit to Parliament. I am justified in that presumption by the following opinion, which I find in the Papers presented to Parliament, and which I now hold in my hand:— Opinion of Counsel on the question of the Government Loan Bonds belonging to the Chiefs of Kirwee, submitted to the consideration of Counsel by the Special Prize Committee, September, 1868:—

  1. "1. Booty of war, in the sense of army prize, being a question of the bounty of the Crown, and not of strict right, is not susceptible of accurate legal definition. We are of opinion, however, that the notes in question are such property as has been distributed in other instances amongst a successful army by the Crown, and in such a matter precedent is usually and properly followed.
  2. "2. We see no reason why in such a question any distinction should be made between the case of the insurgent forces in India and a foreign enemy.
  3. "3. Having regard to the precedents, we are of opinion that the present case affords good ground for presenting a memorial to the Crown for the grant of the value of the notes in question to be distributed on the footing of booty.
  4. "Until a memorial has been presented, and has been dealt with by the Crown officers, we do not see any point upon which we can usefully advise further.
(Signed) J. D. COLERIDGE. W. V. HARCOURT. HARRIS PRENDERGAST. J. F. STEPHEN. FREDERICK RAMADGE. I believe the name of J. D. Coleridge here mentioned is the Solicitor General, at present absent from the House. Now, when I find such a divergence of opinion even among the Law Officers of the Crown—when a question is so difficult that two gentlemen so eminent in their profession cannot agree upon it; how much more difficult must it be for those whom it affects, the officers and soldiers of our Army, to understand a decision which may deprive them of their rights. I express no opinion as to the proprietary rights of anyone in the booty under discussion; but I think the Treasury should refer the question to the decision of the High Court of Admiralty, as is demanded by the soldiers of the Army who are claimants, and as is provided by law. The Attorney General has said that the notes in question do not exist; that, in fact, there is nothing to distribute. Well, if that be so, the High Court of Admiralty will decide that as there is nothing to distribute they cannot divide it. I suppose, however, that these notes are, or were, the representatives of some value; and I gathered from the Attorney General that they did, in fact, represent value of moneys appertaining to the Peishwa or his representatives, but that the value they represented had escheated to the Crown, by reason of the treason or rebellion of these Princes. It then, no doubt, becomes a question whether the property so escheated had fallen to the Crown before or after the occurrences which gave the troops a claim for prize. But what, above all, presses upon me the necessity for a reference of the matter to the High Court of Admiralty is this—the High Court of Admiralty is pointed out to the Army of India by the Queen's Regulations as the final Court of Appeal in matters of prize. It will be unfair to the Army to issue these Regulations, and not to abide by them. The following is the article in the Regulation to which I refer— The final jurisdiction in all disputed cases of prize money now rests with the High Court of Admiralty, under the Act 3 & 4 Vict., c. 65, s. 2."—[See Cochrane's Regulations, p. 608.]


That is not true.


That is not a very courteous remark on the part of the right hon. Gentleman.


I say it is a mis-statement made in the Regulations.


The Chancellor of the Exchequer says that the Regulations of the Army of India are not true, as if they did not exist.


I beg the hon. and gallant Gentleman's pardon. I did not say that. I said that the statement contained in these Regulations is not true, because it contradicts an Act of Parliament.


I am sorry, then, to find that the Secretary of State for India has given his sanction to Regulations which, according to the Chancellor of the Exchequer, are contrary to an Act of Parliament. How, I ask, are soldiers to know whether these Regulations, to disobey which would be death in some cases, contradicted an Act of Parliament? The Chancellor of the Exchequer is conceived by the Indian Army to have robbed those soldiers of money to which they believed they were entitled, and he now comes down to the House and tells us that these Regulations are not true. I am sorry to find that the Secretary for War is not here, for there can be no excuse for withholding this case from the High Court of Admiralty, particularly as the Solicitor General has given an opinion that he saw no reason why there should be any distinction made between the insurgent forces in India and a foreign enemy.


The hon. and gallant Gentleman is attributing all sorts of motives to me. This is the property of the Indian Government, and not that of the Treasury, which has no more interest in it than the hon. and gallant Gentleman himself.


Then let the case be referred to the High Court of Admiralty, which is an impartial tribunal. At this moment the Treasury is not impartial. I again repeat the observation. That remark appears to irritate the Chancellor of the Exchequer. The right hon. Gentleman and the Government are doing that which will sow distrust and want of confidence between the Army and the Crown, by not keeping faith with the soldiers who have served the Crown. It is my duty to appeal to the Government to refer this question to the High Court of Admiralty, whose business it is to decide it.


said, there could be no doubt that at the present moment the feeling of the House was that the decision of the Treasury would not be satisfactory to the Army. As representatives of the nation, the Members of that House were called upon to convince the Army that they were desirous of doing them justice. They did not complain of the Chancellor of the Exchequer defending that which he considered right; but the Army of India believed that this money belonged to them, and the question should be decided by a competent legal tribunal.


Sir, I should be glad to support any Motion in favour of rewards to troops who acted so nobly and suffered so much as those that suppressed the Indian Mutiny. At the same time, I must own I see very grave objections to the Motion of the hon. Member for Chippenham (Mr. Goldney) both as regards the claim that the Kirwee promissory notes should be regarded as prize money, and also that such claim should be referred to the Court of Admiralty, or to any Law Court whatever, for decision. First, as regards the claim itself. Kirwee, a small town in the Allahabad division of the North-West Provinces, was the Jágír or barony of Amrit Rao, a Maratha Prince, who joined the British troops under Arthur Wellesley in the war against the Peshwá Bájí Rao. He gave up his claims to be Peshwa on our granting him an allowance of £80,000 a year. His son, Vinaek Eao, died at Kirwee in 1853, leaving an adopted son named Mahdu Rao, a boy about seven years old. He had formerly adopted another boy named Narayan Rao; but had disinherited and imprisoned him. We have, therefore, to do only with Mahdu Rao. This boy was about 11 years old in 1857, when the Mutiny commenced. He was under the guardianship of one Radha Govind, whose conduct was such that the Governor General, in The Calcutta Gazette of the 9th of January, 1858, declared the Kirwee Chiefs to be rebels. The boy Mahdu Rao, amongst other property, had inherited Government promissory notes to the value of £250,000. On the 7th of January, 1858, these notes were stopped by the Government of India, and all persons were warned in The Calcutta Gazette against receiving them. The Advocate General states at page 45 of the Papers of 1869, they were confiscated; and, as Lord Canning says he concurs with this officer, we must conclude that in his view the notes really were confiscated. They became State property, and as such were specially; exempted by Lord Canning's Proclamation of November, 1857, from being dealt with as prize. On the 4th of June, 1858, five months after the notes were confiscated, General Whitlock having inarched on Kirwee, Radha Govind, Mahdu Rao's guardian, who was the real rebel, decamped to the hills. Mahdu Rao and Narayan Rao at once gave themselves up, or rather sought protection in the British camp, for they were probably in great danger themselves from the numbers of our mutinous sepoys, who had made Kirwee a rendezvous. There was no fighting, or the slightest attempt at defending Kirwee. Mr. Mayne, the Collector of Banda, took peaceable possession of the palace, and was there for two days before General Whitlock discovered that the mistake of civil occupation might deprive him of prize money. In September, 1858, the boy Mahdu Rao was tried by Mr. Mayne under the Mutiny Acts of 1857, and was found guilty of treason, but, "with no fixed criminal intent!" whatever that may mean, and was sentenced to have all his property confiscated. Our Advocate General declared the sentence "irregular and unwarranted;" but saw no reason why we should not so far act on it as to strip this child, the adopted grandson of our ally, of all he had. This was done, £500,000 was realized, and even the drummer - boys of General Whitlock's force were rewarded for their services in marching from Banda to Kirwee, 35 miles, in very hot weather, with about £30 each. But the troops, or rather the prize agents, were not satisfied, and claimed the promissory notes, which it appears, from the Papers, they did not capture, for they were carried off by Radha to the hills and there lost, and which, if they had captured, could not, the lawyers say, have been regarded as prize money, unless transferable to bearer, and as they have been lost, none can say whether they were so transferable or not. But even if they had been captured and found to be transferable to bearer, they had been, as I have said, specially declared not to be prize by the Government—that is, by the Crown. This decision was affirmed by the Law Adviser of the Indian Government to be correct, and has been re-affirmed by the Lords of the Treasury in this country. Sir, I do not go into the precedents which have been adduced by the claimants, such as the Dakhan tribute, and the Coorg promissory notes. They are wholly irrelevant, because they are all wanting in the special feature that marks this particular case—namely, that the Government had declared the Kirwee notes to be State property, and had spe- cially exempted State property from being prize. With respect to that part of the Motion which would refer this claim to the Court of Admiralty, I object to it most strongly. That Court might, indeed, decide who should share in what the Crown of its bounty assigns as prize; but, in my humble opinion, to give up the Prerogative of the Crown to a Law Court, by allowing that Court to pronounce what is prize and what is not, is to be deprecated in the strongest possible manner. On one account I am glad that this Motion has been made, and that is because I think it is high time that Government should declare, in the most positive terms, that all such property as is not actually recovered by the troops at the point of the bayonet, all debts and papers and property not in the hands of the enemy, shall henceforth be reserved by Government to meet the expenses of the war, and to enable it to discharge the numerous just claims which are always made upon it in consequence of war. As for these notes, an hon. Member has asked what has become of them, or, as they have been lost, of their money value. I will tell him what has become of them. They have been very properly applied by Government to make a provision for Mahdu Rao, when he comes of age, and I hope that that arrangement will not be disturbed. In the case of Dhalíp Singh, and others, their private property had not been taken from them. But suppose the money had been appropriated by Government, or given to the troops, I ask the House to consider what would have been the effect on our credit in India? Would any Native invest money in our loans, if he found it was liable to seizure on the imputation of treason or disaffection? I will read to the House what a great authority—Vattel—says on the subject of the immunity from seizure of money similar to these notes— Everything that belongs to the nation is subject to reprisals whenever it can be seized, provided it be not a deposit entrusted to the public faith. As it is only in consequence of that confidence, which the proprietor has placed in our good faith, that we happen to have such deposit in our hands, it ought to be respected even in case of open war. Such is the conduct observed in France, England, and elsewhere. And again— The State does not so much as touch the sums which it owes to the enemy. Money lent to the public is everywhere exempt from confiscation and seizure in war. If the Army were to be allowed to consider all property to be prize, the effect would be general discontent, while the Government would be deprived of the means to meet its own expenses. He thought it would be exceedingly impolitic to agree to the proposition before the House.


said, in answer to the arguments advanced by the Attorney General, he must deny that the decision of the Treasury could in any respect be regarded as that of a Court of Law.


said, that some years ago he moved an humble Address to Her Majesty for the appointment of a Commission to inquire into the subject of the distribution of prize money generally throughout the Army. Lord Palmerston, who was at that time Prime Minister, said the subject was a proper one for inquiry; a Royal Commission was appointed, and it reported that in disputed cases the Act of 3 and 4 Vict. should be put in force. In 1864 the Lords of the Treasury issued a Minute, in which they expressed their concurrence in that recommendation. The present Prime Minister was at that time Chancellor of the Exchequer. He regretted the absence of the Solicitor General on the present occasion, because on two occasions the hon. and learned Gentleman gave an opinion in favour of the claim now under consideration. He must observe that since he first entered the House he had never heard a declaration that astonished him more than the one made this evening by the Chancellor of the Exchequer. The right hon. Gentleman said that a statement contained in the Regulations for the Army was not true, because it was in contradiction of an Act of Parliament. The question before the House was not merely whether a sum of £250,000 should be paid or not; it was also whether the confidence which the soldiers had hitherto reposed in their officers and in the Government with respect to prize money should be shaken. The soldiers believed that the money now claimed would be paid out of the Treasury, if paid at all, and, therefore, they would not be satisfied if the matter were not referred to some disinterested tribunal.


said, that the Attorney General and the hon. and learned Member for Penryn (Mr. Eastwick) had argued the question on different premises. The Attorney General said that the property of the Chiefs had been confiscated for rebellion, and therefore the Army had no claim to it. The hon. and learned Gentleman (Mr. Eastwick) said it belonged to a minor, that it had not been confiscated, and that, therefore, it could not be given to the Army. The Attorney General was employed against the soldiers by the East India Company, and, no doubt, then, as now, he spoke from his brief; but the difference of opinion between learned Gentlemen in that House showed the necessity for an inquiry before a competent tribunal. He trusted that the House would accede to the Motion of the hon. Member (Mr. Goldney), and then the soldiers would feel that every class of Her Majesty's subjects could obtain justice from that House.


said that no proof had been adduced in support of the claim that had been put forward on behalf of the soldiers engaged in the capture of Banda and Kirwee, neither was there any proof of the existence of the notes in question. They had already received £550,000 from the booty taken during the expedition. He could not tell why soldiers who were paid for their services by the nation should have any claim to booty at all, and he believed that the hope of booty was calculated to demoralize them. Under these circumstances he hoped the House would not accede to the Motion.


said, that the hon. Member who had just sat down appeared to think that soldiers had neither feeling nor sense, or anything, but that they were to be put up to be shot at by the enemy. Soldiers, however, had as much feeling as other persons. The soldier was told that he was neither to loot, plunder, nor destroy, but that if he did his duty honestly and well he would receive his reward in the shape of his share of the booty captured; and the House ought, in the interest of the country, to take care that this promise to the soldier was faithfully kept. The hon. Member who spoke last had said that it was not known that the notes had ever existed; but they had been returned as prize by the prize agents themselves. An opinion to the effect that the soldiers were entitled to the value of the notes had been signed by Sir John Duke Coleridge, Mr. Harcourt, Mr. Prendergast, Mr. Stephen, and Mr. Ramadge. The right hon. Gentleman the Chancellor of the Exchequer had had a great deal to do with this matter. On the 10th of May, 1869, when the matter had been brought before him in the Treasury Chambers, the right hon Gentleman had observed in reference to the decision in the case of the Deccan prize money, that the force of absurdity could no further go, to which Mr. Harcourt replied that he should not have ventured to apply such an expression to a decision arrived at by Lord Liverpool and his Colleagues, under the advice of the Duke of Wellington and Lord Lynd-hurst. In his opinion, the right hon. Gentleman would do well, after having heard the almost unanimous opinion of the House upon the question, to yield in the matter, and thereby place himself in a much better position with respect to it than he occupied at present. It was unjust and ungenerous to delay the further distribution of the prize. It would be detrimental to the Army and its interests, and he hoped the House would affirm the Resolution.


said, that if this claim had been put forward on behalf of the troops who had been engaged in the sieges of Delhi or of Lucknow, he should have been the last to oppose it. The 7,000 troops in question had, however, taken Banda and Kirwee after a very slight engagement, and they had already received £50 per man, which he regarded as ample reward for the services which they had rendered. It was a question of the munificence and bounty of the Crown—whether, in fact, the army engaged at Kirwee had been fully recompensed by the gift of the whole of the moveable property which had fallen into their hands, for it must be remembered that the notes had never been found to this day. Nobody would fail to admit that the men engaged had been extremely fortunate, and everyone who had at heart the financial position of India should feel thankful to the Government for declining to accede to an unreasonable demand.


said, he remarked with surprise that the Chancellor of the Exchequer declared the Queen's Regulations to be null and void, and contrary to law.


said, he had made no such statement.


said, he would appeal to hon. Members opposite as to whether the right hon. Gentleman had not declared the Regulations null and void, and expressed the opinion that the House should adhere to the precedent already laid down, and maintain the Act of 3 & 4 Vict., by sending this case to the proper Court, so that the whole facts might be clearly ascertained for the satisfaction of the Army and the country.


said, that the point under discussion should not be dismissed on military, Indian, nor legal grounds, but should be dealt with on the simple issue whether the Treasury had gone beyond the strict line of its duty. He thought it had, and that the matter should be referred to the Court of Admiralty.


said, he feared that hon. Members might have become somewhat confused in considering how far the questions at issue were questions of law, policy, or fact. He was quite sure his hon. and gallant Friend (Sir John Hay) had no intention to mislead in his reading of the Regulations he had quoted, and yet he feared the impression produced differed from that which the facts would support. The hon. and gallant Member had read extracts from the Regulations, not the Official Regulations of the Army, but from a copy published by the authority of the Secretary of State for India, and the words used were that "the final jurisdiction in all disputed cases of prize money now rests with the High Court of Admiralty." Not only when his hon. and gallant Friend read, that passage, but upon other occasions when hon. Members referred to the jurisdiction conferred by the statute on the Court, the impression produced was that the Act conferred a positive jurisdiction on the Court of Admiralty to decide questions of booty and of prizes. That impression was incorrect, for the 22nd section of the Act said— The High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning booty of war or the distribution thereof which it shall please Her Majesty, her heirs, and successors, by the advice of Her and their Privy Council, to refer to the judgment of the said Court. The House would see, therefore, that the Court only had jurisdiction on the motion of the Crown by an Order in Council, and that its jurisdiction would be confined by the terms of that Order and the questions thereby referred to it. He would now allude to the Regulation read by his hon. and gallant Friend, who would, no doubt, acknowledge that a few words extracted, from a document could not be accurately interpreted without reference to the context. Now, the only words cited by the hon. and gallant Baronet were to the following effect:— The final jurisdiction in all disputed cases of prize money now rests with the High Court of Admiralty under the Act 3 & 4 Vict. c. 65 s. 2. If, however, the context were before the House, he believed it would be found that the disputed cases referred to were disputed cases of distribution. As many hon. Members were aware, the vast majority of the cases referred to Courts of Law were not questions of what was booty and what was not booty, which was a matter for the decision of the Crown and its Advisers. The question usually referred to a Court of Law was—given a certain amount of booty, how should it be distributed among certain troops?


said, that the Court might decide what was booty.


said, the Court, no doubt, had jurisdiction as regards booty as well as regards distribution, if the subject were referred to it by an Order in Council. His hon. and gallant Friend had quoted three lines from one of the Regulations; but he maintained that it was unfair to judge of the effect of the whole document from so short an extract.


said, the book was in the Library.


said, he had no doubt it was, and he felt assured that his hon. and gallant Friend, familiar as he was with the accuracy with which Regulations of this kind were drawn up, would admit it was highly improbable that any Regulations had been issued which were inconsistent with the terms of the statute or of the law. Some hon. Members had referred to a legal opinion, signed by the Solicitor General and other counsel. Now, that opinion was a very guarded one, and one must know that the opinion of a counsel called in to advise a client on his own statement of his case could not be regarded as having the weight of a judicial decision. On the case submitted, to them the counsel for the claimants began by saying— Booty of war in the sense of army prize, being a question of the bounty of the Crown, and not of strict right, is not susceptible of accurate legal definition. How, then, could it be obligatory on Her Majesty and her Advisers to submit the question to a Court of Law? The learned counsel went on as follows:— We are of opinion, however, that the notes in question are such property as has been distributed in other instances amongst a successful army by the Crown. It would be observed that the counsel for the claimants recorded their opinion on a question of fact and not of law. Without for a moment referring to the question whether the notes were actually captured or not—for the opinion in no way bore on the question of actual or constructive capture—all they ventured to say was, that notes of that description had been allowed to be distributed as booty among troops. And what was the advice of the learned counsel? As the postscript of a letter often contained its pith, so the practical advice tendered by counsel was the most important part of their opinion. In the present instance they did not venture to assert that the claimants had a right which the Crown could not refuse to recognize, but they said— Having regard to the precedents, we are of opinion that the present case affords good grounds for presenting a memorial to the Crown. The whole extent of that opinion, then, was, that counsel very fairly advised the claimants to try the effect of a memorial. So that even if the opinion could be held to be binding on the House, and, of course, no opinion of any counsel who was instructed to advise one of the parties could be binding, it went no further than to say that the case was one which might fairly be submitted to the judgment and the generosity of the Crown. His hon. and learned Friend who brought this question forward (Mr. Goldney) was under a mistaken impression as to the proceedings of the Treasury. The function of that Department was not to sit in judgment as a legal tribunal, but to advise the Crown how to act in this matter of discretion. Counsel were heard on both sides. His hon. Friend had said the Treasury refused to furnish copies of the opinions given by the Law Officers of the Crown in 1825, and of other documents. The fact was, however, that the parties only wanted these documents if time and opportunity allowed of their production; and it hap- pened that time and opportunity did not allow of it. The case was most fully argued on behalf of the claimants. He must endorse the opinion of the Attorney General that they were most efficiently represented. The hon. and gallant Gentleman who seconded the Motion (Major Anson) had alluded to the great exertions, risks, and sacrifices of the troops; and, insisting on the importance of maintaining discipline, he had urged the Government to take a liberal and generous view of the matter, because, he said, it was of vital importance that our soldiers engaged in foreign wars should not search for booty themselves, but should have a well-founded confidence that whatever booty was taken would be fairly distributed among them. But in the present instance no question of fair distribution was raised. If it had been, it would, of course, have been referred to the consideration of a Court of Law. The question here raised was—"What is booty?" His hon. and gallant Friend's argument about the danger of our troops indulging in looting was really in favour of the policy upheld by the Government—namely, that we ought to keep as near as possible to the doctrine of actual capture. In the Deccan case which had been quoted against the Treasury it was laid down that, although in some cases constructive capture was allowed, yet that doctrine ought not to be enlarged. The question now at issue was, he maintained, not a legal one, but one of justice and good faith. If the soldiers had not had ideas on this subject instilled into their minds by persons who were more lawyers than soldiers, it would never have occurred to them that they were entitled to the money value of promissory notes which had never been found. There were only two legal points in this matter, and they wore quite simple. The first was that, save under Lord Canning's Proclamation, there could be no right to prize money, because the law did not recognize any such right in the case of civil war—an assertion in which every lawyer in the House would support him. The claim must rest upon a fair interpretation of that Proclamation, the terms of which were that all movable property belonging to the rebels that was ordinarily distributable and was captured by the troops should be held to be prize. Could anyone say that promissory notes, of which the soldiers never dreamt, were property within the meaning of that Proclamation? It was impossible to raise upon that Proclamation any question which Her Majesty's Advisers were bound to refer to a legal tribunal; but even if the Government agreed to refer the subject to such a tribunal, would his hon. and learned Friend say what question should be submitted? No legal question could be defined. It was impossible that his hon. and learned Friend could submit to the Government and the House any question which could be submitted to a legal tribunal, for, in addition to whatever he might suggest, it would still remain for the Government to advise the Crown with respect to the exercise of its prerogative, and its generosity in dealing with this question of bounty.


said, he understood that, in 1868, when the idea of making this claim first arose, the opinion of the Solicitor General was obtained, and he advised that there was a ease on which to memorialize the Treasury. An application was thereupon made to the Treasury, and the case was heard, counsel appearing on both sides, nor could he find in the correspondence any request that the matter should be referred to the Court of Admiralty; on the contrary, the memorialists expressed their thankfulness at the Treasury having undertaken to hear their case. Much had been said about the Treasury in the course of this debate; but it should be recollected that it was not this country but the people of India who were interested—a material point which had not been kept in view. The Treasury could, to say the least, act impartially between the Army and the people of India, who would have had to pay, had the decision been in favour of the soldiers; nor had he heard a word in this debate to show why there should be any appeal from the tribunal which had already given a decision on the subject to that Court to which it was equally open to the memorialists to have applied in the first instance. The parties had sought the decision of a tribunal whose offer they accepted with thanks, and they ought now to be bound by the result.


said, he should not have taken any part in this discussion had not some observations been made respecting his absence from the House during the debate. He only desired to say now, that having been counsel for those on whose behalf an application was now made to the House, he thought it would be only becoming in him to abstain from taking any part in this discussion; and he preferred to absent himself from the House in order that he might not be appealed to and forced into taking part in a debate on a matter in which he had been engaged as adviser before he held his present Office. His opinion had been read to the House, and by that opinion he was still bound. He believed there was a case for the consideration of the Treasury, and he advised that a memorial should be presented; but he gave no opinion whatever as to what was likely to be the result of the application. He hoped the House would, not think he was acting unbecomingly, either as a Law Officer of the Crown, or as former adviser to the claimants, if he stood by that opinion, and refused either to advance or to recede.


After having been so much called upon in this debate, it is hardly possible for me to avoid saying a few words. I will just state what I understand to be the question before the House, and how matters now stand. Her Majesty's troops took Kirwee, and they were entitled to receive, and did receive under a judgment by Dr. Lushington, a very large share of the booty which they took there. Their advisers and friends then raised a further claim—that in addition to booty valued at £500,000, they were entitled to the proceeds of certain promissory notes worth £250,000 more. Those promissory notes were not taken in Kirwee, but are supposed to have been lost or destroyed; at all events, they are not forthcoming, and could any one claim upon them except he was able to present them? They claim to be constituted the creditors of Her Majesty for the value of those promissory notes in addition to the £500,000 they have already received from the bounty of Her Majesty as prize money, and their claim is upon the Indian revenues for £250,000. There is a proper and constitutional tribunal for giving an opinion on the subject of that claim, and for advising Her Majesty whether she shall extend her Royal bounty beyond the amount already given. That tribunal is the Treasury Board, and no other body whatever. That is absolutely beyond dispute, and there is a precedent for it in the case of the Deccan prize money, which was heard and decided by Lord Liverpool and the Lords of the Treasury. That case has been cited against us by those who wish to deny our authority; but, under the circumstances, what were the Treasury to do in this case? They had the power, if they so chose, to advise Her Majesty to issue an Order in Council referring this matter to the Court of Admiralty, and such a course was adopted by Lord Palmerston's Government in the case of the £500,000 already distributed among those troops; but that led to immense expense and litigation, and to the great delay which has been complained of by almost every speaker who has blamed the Treasury Board for their conduct. No doubt that delay is a matter very much to be lamented; for, as has been said, many times soldiers die, and they lose the reward to which they are justly entitled. The Treasury felt that this was not like the question which was referred to Dr. Lushington, that being a complicated and difficult matter, and one which involved disputes as to issues of fact as well as raising points of law. In this matter, there was one simple question with which the Treasury believed themselves perfectly able to deal, considering the assistance they would receive from the learned counsel who would be engaged in the case; and, therefore, out of kindness to the claimants, and for no other reason, the Treasury took upon themselves the heavy responsibility of exercising their jurisdiction instead of pushing it off upon the Court of Admiralty; for the effect of the latter course would inevitably have been to put the parties to an enormous expense, and to cause them to suffer endless delay before a decision was given. The decision of the Court would have been subject to an appeal to the Privy Council. To save the soldiers this, to give a speedy decision, and in the confidence—though that may have been misplaced—that we should be able to do justice in this matter, the Board of the Treasury undertook to discharge this duty, and their offer, as has been already stated, was received with gratitude. Not a word of objection to their undertaking the duty was ever stated; the two litigant parties, the Indian Government and the representatives of the troops, appeared by very able counsel and were heard. All sorts of imputations have been cast on the Board of the Treasury, but we were absolutely impartial; it mattered not to us whether this money was given to the troops or to the Indian Revenue. All we wished was that justice should be done between them, and that it should be done cheaply and speedily. My right hon. Friend the First Minister of the Crown presided on that occasion, and the other Lords of the Treasury, myself included, were present. We heard and considered the matter without the slightest bias or feeling, and, having considered it, we gave our decision in favour of the Indian Government. We are now asked virtually to cancel that decision—to treat it as null and void. Why? Because those against whom we decided are dissatisfied. Of course, one side or other must always be dissatisfied with a decision; but I ask the House, in its anxiety to further the ends of justice, not to do a great injustice in this matter. Both parties appeared and were heard, and asked the decision of the Treasury upon their ease; each side took the risk of the decision being adverse, though of course hoping that it would be favourable. Suppose the decision of the Treasury had been in favour of the soldiers, would they now be coming forward to speak of the tribunal as improper and inadequate? Had the decision been against the Indian Government they would have lost £250,000, yet they raised no objection to the question being determined by us. They could have made no valid objection; but they did not even attempt to do so. I contend that a litigant has no right to bring his case before a tribunal, taking his chance of what the decision may be, and then, when it is adverse, to turn round and raise the question whether the Court was a proper one to try the case. If there were any objection to the jurisdiction of the Treasury it ought to have been urged before the arguments were proceeded with, and not afterwards. In trying the case, we took upon ourselves a heavy responsibility, without any motive whatever to bias us; we discharged that duty to the best and utmost of our ability, and we deserve a better return than to be accused of partiality and arbitrary conduct by those against whom we have committed no offence whatever, except it be that, after the best consideration we were able to give to the subject, we could see no justification whatever for their claim. Under these circumstances, I trust the House will be content to let the matter stand, and will not desire to re-open the question.


read from the Articles of War a passage in support of the statement which he had made, and which he understood to have been impugned by the right hon. Gentleman opposite (Mr. Stansfeld).

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

The House divided:—Ayes 108; Noes 67: Majority 41.