Lords Sitting of 26 February 1864

CHIEF RENTS (IRELAND) BILL [H.L.]
A Bill to facilitate the Redemption of Chief Rents in Ireland—Was presented by The Viscount HUTCHINSON, and read 1a. (No. 15.)

DENMARK AND GERMANY — INVASION OF JUTLAND.—QUESTION.
THE EARL OF MALMESBURY: Seeing the noble Lord the Secretary for Foreign Affairs in his place, I wish to ask him a Question, which, as I have given him no notice of it, he will, of course, answer or not, as he thinks proper. The Question I wish to ask him is, Whether he has received any information in the sense of a statement which appears in

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The Morning Post of to-day, in regard to a declaration made by the Government of Berlin with respect to Denmark. The statement to which I allude is to the following effect:—
"The Prussian Government explains the entry of the allied armies into Jutland upon the following grounds:—'The occupation of Jutland has a military reason, which is to prevent the Danes from concentrating all their troops behind the fortifications of Duppel and in the island of Alsen. To this motive may be added reasons of general policy. In the first place, the intention of the two Powers to occupy Schleswig as a pledge, and to localize the war, has been frustrated by the embargo laid upon German shipping and by the blockade of the ports. The war having been caused by the violation of treaties on the part of Denmark, the latter Power must pay not only the expenses of Federal execution in Holstein, but also those incurred by the occupation of Schleswig; the allied army will, therefore, occupy Jutland in order to hold a guarantee for the payment by Denmark of the expenses of the war."
That statement being in complete contradiction to one which was made by the Prime Minister in another place, I should like to know if the noble Earl could give the House any information on the subject?
EARL RUSSELL: I am sorry the noble Earl did not give me notice of his Question, that I might have referred to the official papers before I came down to the House, and thus been enabled to answer his Question more correctly than I am now in a position to do. Still, I can state generally the sort of explanation which is put forward by the Government of Prussia with respect to the entry of the Prussian troops into Jutland. What is stated is, that the Commander-in-chief of the Prussian forces had no orders to send troops into Jutland, and that it was not his intention to do so; but afterwards, when the Danish troops were on the frontiers of Jutland, they took up a position so menacing to the Prussian corps that was in Schleswig, that that corps thought itself obliged and justified in crossing the frontier and occupying a town on the border. With that statement came the information, that although the Commander-in-chief had no orders to enter Jutland, and the conduct of the officer who entered it was not approved, yet the Prussian Government thought it was necessary to occupy part of Jutland, as it were, for the security of their troops. With respect to the latter part of the statement to which the noble Earl refers, I may observe that what I understood the Prussian Minister to say was this—the statement, however, was one which was not regularly made—that the Danish Go-
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vernment, by ordering the capture of German ships, and of Prussian ships in particular, had made the war general, whereas it was the intention of the Governments of Austria and Prussia to make it local, and simply to take what was called "a material guarantee;" but that, if German ships generally were seized, the Prussian Government might be obliged to demand—not indemnification of the general expenses of the war, but compensation for those ships and their cargoes, and to occupy Jutland until they obtained that compensation. I am not at all surprised at that statement, because I remember stating long ago, that although the words "material guarantee" may sound something different from war, yet that the Danish Government were not bound to look on the invasion of their territory as anything else but war, and would, therefore, be justified — if they thought it expedient to do so—in attacking German and Prussian ships, and making war on them on the high seas; but that if they did so they would raise the question of compensation, and thus a war, which was spoken of as of comparatively small proportion, would assume a much more extended magnitude. That I stated some months ago, in order to induce Austria and Prussia not to enter into this war. This has been fully borne out by what has since occurred, and, therefore, I see reason both for lamenting and condemning the conduct of Austria and Prussia.
THE EARL OF ELLENBOROUGH: I do not understand that the noble Earl has received any communication from Austria on this subject, but that what he has stated refers entirely to a communication he has had from the Prussian Minister.
EARL RUSSELL: Yes; the statement comes entirely from the Prussian Government, but not in the shape of an official despatch. All we have heard from Austria is, that the Austrian Government will endeavour to moderate as much as possible the action of their General.

UNITED STATES — THE AMERICAN CORRESPONDENCE.—EXPLANATION.
EARL GRANVILLEsaid, that since last night's debate it had occurred to him to ask the Solicitor General why he had stated to Sir Hugh Cairns that he might have known that the papers would not be refused; and his hon. and learned Friend said he had done so for the simple reason that he had been informed, before he be-

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gan his speech, that there was no objection to the production of the papers.

COURT-MARTIAL ON COLONEL CRAWLEY—THE DEPUTY JUDGE ADVOCATE.—QUESTION.
LORD COLVILLE OF CULROSSrose, in pursuance of notice, to put a Question to the Secretary of State for War, in reference to the part taken by the Deputy Judge Advocate at the recent Court-Martial on Lieutenant Colonel Crawley. The office held by the Deputy Judge Advocate was permanent, and subordinate to the Judge Advocate General. Although it might be supposed, that on such an important occasion the Judge Advocate, or Deputy Judge Advocate, would have officiated, such was not the case, and the Government appointed Colonel Pipon as officiating Judge Advocate. But Colonel Pipon had nothing to do with drawing up the charges against Colonel Crawley. They were drawn up in the office of the Judge Advocate General. The Deputy Judge Advocate was the permanent and working officer of that Department, and, therefore, must have been cognizant of, and assisted in drawing up those charges. They found the Deputy Judge Advocate in the Court at Aldershot, sitting at the same table as the prosecutor, and Colonel Horsford, in opening the case, said "he appeared there with the Deputy Judge Advocate to conduct the prosecution." Thus they had the same officer assisting in drawing up the charges, then appearing as counsel for the prosecution, and at the same time being the permanent and working officer of that department before which the proceedings would be reviewed and revised before being submitted for the confirmation of the Queen. He thought their Lordships would agree with him that that was a grave departure from the ordinary course of judicial procedure. He might be told that there were precedents for it; but, if so, the sooner some change was made the better. The reply to the defence drawn up by the Deputy Judge Advocate, and put into the mouth of the public prosecutor, had caused great surprize and very general condemnation. That document dealt with subjects which were utterly irrelevant to the case before the Court; and matters which the prisoner had been prevented from introducing into his defence were, on the other hand, improperly and un-
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fairly used against him in this reply. In one passage he said, "Mrs. Lilley had the fixed, ever present knowledge on her mind, that there was about her bed and about her path, and spying out all her ways, a constantly shifting, watching, male stranger." He stated that which he was not able to substantiate by evidence, and he thought it surprizing that an officer of the high standing of Sir Alfred Horsford should have condescended to give official utterance to such profanity. The matter was worthy of explanation, and, therefore, he begged to ask the noble Earl the Secretary of State for War, Whether it was by the authority of the War Office, or by the direction of the Judge Advocate General, that the Deputy Judge Advocate acted as legal adviser to the official prosecutor at the recent court-martial on Lieutenant Colonel Crawley; and whether the military authorities recognized the part taken by the Deputy Judge Advocate in the proceedings of the court-martial as a precedent for the future?
EARL DE GREY AND RIPON: My noble Friend appears to think that the course taken in the late court-martial on Colonel Crawley involves some great deviation from former precedents, especially because the Deputy Judge Advocate, Mr. Denison, who acted as legal adviser to the officiating prosecutor, might also have been the person in the office of the Judge Advocate General who assisted in drawing up the charges against Colonel Crawley. With regard to precedents, if the inquiry had taken place before 1860, the Judge Advocate General might have appeared in a three-fold capacity — as acting Judge Advocate before the Court, as Official Prosecutor, and also as Judge Advocate General revising the sentence of the Court and advising Her Majesty with respect to it. Consequently, whether the course pursued in the case of Colonel Crawley be objectionable or not, it was entirely in accordance with the precedents in important cases till a very recent period. In the year 1860, at the suggestion of the present Judge Advocate General, the Articles of War were so far altered that the prosecutor and the acting Judge Advocate would no longer be the same person. My right hon. Friend (Mr. Headlam), when considering the arrangements which should be made for the court-martial on Colonel Crawley, thought it right to appoint Colonel Pipon to act as the officiating Judge Advocate General. When it became known that Colonel Craw-

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ley was about to employ eminent counsel to aid him in his defence, it became a question whether similar assistance ought not to be afforded to Sir Alfred Horsford, who had been appointed by the Commander-in-Chief to conduct the prosecution, Sir Alfred Horsford was himself very anxious that such assistance should be placed at his disposal. The illustrious Duke put himself in communication with the Judge Advocate General; and after a full consideration of the circumstances, Mr. Headlam recommended that Mr. Denison, as he was not to act as Judge Advocate before the Court, should afford legal assistance to the official prosecutor. There was nothing contrary to the regulations in such a proceeding, and his Royal Highness consented to the arrangement, and thereupon Mr. Denison was appointed. Your Lordships must bear in mind, that if Mr. Denison had not performed the duty we must necessarily have selected some other counsel from Westminster Hall and attached him as legal adviser to Sir Alfred Horsford. The Judge Advocate General thought, that if there was no precedent for the course, it was at all events consistent with the spirit in which previous courts-martial had been conducted, and was the best arrangement which could be made. My noble Friend has criticized the conduct of Mr. Denison with regard to the trial, and has also criticized the reply of the official prosecutor. The reply of the prosecutor must be looked on as the reply of counsel; and although I am no judge how far it is consistent with the rules of the bar, I know that Mr. Denison is a criminal lawyer of some eminence, and of high character, and is therefore not likely to lay himself open to censure. With respect to the conduct of Sir Alfred Horsford, my noble Friend is the first person who has said one word against it. He did speak of that conduct in terms of strong reprobation; and yet all who were present at the trial, whether friends of Colonel Crawley, or impartial spectators, concurred in the opinion that Colonel Horsford performed a very difficult and painful duty in a manner to command the respect of all who saw him. With respect to the question, whether these proceedings will be taken as a precedent for future trials, I have already pointed out that they are consistent with the course adopted in former times, and that the change made in 1861 only provided that the officiating Judge Advocate should no longer be the prosecutor. It may
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be a fair question for discussion, whether the functions of the Judge Advocate cannot be still more confined to the judicial functions of the office, and I think that is a question well deserving of consideration. The present arrangements have existed for a very long time, and the subject is not free from difficulty. It is a question worthy of being considered, but not to be dealt with hastily; and I must, therefore, ask my noble Friend to leave it for the consideration of Her Majesty's Government and of the military authorities, without requiring any more definite answer
THE DUKE OF CAMBRIDGE: My Lords, if I may be allowed to say a word, it is only to endorse the statement of the noble Earl, that Sir Alfred Horsford was my representative at the late court-martial, that he was entirely in the hands of counsel, and that his acts were the acts of counsel, in like manner as Colonel Crawley placed himself in the hands of his legal adviser, and his words were the words of his counsel. Sir Alfred Horsford was in a most difficult and delicate position, and I believe that everybody gives him credit for the straightforward, soldier-like, and manly way in which he performed the task which was imposed upon him. I am happy to have the opportunity of stating this, and in making it to be clearly understood, that anything which fell from Sir Alfred Horsford in his official capacity, was the act of his counsel, and must not be supposed to be the words or the acts of any other person. I hope your Lordships will allow me to refer for a moment to what took place last year, when this subject was under discussion here. On that occasion, I felt called upon to make some observations in justice to myself, and in justice to the high position which I have the honour to hold, in defence of my own conduct. It is not my intention to reopen this question, for I am old-fashioned enough to believe that these discussions are most undesirable, whether they take place in this or the other House of Parliament. I can assure your Lordships that the difficulties which arise to the public service from these discussions are very great. These questions have infinite ramifications; one question leads into another, and in endeavouring to clear up one point one is apt to fall into uncertainty as regards another. These subjects, in my opinion, cannot be fairly or fully discussed in public assemblies, and I am the last person, therefore, to wish to bring on

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a discussion on this question. I may, however, be permitted to refer to what I said on a former occasion. I have learnt from public and private communications that some expressions of mine, on the occasion to which I have referred, have given great pain to a distinguished General Officer, Sir Hugh Rose. They certainly never were intended by me to have the meaning that has been ascribed to them. It must be borne in mind that my statement was in self-defence. I made no charge at all against any one. I merely stated the course of action which I had adopted, and, therefore, nothing that fell from me at that time could be fairly interpreted as a charge against any one, much less against so distinguished an officer as Sir Hugh Rose. At the same time, it appears that an expression I used—"error of judgment"—has been regarded by Sir Hugh Rose, and I believe by Sir William Mansfield also, as a serious imputation upon the former; and I am happy to take this first opportunity afforded me to assure him and your Lordships that no sort of imputation was ever intended by me. I simply intended to convey the meaning that I differed from him on certain points, and I do not think that the fact of my differing from him could be construed as a charge. In fact, I may say that Sir Hugh Rose had nothing to do with the case, except so far as having to make certain observations on a review of the evidence. How my gallant friend, therefore, could suppose that I meant to convey any imputation upon him I really cannot imagine; but I am happy to have this opportunity of publicly stating that I had no such intention, and that I extremely regret that I should have been misunderstood.
LORD CHELMSFORD: My Lords, I am glad my noble Friend (Lord Colville) has called attention to this matter, because there was an opinion widely entertained that the part taken by the officiating Judge Advocate General was inconsistent with the duties of that officer, and was calculated seriously to prejudice the course of justice. I never thought there was another person responsible for the conduct of a court-martial but the Judge Advocate General. My noble Friend was wholly misunderstood if it were supposed that he intended to cast the slightest imputation upon the gallant officer who was appointed nominally to conduct the prosecution; for all he said was, that in the opening address Sir Alfred Horsford had stated that
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he appeared with the Deputy Judge Advocate for the prosecution, thereby showing that he was merely the mouthpiece of the prosecution. I wish to speak with the highest respect of Sir Alfred Horsford, who I think executed the duty which he had to perform with the most perfect propriety. I should, therefore, be sorry it should be supposed that my noble Friend ever intended to insinuate any charge against him for the part he took as officiating prosecutor at the court-martial on Colonel Crawley. The noble Earl (Earl de Grey) is right in saying that before 1860 the Judge Advocate General was, on the occasion of the court martial, the prosecutor. But he was not the prosecutor in the ordinary sense of the word. It was not considered his duty, like that of an ordinary prosecutor, to press the case against the prisoner. His duty rather was to act as a sort of arbitrator between the parties, to see that the case for the prosecution as well as for the defence was properly brought out, and, if I may use a familiar expression, to see fair play between all parties. When I saw the notice of the question given by my noble Friend, I thought it right to ascertain accurately, by reference to books of authority, what was the exact duty which the Judge Advocate General had to perform. I find it is his duty to see that the charges are properly framed, to consider what witnesses are necessary to prove the case, what facts it is proper to establish, and then to attend at the court-martial to preserve regularity in the proceedings, and to inform the Court upon any question of law that might arise. That was the mode pursued in the celebrated case of General Whitelock in 1808. The office of Judge Advocate General was then held by Mr. Ryder, who performed all those duties which I have described. Now there was one thing, as I am informed, done in the proceedings of the late court-martial which the Judge Advocate General ought not to have done. I do not find it stated anywhere that Mr. Ryder, or any other Judge Advocate, ever summoned to his office the witnesses for the defence; and, by cross-examining them, to endeavour to shake the testimony they were prepared to give at the court-martial. I have seen it publicly stated that that was the course taken by the Judge Advocate General on the recent occasion, and I have never seen or heard that statement contradicted. But, in order to show that I am

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right in the view I have taken of the duties of the Judge Advocate General before 1860, I will read on extract from a book on Courts-Martial by Mr. M'Arthur. That authority says—
"Though a Judge Advocate may be considered in the light of a prosecutor for the Crown, it does not thence follow that he is to deny a reasonable assistance to the prisoner in his defence, either in point of law or justice. On the contrary, it is his duty that the proofs, both on the part of the Crown and the prisoner, should be properly laid before the Court, and, when any doubtful point may arise, he should rather incline to the part of the prisoner."
This was the position of the Judge Advocate General prior to 1860. It was, however, considered that this nominal position of public prosecutor might prevent the Judge Advocate General from observing that strict impartiality required of him; and therefore, in 1860, by the Article of War just brought under the attention of the House, it was ordered that the officiating Judge Advocate General shall in no case appear as the prosecutor. Now, considering the course adopted by the recent court-martial, it appears to me that by appointing an officiating Judge Advocate General, and allowing the Deputy Judge Advocate to act as counsel for the prosecution, the Judge Advocate General was adhering to the letter of the Article of War, but violating its spirit. The Deputy Judge Advocate is a permanent official under a general warrant from the Judge Advocate General. It was the duty of the Judge Advocate to attend all trials by court-martial, or, if he did not think the case dignus vindice nodus, by his deputy. And therefore, I apprehend, on the trial it was the duty of the Judge Advocate to attend either by himself or his deputy. No one can deny but that the recent court-martial on Colonel Crawley was one of great interest and importance, and that questions of such niceness and delicacy were likely to arise requiring the ablest assistance that could be procured. The Court had a right to expect that the Judge Advocate General, or his deputy, would have attended to assist it by his legal advice upon those delicate questions of law. But for some reason or other this high official did not desire to have the conduct of this prosecution; and he therefore appointed a very excellent officer, Colonel Pipon, to be the Deputy Judge Advocate. Now, it is no disparagement to Colonel Pipon to say, that that gallant officer was not quite equal to advise the
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Court upon many of the points of difficulty which arose during the progress of the court-martial. The inconvenience of this course was manifested in a very marked manner during the trial by a circumstance which happened. A witness had been examined for the prosecution and cross-examined by Colonel Crawley. In the course of his cross-examination a question was put to the witness which was objected to on the part of the prosecution, and was withdrawn. Some days afterwards the re-examination of the witness was completed. The witness having retired, the prosecutor proposed to recall the witness for the purpose of putting the very question to him which he had objected to when asked by the prisoner when cross-examining him. The Court found themselves in some difficulty, and after some consultation together they agreed to ask the opinion of the Judge Advocate General upon the point, as to whether the answering of such a question was likely to vitiate the proceedings. So that an opinion on this very important point was referred to the very department from which the prosecution emanated. Now, that seems to me calculated to change the position of an impartial arbitrator, as the Judge Advocate General is supposed to be, into a vehement prosecutor. I must make one observation in regard to the reply of the prosecution on the defence of Colonel Crawley. I think it was not only contrary to the usual course of conducting prosecutions of this kind, but it was calculated very seriously to prejudice Colonel Crawley. In that reply new ground was for the first time opened, not a hint of which had been given during the whole course of the previous proceedings. It was, therefore, quite impossible for either Colonel Crawley or his counsel to anticipate what took place. If such a circumstance occurred in the ordinary courts of the country, the Judge would have checked the counsel for the prosecution, or the counsel for the defence would have applied for the interference of the Court, and the matter would be put a stop to. If the Judge Advocate General had been acting according to his duty as adviser of the court-martial, he would not have allowed anything so unfair and so unjust towards the prisoner. The officiating Judge Advocate, a highly honourable man, did not perceive this, and it was not likely that he could have perceived it, or even if he had perceived it, that he would have checked a course which was sanctioned by the Deputy

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Judge Advocate, who was a gentleman of great legal experience. There is another matter which I do not think should be passed by without observation. It appears almost as if to strengthen the reply, to produce a greater influence on the minds of the members of the court-martial, that the gallant officer, who was the nominal prosecutor, delivered his reply whilst standing between the Judge Advocate General and the Deputy Judge Advocate, and the members of the Court must naturally have believed from these circumstances that every word pronounced by him was sanctioned by the two eminent legal authorities beside him. The greatest possible danger might have resulted to Colonel Crawley from this unusual, irregular, and unjust course pursued by the Deputy Judge Advocate. If the members of the court-martial had not been as discriminating as they were honourable, such a course might have produced a fatal result to the trial; at all events, it might have produced a qualification of that full and honourable acquittal to which Colonel Crawley was fairly entitled. This is a case of the highest possible importance to the public service, and I think the question raised by my noble Friend will be attended by gratifying results if it prevents anything so unfair, so irregular, and so improper from being repeated in future trials by courts-martial.
THE EARL OF LONGFORDsaid, he concurred in the compliments paid to Sir Alfred Horsford for the manner in which he had performed his duties in the delicate position he had occupied at the recent court-martial; but he had to remind the House that Colonel Crawley also had been placed in a very delicate position on the same occasion, which had scarcely yet been sufficiently recognized. It appeared to him that the appointment of the Deputy Judge Advocate to assist the official prosecutor was likely to have an unfair influence against Colonel Crawley; but there were several circumstances besides those referred to which entitled the gallant Colonel to general sympathy, and which deserved to be alluded to in a discussion on this subject. It was scarcely necessary to refer to the unseemly attacks of the press, persevered in with such tenacity to the very moment of the trial; but there were those in authority who had it in their power, or who ought to have had it in their power, to disabuse the public mind of much of the false impression that was thus created. The falsehoods asserted so audaciously,
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circulated so ingeniously, and so feebly opposed by those who were thought to be officially informed on the subject, were generally credited, and were supported by some acts of those in authority. The noble Lord the Secretary of State for War, in an unusual manner, granted an extraordinary pension to the family of the soldier who had been supposed to be the victim of tyranny. That was a circumstance calculated to prejudice the public most seriously. Then a noble Earl, distinguished for his philanthropy (the Earl of Shaftesbury), had come down to that House and solemnly said that an inquiry was necessary, and added, that within his memory no incident had made so deep and so painful an impression on the mind of the people of England. The noble Earl knew nothing of the matter but what he had heard from his friends the people of England, but he pressed that the inquiry should take place not in India, but in England, where the people of England might take part in it. The illustrious Duke, the Commander-in-Chief, offered no opposition to the court-martial. About the same time a free pardon was granted to Captain Smales—a proceeding on which the public would naturally put their own construction, and this was sure to be one not at all favourable to Colonel Crawley. Then came the appointment of the Deputy Judge Advocate to assist the prosecutor. But, after all, the impression which had gone abroad with reference to the acts of the gallant Colonel had turned out to be a misapprehension; and Press—Parliament — Horse Guards—War Department—all found that they had been the credulous victims of a ridiculous delusion. He had himself the honour to hold a commission in Her Majesty's army, and at some time or other he might find himself in the position of being obliged to exercise a strong hand to repress disorder on the part of those under his command. In such a case he should expect to find himself strengthened by the cordial and willing support of the military authorities; but if he should find that not alone the pressure of public opinion was against him, but also that he was not supported by those whom he thought ought to be in his favour, he should feel that he had not received fair play. Even, as a last instance, they heard of the War Department bearing what they called "the usual expenses" of Colonel Crawley's defence—as if it was usual to bring a man 10,000 miles to stand his trial. He hoped this mi-

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serable decision would be reconsidered, and that the noble Lord (Earl de Grey) would come forward as the generous Minister of a generous country, and at least make such reparation as could be made, by paying all the costs of a man who had been exposed to very great expense by a public injustice and public absurdity.
LORD WENSLEYDALEsaid, he agreed entirely with Lord Chelmsford as to the anomalous position in which the Judge Advocate was at present placed, and that it was highly desirable this point should be further considered. But as to the conduct of the Deputy Judge Advocate in conducting the prosecution of Colonel Crawley, it was clear, from the statements of the Secretary for War, that he was appointed by the Judge Advocate in default of counsel being employed to conduct the prosecution, and he must have understood he was to act in that character. He had been on terms of intimate friendship with the Deputy Judge Advocate for more than thirty years, and had the greatest esteem for his ability and honour. He was sure that gentleman could have done nothing at variance with that character in conducting the case. In his reply on the trial, he, like most advocates, used arguments of different degrees of force, some of which, on consideration, he might have thought it better to have omitted. But that he intended to act with perfect honour he had not the least doubt. He must add that he was himself, in common, he believed, with the public generally, perfectly satisfied with the honourable acquittal of Colonel Crawley.
THE EARL OF SHAFTESBURY: My Lords, the noble and gallant Earl (the Earl of Longford) has condemned me for the small part which I took with respect to the court-martial on Colonel Crawley. Now, I did say that I never knew any event in the course of my life which had so much excited public feeling, and I added, that on that account, as well as for the sake of the discipline of the army, the alleged wrong should not pass without inquiry, and, if found true, should not pass without redress. My Lords, I am ready to repeat now the part which I then took. I contend that I was fully borne out in my statement ns to the feeling of the country, and that inquiry was demanded by the public. At the same time, I carefully abstained from pronouncing any opinion whatever upon the case. I confined myself to merely stating the circumstances which called so loudly
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for investigation, adding that I thought the trial should take place in this country. That trial may have cost a very considerable sum of money, and may have put a number of gentlemen to inconvenience; but I am satisfied that it was by far the wisest and the best course to hold the trial in this country, for had it taken place in India, the conclusion arrived at would not have been so satisfactory as it appears to have proved. I do not at all repent the course I then took, and I am sure that it has given greater satisfaction to the country and to the army than it would otherwise have given; because every private soldier has now seen that no injustice can be done even to the rank and file of the army without moving both Houses of Parliament, and putting into operation all the powers of the State, to inquire into the wrong, and, if it be proved, to redress it.
LORD CRANWORTH: The noble Lord who has brought this subject forward may rest satisfied with this good result, if no other—that the whole question connected with the office of Judge Advocate has been brought under the consideration of the Government. I believe the error into which some persons have fallen as to the nature of this office arises from its name. It has been thought that the Judge Advocate is to perform the double duty of Judge and advocate. That, however, is an entire mistake. He is judex advocatus—a Judge called to assist the Court. He has no duties towards the parties at all, and the inconsistent duties which have been supposed to be cast upon him have originated in the mistake I have pointed out. It may be said, in a limited sense, that the Judge Advocate does perform the duties of a prosecutor. As to the preparation of the prosecution, that often forms part of the functions of the Court. At every assize, when the record has to be made up, the Clerk of the Court is described as prosecuting for our Lady the Queen, and in that sense may act as prosecutor. In the case of a person arraigned having no counsel, this officer gives his assistance in order that justice may be properly administered, and the accused suffer no injury; but it never can be right that he who is to advise the Court as to whether the proceedings are or are not correct, should take any part in the prosecution. I believe, from what fell from the Secretary for War, that this is the opinion of the Government. This benefit, at all events, has arisen from these proceedings;

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and I agree with the noble Earl who has just spoken (the Earl of Shaftesbury) in rejoicing that this trial took place here. It may have been a prejudice that existed; it may have been that the public were fired and excited by something which ought not to have excited them; but they were excited, and I put it to the House whether anybody would have believed, as ninety-nine people out of a hundred now believe, that Colonel Crawley was perfectly clear from all imputations if the inquiry hail taken place in India. I think this debate has vindicated the Government in the course which they took, and the statement of my noble Friend (Earl de Grey), that the whole subject of this office, anomalous as it is, will receive the attention of the Government, is an additional source of satisfaction.
THE EARL OF HARROWBYsaid, that if a public service had been done by holding the court-martial in England, the burden of the expense ought not to fall upon the victim singled out, but upon the country, who demanded the inquiry. It might have been a signal advantage to the country and the public to show that the grievances of the soldiers, if well-founded, would be redressed; but that advantage ought not to be gained at the expense of the innocent. He hoped, therefore, the Government would reconsider the question as to the mode in which the expenses should be defrayed.
THE EARL OF HARDWICKEthought, that this discussion was of importance sufficient to recommend the whole subject to the attention of the Secretary of State. His noble and gallant Friend near him (the Earl of Longford), and the noble and learned Lord who had occupied the Woolsack (Lord Cranworth), united in the opinion that the case was one of high importance. He wished to ask, then, whether this case was to be drawn into a precedent? Was the opinion to go forth from this House that the Commander-in-Chief was to hold himself prepared, in every case in which the public mind and the press chose to grow excited, to assent to such trials being held in England, and by so doing seem to intimate that the Commander-in-Chief in India, and other officers there, were not sufficiently high-minded and honest to be intrusted with the decision of such cases? He wished to guard the Government and the Horse Guards against such opinions as those just enunciated upon the high au-
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thority of the noble and learned Lord opposite; and he thought it should be made known that this case should not happen again; that it came suddenly upon the Commander-in-Chief, who was overborne by public opinion, and that the Commander-in-Chief in India was deserving of confidence. As to the office of Judge Advocate, the duties of that functionary in the navy were perfectly well ascertained. He always acted as the officer of the Court, and as nothing else; but if a prisoner had no counsel the Judge Advocate advised and assisted him. Thus the office was a highly valuable one, and tended to promote the ends of justice. He did not see why any distinction should be made between the two services. The duties of the office were at present rather anomalous, and as the office was held to be valuable in both the naval and the military services, he hoped that those duties might be so arranged as that they might be performed to the general satisfaction.
THE DUKE OF CAMBRIDGE: My Lords, as I have been personally alluded to, I wish to say one or two words before the discussion closes. My noble and gallant Friend (the Earl of Longford) asks whether he, or any other officer holding a commission, is safe after the course which has been pursued with regard to Colonel Crawley. My answer is that the very fact of Colonel Crawley's return, completely exonerated, to the command of his regiment, and of his full and honourable acquittal here, is the best proof I can give to my noble and gallant Friend that he will be safe. Then I am asked whether this case will be drawn into a precedent. I answer decidedly not. It is one of those peculiar cases which now and then occur, and as to which, considering their very peculiar circumstances, those in authority must take a decided course one way or the other, whether there be a precedent or not. It is true that it would be most objectionable to adopt this as a general principle. But I put it to tins House and to the country, whether, under the peculiar excitement which existed, any verdict coming from India would have been received here with confidence, and whether it was not essential, as a part of the justice of the case, that the proof should be taken and the verdict arrived at in this country? I consider that the proclamation of that acquittal here was the greatest possible advantage to Colonel Crawley himself. I rejoice that the trial has ended to his advantage; and I repeat to my noble and

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gallant Friend, who seems to consider that his commission and those of other officers are unsafe, that the best proof that his commission is perfectly safe is the fact, that Colonel Crawley has had a fair trial, and has been honourably acquitted. As it is, Colonel Crawley will be considered innocent both here and in India, and the fact that the proceedings have been carried on under the direction of the Judge Advocate General will entitle them to the most favourable interpretation. With regard to Captain Smales, I can only say that the decision arrived at as to this officer was based on legal grounds alone. The moment the Judge Advocate advises the Commander-in-Chief that certain things are illegal, it is necessary that the Commander-in-Chief should act—and as my noble Friend the Secretary for War will, I believe, admit, that action is essential for the interests of the public service. The decision, I repeat, was come to on the advice and the recommendation of the Judge Advocate, and with him rests the responsibility of Captain Smales's reinstatement in Her Majesty's service.
LORD COLVILLE OF CULROSSdisclaimed any intention of using any discourteous language towards the official prosecutor, in any remarks he might have made.
EARL DE GREY AND RIPON: I must appeal to your Lordships' indulgence to allow me again to address you, after the allusions that have been made to my conduct. I have no doubt the noble Lord who introduced this subject did not intend to make any attack upon Colonel Hors-ford; but some words which fell from him might bear the construction which I placed upon them, and I am glad that I have afforded the noble Earl an opportunity of removing that impression. In consequence of what has fallen from the noble and gallant Earl opposite (the Earl of Longford), I must enter in some detail into the state of this question as it stood when we decided that Colonel Crawley should be tried by court-martial. I wish, in the first instance, to state that the Government accept fully the verdict of acquittal in the case of Colonel Crawley; and I can say for myself, and I am sure for the Commander-in-Chief, that we were only anxious that the matter should be fully and fairly inquired into; and that we both rejoice at the conclusion at which the court-martial arrived. I rejoice that a gallant officer has been acquitted of serious charges
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which had been brought against him, and that he has been able to vindicate his character in the face of his countrymen. If I allude to the circumstances as they existed in June last, it is solely to explain the conduct of the Government and the military authorities. It must be borne in mind that in June last, when it was determined that Colonel Crawley should be tried by court-martial, very grave and serious charges had been made against that officer in the public press and in Parliament upon the authority of persons who were entitled to confidence. It was expedient that steps should be taken to ascertain the facts, and to give Colonel Crawley an opportunity of vindicating himself. If that had not been done an impression would have been left upon the public mind that a commanding officer in Colonel Crawley's position could with impunity be guilty of such conduct as was imputed to him, and the consequence would have been very injurious to the public service, and might have interfered with our recruiting operations. Moreover, the case stood in a peculiar position in consequence of the course which had been taken by Colonel Crawley himself. That officer, in the reply he made before the court-martial at Mhow, used language which it was impossible to interpret at that time, with the light we then possessed, in any other sense than that something had been done which shocked Colonel Crawley— which he considered improper. I think, speaking from memory, he even used the word "inhuman," and he said that the blame for that proceeding was not attributable to him, but to his adjutant, Lieutenant Fitzsimon. That speech was delivered one month after Sergeant Major Lilley had given his evidence at Mhow, and therefore at a period when it was reasonable to suppose that Colonel Crawley had had full time to inquire into what had really taken place, and to make himself perfectly acquainted with all the circumstances. Then again, just at the time when this subject was brought prominently before the public, Lieutenant Fitzsimon came to this country and was summoned to the Horse Guards by the Commander-in-Chief. He stated, that when he found his conduct reflected upon by the Commander-in-Chief in India in his remarks upon the court-martial he sent in a remonstrance in the proper official course, showing that he was not to blame, but that he had simply carried out the orders of his commanding officer. That

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remonstrance, with other facts of the case, has since been placed before the court-martial at Aldershot. It appeared that the remonstrance was sent to the General commanding the district, who returned it to Lieutenant Fitzsimon, with an intimation that it was of an insubordinate character, and must be withdrawn. Ultimately, Lieutenant Fitzsimon did withdraw the remonstrance. When the illustrious Duke (the Duke of Cambridge) saw the remonstrance, he was of opinion, as was also the Adjutant General, the proper authority upon such questions, that the letter was not of an insubordinate character. We had then the fact, that a remonstrance which, according to competent authority, was properly worded had been rejected as insubordinate, and therefore had never come to the knowledge of Sir Hugh Rose, nor had been forwarded to this country. Therefore the case stood at that time thus; there was great public excitement, and heavy charges had been made against Colonel Crawley—who seemed himself to admit that something improper had been done for which he blamed Lieutenant Fitzsimon, who, when he remonstrated against such blame, was told that his remonstrance was insubordinate. Such were the circumstances when; the court-martial was decided upon. I thought then, and I think now, that those circumstances justified the course taken by the Government and the military authorities. The result has been, that the suspicions which had been excited have been dissipated by the court-martial; but if the court-martial had not taken place in this country those suspicions would have still prevailed. Without that proceeding, false impressions would still exist on the public mind, and Colonel Crawley would not have had the means of vindicating himself in the face of his countrymen. It appears to me, looking at all the facts and at the result, which has been the full and honourable acquittal of Colonel Crawley, which has been accepted by the military authorities, by the Executive, and which Her Majesty, upon the advice of the proper authority, has been pleased to confirm by directing the return of Colonel Crawley to his regiment, that the authority of the gallant officer has not been weakened or impaired, but has been rather restored and strengthened. The noble and gallant Earl opposite (the Earl of Longford) has referred to the question of Colonel Crawley's expenses. I think there has been some misapprehension in the mind of my noble
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Friend near me (the Earl of Harrowby) upon that subject. The noble Earl spoke of the great expense to which Colonel Crawley had been put by the trial taking place in England. Every expense that was due to the fact that the trial took place in this country has been paid by the Government. The practice in cases of courts-martial is to pay nothing for expenses until the verdict is returned. In the case of Colonel Crawley, I saw at once that if we brought him home to be tried, it would be most unjust and injurious to him not to know whether the expenses of his witnesses would be paid or not. I immediately communicated with the Commander-in-Chief, and an intimation was sent out to Colonel Crawley, at the same time that he received notice of the court-martial, that the Government would pay the expenses of any witnesses he might think it advisable to bring to England. The expenses of these witnesses have been paid, his own travelling expenses have been paid, he has been in the receipt while here of his Indian pay and allowances, and his command money has been continued. While at Aldershot he was in public quarters, and everything has been paid except the expenses of the legal gentlemen he employed. There is no precedent for the payment of such charges, and as those expenses were not at all traceable to the change of venue to this country, it is impossible to draw any distinction between this case and any other. Therefore, those expenses, and those alone, the Government have not repaid to Colonel Crawley. One more point I must notice. The noble and gallant Earl (the Earl of Longford), says, that I, or rather the Government, have granted an unusual pension to the parents of Sergeant Major Lilley. The facts are these. The opinion of the Judge Advocate General was, that the prolonged imprisonment of Sergeant Major Lilley was illegal. I am no lawyer, and was bound to accept the law as it was given me by a competent authority; and being told that the confinement was not borne out by law, I did think that something should be done for the parents, very old persons, and I thought it was fair to give them a pension equal to that which Sergeant Major Lilley would have been entitled to when he retired from the service. I will not follow the noble and learned Lord opposite (Lord Chelmsford) in his legal argument, but I must say that I scarcely think the functions of a Judge Advocate General as public pro-

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secutor in former times have been altogether of so mild and gentle a character as he assumes. Speaking from memory, I think I may say that such was not the view taken by General Whitelock of the conduct of Mr. Ryder as prosecutor. All I can say with respect to the office of Judge Advocate General is that, if viewed by the light in which we regard judicial officers in ordinary courts of justice, it is an anomaly, and that it has led to anomalies in practice. The question is important, and I am sure the House will not wish the Government to act hastily; but certainly the subject is, as I have already said, one which well deserves the most serious consideration.

WEST HARTLEPOOL RAILWAY DIRECTORS.—QUESTIONS.
THE EARL OF DONOUGHM0REinquired, pursuant to notice:—1. Whether the Case against the late Directors and Auditors of the West Hartlepool Harbour and Railway Company has been laid before Her Majesty's Attorney General; and what decision has been given on the subject: 2. Whether it is the intention of the Government to propose any Measure in the present Session of Parliament to carry out the Recommendations in the Report of the Select Committee on "Railway Companies Borrowing Powers" of last Session? He had no personal interest in the matter, and had no connection whatever with the district of country through which this railway passed. He had had the misfortune to be Chairman of the Committee which inquired last Session into the West Hartlepool Bill. He would not recall the attention of the House to the facts disclosed in the special report upon that Bill. It was sufficient to remind them, that the House was unanimously of opinion that such practices should be put a stop to, otherwise Parliamentary limits upon Borrowing Powers would become useless. The noble Lord on the Woolsack had promised, on behalf of the Government, that the evidence should be referred to the Attorney General, with the view to ascertain whether there were grounds for a prosecution of the late directors and auditors of the Company. He wished to know whether this reference had been made, and whether a prosecution would be instituted. In consequence of the facts that came out last year, a Committee was appointed to inquire what means should be taken for the purpose of restraining Companies within the Borrow-
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ing Powers of their Act. The Committee came to a Resolution that a half-yearly Return setting forth the amount of Borrowing Powers possessed by each Company, and how far they had been exercised, signed by the Chairman and Secretary, should be deposited at the Board of Trade; and also that every bond issued in pursuance of their Parliamentary powers should bear a certificate signed by the Chairman and Secretary, certifying that it was issued in pursuance of the Act or Acts, and was within the limits of the Borrowing Powers. There was another point before the Committee of a much larger nature, but which was not thoroughly discussed—namely, the question of the registration of Railway Securities for the purpose of giving greater security to the public. He wished to know whether, during the recess, this matter had been under the consideration of the Government, and whether they were prepared to submit to Parliament any Measure to carry into effect the recommendations of the Committee?
THE LORD CHANCELLOR: My Lords, the statement which the noble Earl (the Earl of Donoughmore) made to the House last year appeared to me to present a case of a very grave and serious nature. One of the principal circumstances of that case was, that some railway directors had at various intervals of time issued to the public debentures to an amount far beyond what they were empowered to issue. They had, therefore, succeeded in obtaining from the public large sums of money by fraudulent representations. I stated to the House, that I thought the case required investigation. At the same time, your Lordships will remember that if it was maintained there might be some difficulty in making it the subject of prosecution, as the parties from whom the money had been obtained had in some measure condoned the offence by coming into certain terms embodied in the Act passed last Session. But there were other circumstances of the case of a fraudulent nature which I thought deserved strict inquiry. Accordingly, the next day after the noble Earl's Motion, I directed instructions to be laid before the Solicitor of the Treasury to make them the subject of inquiry. That Gentleman in a most energetic and industrious manner investigated the whole matter, and prepared a case for the opinion of the Attorney General. That case, which was a document of some length, was laid before the then Attorney General in the

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beginning of August. Unfortunately, Sir William Atherton was then Buffering under the beginning of that illness which afterwards increased from time to time, until it rendered necessary his resignation in October; and the same circumstances, I am sorry to say, prevented his giving any attention to the subject. When my hon. and learned Friend the present Attorney General succeeded him in office, the papers were immediately transferred to him. They received due attention, and he has given two opinions on the subject; but the opinion on both parts of the case concludes with a statement, that, under all the circumstances, he is not prepared to say that a conviction could be reasonably expected to be obtained, and therefore he does not think a Government prosecution is advisable. It belongs to my hon. and learned Friend entirely to administer that part of the law, and advise the Government. Having, therefore, directed his attention to the subject, and received the expression of his opinion, I am obliged to concur in it, that I do not think it desirable that any proceeding should be taken.
EARL GRANVILLEsaid, that two of the recommendations of the Committee had been referred to a very competent authority to consider how far they could be carried out. The Committee had not had time sufficiently to investigate the subject.
THE EARL OF DONOUGHMOREsaid, that all the inquiries before the Committee led them to conclude that no part of the money raised had been applied by Mr. Jackson to his own purposes.
House adjourned at a quarter before Seven o'clock to Monday next, Eleven o'clock.