§ LORD CHELMSFORD,in rising to ask the First Lord of the Admiralty a Question with respect to the Distribution of the Parliamentary Grant amongst the Flag Officers of the Fleet employed in the Expedition to Kertch and Yenikale, said, that in order to render the Question intelligible to the House, he must be permitted to make a few remarks. It would be in the recollection of their Lordships that, during the Crimean war in 1854, an expedition was sent to Kertch and Yenikale, in conjunction with our allies, and that as one result of the expedition a large quantity of various kinds of stores, consisting of coals, guns, steam machinery, and other articles of the estimated value of nearly £200,000, was captured. All the stores were appropriated to the public service; and the captors, of course, expected that the value would be ascertained and the amount distributed as prize money. For some reason or another, however, no claim was made till 1861, when the Government refused to recognize the claim, or to grant 1531 the slightest remuneration for services by which the country had so largely benefited. He would do the noble Duke the First Lord of the Admiralty the justice to state, that he fought a good fight for the service over which he presided; that he endeavoured to prevail on the Government to grant a sum of money as remuneration to the captors. A correspondence took place between the Admiralty and the Treasury on the subject, and a difference of opinion arose between these two Departments of the Government, which led to what he supposed he must call, in the words of Shakespeare, "No quarrel, but a sweet contention." In the result, the Treasury was too strong for the noble Duke, and he was compelled to give way. He did not impute any blame to him, but he thought it was to be regretted that he did not give permission to the captors to prosecute their claim in the Admiralty Court. The reasons for the refusal, as stated by the Queen's Proctor, were the lapse of time, and "the capture having been a joint one by the army and navy, and farther complicated by having been made in conjunction with the French army and navy, Her Majesty's Government do not consider it expedient that any step should be allowed to be taken by the Court of Admiralty towards obtaining the condemnation of these stores." Thus the only avenue to the obtaining justice was closed. But the opinion of both Houses of Parliament was expressed so loudly in their favour, that Government was obliged to give way, and ask for a grant of money as remuneration for the services of the captors. Accordingly, during the last Session, a sum of £85,925 was voted for that purpose. He thought that the terms of the grant were essential to be considered in determining the question which he had submitted to the noble Duke. The Vote of that sum of money was "for the officers and men employed in the Expedition to Kertch and Yenikale." Now, it was impossible to put any other than one construction on these words. Subsequently to this grant a Royal Warrant was issued, reciting that the grant had been made to "the officers and men comprised in the expedition to Kertch and Yenikale." Now, the words "comprised in" were either equivalent to the words in the grant "employed in," or they were a mis-recital of the grant. The Warrant went on to direct that the money voted by Parliament should be divided among the army and the navy 1532 in the proportion of three-fourths to the navy and one-fourth to the army, and it directed that it should he distributable "according to the rules of the naval service," and that if any doubt should arise as to the distribution, or as to any claim relating to the matter, it should be determined by the Board of Admiralty. Now, their Lordships would observe that this Warrant gave no original authority to the Board of Admiralty to decide any question relating to this distribution. It was only in case of any doubt arising that they were to decide as a court of appeal. But the Admiralty instantly assumed the original right of directing the mode of distribution. In ordinary cases of prizes the course was in the first instance to ascertain the proportion of the whole amount to be set aside as the share of the flag-officer or officers. If there were only one Admiral on the station he would be entitled to the whole; if there were two, the senior Admiral received two-thirds and the junior one-third. If there were three or more, then the senior took one-half, and the other half was divided amongst the others. Upon the present occasion the only Admirals employed in the expedition, and therefore the only parties within the terms of the Parliamentary grant, were Lord Lyons and Sir Houston Stewart. The sum, which was found to be the flag share, was £2,856. Of this sum Lord Lyons would have been entitled to two-thirds, and Sir. Houston Stewart to one-third. But the Admiralty, taking upon themselves the distribution of the money, divided it into moieties, and gave £1,428 to Lord Lyons, and with regard to the remaining £1,428, they distributed it to Sir Houston Stewart, Admiral Boxer, Admiral Stopford, and Sir Frederick Grey. Now of these Admirals the three last-named were not employed in the expedition at all. Admiral Boxer was at Balaclava, Admiral Stopford at Malta, and Sir Frederick Grey at Constantinople. Therefore, by the mode of distribution adopted by the Admiralty (if the terms of the grant did not include these persons), Lord Lyons had been deprived of about £457, and Sir Houston Stewart of about £595. The Admiralty had taken upon themselves to decide not according to the terms of the grant. Parliament having given this money expressly as a remuneration for the services of the persons employed in the expedition, the Admiralty, assuming, in the first place, a jurisdiction which 1533 did not belong to them, had taken upon themselves to divide the Admiral's share according to the ordinary mode of distributing prize money. He admitted that if this were ordinary prize money, the absent Admirals would be entitled to their fair share. The noble Duke might say that the terms of the Warrant justified the Admiralty in the course they had pursued, because by its terms the distribution was to be "according to the rules of our naval service." But, supposing those words meant that Admirals who were not employed in the expedition were to have shares, then he submitted that the Crown had no power whatever to go beyond the terms of the Parliamentary grant, which grant defined the recipients. But there was another interpretation of the words of the Warrant quite consistent with the words of the grant. "When the Warrant directed that the distribution should be made "according to the rules of our naval service," it must be taken to mean "according to the shares and proportions to which the parties are entitled under the terms of the grant." That this case differed from an ordinary case of prize money was as clear as anything could be. If this had been an ordinary case of prize money it would have been the bounden duty of the Admiralty, under the 5th section of the Act of 1854, to have set apart a portion of the sum granted by Parliament to our allies, the French. But this was not, and could not be considered as a case of prize money, and the money had all along been looked upon merely as bounty given to the captors. He understood, in the discussion of this subject in another place, that great stress was laid on the terms of the Prize Act of 1854. If he could go beyond the terms of the Parliamentary Grant, he should certainly take the clause of that Act in favour of his view of the question. The clause, for example, provided that in conjoint expeditions of the navy and army against any fortress or position on land, the flag and general officers, and other officers acting in such expedition, should have each such proportions as Her Majesty might direct of all arms, munition, goods, wares, and merchandize as might be found in such fortress or position after final adjudication as lawful prize, and that the distribution should take place in the same manner and proportions as in other cases of lawful prize. It was clear, therefore, that the clause referred solely to persons acting in 1534 those expeditions, and gave a right of distribution only among them and no other, so that it was completely opposed to the view which the Admiralty had taken. Lord Stowell, he might add, in two or three of his decisions, had distinguished the captures made in land expeditions by the name of "bounty," instead of "prize;" and so marked is the distinction that Greenwich Hospital has been held not to be entitled, with respect to conjoint expeditions, to a proportion of the money as the naval share, which, in cases of prize, belonged to it under the Act of Parliament. Thus, whether the distribution was looked upon in connection with the Parliamentary Grant, or as having taken place under the operation of the Prize Act of 1854, the decision of the Admiralty would be equally unjustifiable, inasmuch as they had departed from the terms both of the Grant and of the Act of Parliament. What, under those circumstances, he wished to ascertain from the noble Duke was, whether, before the Admiralty came to the determination at which they had arrived on the matter, they had obtained the opinion of the Law Officers of theCrown—he did not mean the special advisers of the Admiralty, but the Law Officers of the Crown, to whom it was usual to refer all questions of importance of this kind. There was another point he wished to put to the noble Duke, and he trusted he would look favourably on the suggestion he (Lord Chelmsford) was about to make. For his own part, he denied the authority of the Admiralty to interfere in the case, because the claim for the distribution being confined to those persons who were actually employed, all that remained to be determined was the proportion to which each of those persons was entitled. But, assuming the appellate jurisdiction of the Admiralty, he wished to point out that the Royal Warrant, although it said their decision was to be final, yet contained a proviso, to the effect that Her Majesty reserved to herself the right of making, within three months of the time when the decision was notified, a different order. He was not sanguine enough to suppose that he had satisfied the noble Duke that his interpretation should be rescinded and a new order made, but he did trust that the noble Duke would allow the question to be determined by an impartial tribunal. He was probably aware that, under the provisions of the 3rd and 4th of the Queen, sec. 22, power was given to the Court o 1535 Admiralty to decide all questions relating to bounty, in cases which might be referred to it by Her Majesty, acting upon the advice of her Privy Council. To that Court, then, he would suggest that the matter should be referred. In the present instance, it happened by accident that one of the Board of Admiralty was personally interested in this matter—and who was, consequently, one of the Judges. Their Lordships would not suppose for a moment that he believed that would have the slightest influence on the decision, or that the gallant officer to whom he referred took any part in it; but they all knew how apt unjust suspicions were to arise; and, in order to remove or prevent them upon the present occasion, he hoped the noble Duke would avail himself of the opportunity he had of allowing the case to be sent into a Court, where it would be decided by a Judge of great experience and undoubted impartiality, whose decision, whatever it might be, would put an end to all doubt and all misapprehension.
§ THE DUKE OE SOMERSETsaid, he wished, before he answered the questions which had been put to him by the noble and learned Lord (Lord Chelmsford), to make a few observations on the remarks by which they were accompanied. The noble and learned Lord had in the first instance referred to the Queen's "Warrant of the 26th of November, 1863; and the main point was, what was the nature of that Warrant? In his opinion it decided three questions. It in the first place stated, that the grant under discussion was to be distributed according to the rules of the naval service; secondly, that it was to be distributed in accordance with the proclamation of March, 1854—a provision which the noble and learned Lord omitted to notice; and, thirdly, that any doubtful or disputed claim was to be determined by the Board of Admiralty. Now, the noble and learned Lord had truly stated that the grant was given in lieu of prize money; and it should be borne in mind that the naval officers concerned claimed their shares not as bounty but as a right —not as a reward granted by Parliament but under the proclamation of 1854. That constituted the foundation of their right. The property having been taken by the Crown the officers claimed its value; and they argued that, under the proclamation, they were legally entitled to it But let him suppose that prize was awarded, how would that prize be distributed? 1536 Would it have been distributed merely to the captors of Kertch? How had all the other prizes, taken in the Black Sea, been distributed? Why, according to the law of naval prize, and the proclamation of 1854, and if the Admiralty had taken any other course in the present instance than that which they had pursued, they would have broken faith with the whole of the navy engaged in these operations. The proclamation of 1854 stated, that in the case of all prizes taken by any vessel under his or their command, the flag officer or officers should have the l-20th part of the whole net proceeds, and it went on to make a distinction with respect to the taking of ships of war and privateers. The officers on the station were all to be entitled to participate in any prizes taken while they were on the station. Further on it stated that no such flag officer, quitting any station except by order of the Commander-in-Chief, or for some necessary and urgent service, should share any prize taken by any ships and vessels left behind after he had passed the limits of the station—thus showing clearly that a flag officer so long as he was on the station must share in the prize. Again, the proclamation set forth that any inferior flag officer quitting a station, except under the orders of the Commander-in-Chief, should have no share of the prize money taken by a vessel on the station after he had passed its limits. These carefully worded sentences, inserted in the Proclamation, he contended, plainly went to prove that, except in the cases mentioned, every flag officer was entitled to share in the prize, according to the rules of the naval service. The distribution of prizes, according to the custom of the naval service, was made over and over again in the years 1854 and 1855. In April, 1854, a Russian brig was taken in the Black Sea. In May, 1854, another merchant vessel was taken in the Black Sea. In July, 1854, coals were taken on the coast of Circassia. In August, 1854, a large timber raft was taken. In May, 1855, coals were taken in the Sea of Azoff, and three or four vessels were taken in the same month. In every one of those instances all the flag officers shared in the prize, although Admiral Stopford was at Malta and Admiral Boxer, superintendent of transports and chief officer, in the Bosphorus. As a matter of right they were entitled to share in the large sum granted in lieu of the produce of the captured 1537 stores at Kertch and Yenikale, just as much as they were entitled in these small cases to the amount realized upon actual sale. Now, for what purpose was this Parliamentary grant made? The whole case was this—the Government had taken the prize and it would have been very inconvenient to enter upon the question of value five years after the stores had been taken and used. Parliament did not treat this as a case of booty; it simply gave the grant to replace what it had taken; the grant was then divided under the rules of the naval service, and other officers would have been deprived of their just dues if it had not been so distributed. This was not a special grant in lieu of a prize; on that point there could be no mistake. The words of the Warrant were clear—
We hereby give and grant three-fourths of the said balance or residue to our Paymaster General on account of naval prize, in trust, to be distributed according to the rules of our naval service, and according to the terms of our proclamation of the 29th of March, 1854, in force for the distribution of naval prize.That was giving it according to the proclamation, and any other mode of distribution would have been extremely questionable. [Lord CHELMSFORD: That does not relate to conjoint expeditions.] The cases of Algiers and Acre were cases of conjoint expeditions. In that of Algiers the distribution was made under a special Order in Council, and in that of Acre, Sir Charles Napier took a share—in one half as brigadier general, having been engaged on shore, and a share in the second half as captain in the navy. Those were special cases specially provided for. In this case it was clearly laid down that the money was to be distributed in accordance with the rules of the naval service and the terms of the proclamation; and supposing they had only given the money to the captors of Kertch the rest of the service would have said, where was the proclamation of March, 1854, under which they were entitled to a share? And as to referring to the Court of Admiralty, the Warrant said that if any doubt arose it should be referred to the Board of Admiralty. The Board of Admiralty were accustomed to decide according to naval usage, and as there was no Act of Parliament to be interpreted no legal knowledge was required. Here the Warrant was quite clear, there was no doubt, and nothing for the Court to decide. As to the question about a conjoint expedition making any difference, that was cleared up by the Warrant from 1538 which he had quoted. The proclamation of March, 1854, was to be the guide; but the noble and learned Lord seemed to suggest that distribution should have been made in direct contravention of that proclamation.
§ LORD CHELMSFORDIs there anything about conjoint expeditions in the proclamation of March, 1854?
§ THE DUKE OF SOMERSETsaid, the proclamation reserved the order of distribution for conjoint expeditions; but when the Warrant came it referred to the proclamation, and directed the distribution of the naval portion to be made according to its terms and to the rules of the naval service. By those rules the inferior flag officers were entitled to share, and the rules could not have been referred to if it had been intended that they should not share. According to the words of the proclamation, the decision of the Board of Admiralty was to be final; and he had the authority of the Treasury for saying that the doubtful points to be referred to them had reference to Chelsea Hospital, and not to the navy. At the same time, he admitted that the words of the Warrant might bear another construction. It would not be unreasonable to take the Warrant in the sense that if, in three months, an application was made to the Treasury they should have such power as they pleased to review the decision of the Commissioners. Still he had no doubt that what had been done had been done in perfect sincerity towards the service, and that it was in accordance with the engagement that was entered into with the naval service in March, 1854. The noble and learned Lord had referred to a member of the Board of Admiralty as being interested in the distribution, he could assure their Lordships that Sir Frederick Grey had taken no part whatever in the consideration of this matter. He had purposely avoided having anything to do with it, and no agent on his part had applied to the Admiralty. He himself had never spoken to the Admiral about the matter until after the discussion in another place. The decision of the Board of Admiralty he thought was the right one; and, in fact, under the terms of the Warrant, and of the proclamation, no other decision, he believed, could have been arrived at.
§ LORD CHELMSFORDasked, whether the noble Duke had consulted the Law Officers of the Crown?
§ THE DUKE OF SOMERSETsaid, he had only consulted the solicitor of the Admiralty.
§ THE EARL OF HARDWICKEsaid, that Sir Frederick Grey was an officer of distinguished character and high honour, and no one could for a moment have thought that that gallant officer had improperly interfered in the matter. His noble and learned Friend (Lord Chelmsford) had rendered a public service in bringing forward this subject, for he believed it was the first instance in which any question had arisen under the Act of 1854. It was perfectly clear that the noble Duke had placed more reliance upon the proclamation than upon the Act itself; but it was clear the Act of Parliament constituted the law by which they must be guided. The proclamation could not run counter to the Act of Parliament; it could only be based on the Act. By the Act of Parliament joint expeditions of naval and military forces were distinguished from other cases. In the 7th clause the words were "general officers, flag officers, and other officers acting," and it was clear that the word "acting" ought to shut out from the distribution of the prize money officers who were not positively acting in the expedition, some of whom might have been at Malta and some at Constantinople. His noble and learned Friend had wisely advised the noble Duke to take the opinion of the Law Officers of the Crown, that there might be no doubt as to the manner in which the proclamation and the Act of Parliament were to be read together. It would certainly be very advisable to take some steps to obtain an interpretation which would be satisfactory to everyone concerned.
§ LORD CHELMSFORDpointed out that, according to the principles laid down by the noble Duke, Lord Raglan would have been entitled to a share in the distribution of this prize money, whereas that gallant nobleman made no claim, but allowed it all to go to Sir George Brown, who commanded the expedition.
§ THE DUKE OF SOMERSETsaid, he had, of course, no personal feeling in the matter, and if it were thought desirable, he should have no objection to take some steps for obtaining the opinion of the Law Officers of the Crown on the question.