HL Deb 19 July 1872 vol 212 cc1404-11

, in moving an Address praying that the question in dispute in reference to the Kirwee Prize Money may be referred to the cognizance of a judicial tribunal said, that while questions relating to prize money at sea were decided by the Court of Admiralty, whose judgments were guided by well known rules, and according to a long series of judgments, yet as regarded prize money on land no jurisdiction till lately had existed, and as regarded its distribution the practice was still practically in a state of complication and confusion. The long dispute about the Kirwee booty was a proof of this. But what he desired to submit to their Lordships was that the question regarding which there was contention between the troops and the Government could be settled satisfactorily only by a judicial tribunal. The conviction that to such a tribunal the appeal in such cases ought to lie was what had led to the passing of the Bill introduced in 1834, and now known as Lord Cottenham's Act, which pointed out the Court of Admiralty as the proper jurisdiction for such cases. Again, the Royal Commissioners on Army Prize Money, who made their Report in 1864, unanimously re- commended that questions such as those raised in respect of the Kirwee booty should be referred to a judicial tribunal, and under the sanction of Lord Palmerston a portion of these claims had been accordingly so referred. The present Treasury refused to follow the precedent. It was against this that the petitioners protested, and he thought with justice. On the merits of their claims he would not enter. They should be investigated by an open Court, acting on fixed principles. The mere arbitrary decision of the Treasury could never give satisfaction. He begged to move the Address of which he had given Notice.

Moved that an humble Address be presented to Her Majesty in the matter of the Kirwee Booty, praying Her Majesty to refer the questions in dispute between the troops entitled to the prize money and the Indian Department to the cognizance of a judicial tribunal, under the provisions of the Act 3d & 4th Vict. cap. 65. sect. 22. or of the Act 3d & 4th Will. IV. cap. 41. sect. 4., and in accordance with the unanimous views expressed by the Royal Commissioners on Army Prize in the 7th paragraph of their Report dated 3d May 1864.—(The Earl of Harrowby.)


said, he did not mean to contest the proposition with which his noble Friend (the Earl of Harrowby) had introduced his Motion; though he did not say he assented to it, because he thought there was an important difference between captures by sea and captures by land. He quite agreed, then, that it would be well that there should be some fixed rules by which booty captured by the Army should be decided as well as prize taken by the Navy; but these general conclusions had nothing to do with the provisions of the statutes to which the noble Earl had referred. It appeared to him the questions raised between the troops making the remaining claim in respect of the Kirwee booty and the India Department were not questions for a court of law, or which ought properly to be decided by a judicial tribunal, but were questions which must be decided by the Government on a calm consideration of the rights of the troops on the one hand and those of the Indian taxpayer on the other. His noble Friend had refrained from going into particulars, but he felt it necessary to do so very shortly. The heroic efforts made by the troops in India, acting in comparatively small bodies, during the operations for suppressing the Mutiny, would shed im- perishable lustre on their name; but it was rather a curious circumstance that the troops which saw most service on the occasion in question, and which suffered most, really received the least amount of booty; for instance, in those great contests for the Relief of Lucknow and the capture of Delhi the booty taken was of very small value; while an exceedingly large share of booty fell to the lot of the troops engaged at Kirwee. The troops, on whose behalf this particular claim was set up, were 2,000 in number, and in the engagement that took place outside the town their casualties were only five killed and 29 wounded. Subsequently the Rajah surrendered Kirwee—not to these troops, but to Mr. Mayne, a civil officer, and a party of police. After the surrender, this small military force came up and claimed the surrender as a military capture. When possession was taken of the place upwards of half a million of money and jewels were found there; and after some communications on the subject the authorities determined to treat the capture as a military one. As their Lordships were aware, about £500,000 had already been paid to the officers and men for the booty; but the claim, the subject of his noble Friend's Motion, was a demand for a further £500,000, not of money in the hands of the Government, but of money which, if the demand were complied with, must be raised from the Indian taxpayers. How had the claim arisen? Among the booty taken at Kirwee were jewels and uncovered rupees or bullion. Now, their Lordships would bear in mind the accepted doctrine that all such prizes belonged to the Crown, and that it was only by mere favour of the Crown that any portion of it was given to the troops. As a consequence of that doctrine, until any booty was declared to be prize money it continued to be in the possession of the Crown; but, notwithstanding that, it had been usual with the Crown to allow interest on it, not merely from the date of the declaration of the prize, but from the date of the capture. Some of the money in this case was taken in 1858; but long and intricate questions had to be decided and the declaration that the booty was prize money was not made for four or five years after. He thought this mode of dealing with the Army—allowing interest on the booty from the day of capture—was a just one, but obviously there was this limit to it—that the Government were not bound to pay interest on any booty of which they were not themselves in profitable possession. That was the principle acted on in this case. On all the booty of which the Government were in profitable possession interest was paid from the time of capture; but the uncovered rupees and the jewels were not sold till about 1862, and consequently the Government had not been in profitable possession of them before that time. The claim now made was for interest on both from 1858, which, with another claim to which he would refer, would amount to nearly £600,000, in addition to the £500,000 which the officers and men had already received. Considering the small number of troops who had been so fortunate as to get this very large amount of money, he must say that some of the items by which the total amount now claimed was made up were somewhat extraordinary. It appeared that the jewels were sold for a smaller sum than that at which they had been originally valued by a native merchant at Calcutta; and a demand was made by the troops for the difference between the original valuation and the sum for which the jewels were sold. An officer who had come to him to advocate those Kirwee claims was indignant at finding that such an item as that had been included. Another item had been created in this way—among the booty at Kirwee were notes of credit or Government certificates, which the Government, in order to punish the Rajah, had cancelled. When that was done the notes ceased to be of value to him; yet because those notes were found at Kirwee the troops now claimed the value of them. In his opinion such a claim was simply preposterous. What the Government had to consider was whether the taxpayers of India ought to be called on to pay the officers and men such claims as those. Would such claims be for one moment admitted by the people of India if they had a deliberative assembly of their own? Certainly no such claims would be listened to if made against the Treasury of this country, and if so they ought not to be listened to when made against the Indian Treasury. The masses in India was very poor—they had to endure a poverty such as we had no conception of in this country. Not a week passed without facts coming before him which most seriously impressed him with the difficulty of carrying on the government of that country, and at the same time avoiding the imposition of burdens which the natives were unable to bear. He hoped that, having heard all the facts, his noble Friend would not feel it necessary to press his Motion.


wished to say a few words, as a Member of the Royal Commission of 1864. What their Lordships were asked to do was not to decide whether a certain body of troops were or were not entitled to certain prize money, but to address Her Majesty that the claim may be referred to a judicial tribunal. The troops complained that they had not received that which Her Majesty had conferred upon them—there was, therefore, a right set up, which, though not a legal right, ought to be considered; and the inquiry sought was strictly in accordance with an Act of Parliament and the recommendations of a Royal Commission. Both in Lord Cottenham's Act and in the Report of the Royal Commission it was distinctly set forth that such claims as these should be referred for the decision of a judicial tribunal. It was true that a large distribution of this prize money took place in 1866; but the amount was less, instead of more, than the troops had been expecting for upwards of six years—namely, £450,000; whereas the Royal Warrant of 1864 laid it down that they were entitled to £700,000—and the agents naturally inquired for the balance. Legal opinions so strongly supported them that they continued to press their claims. Sir John Coleridge, Mr. Vernon Harcourt, and others stated their unanimous opinion that precedent justified the distribution of the notes cancelled by the Indian Government. Therefore the claims, so far as they related to the notes, were not quite so absurd and groundless as the noble Duke opposite (the Duke of Argyll) appeared to represent. Taking all the circumstances into consideration, he believed that no decision of this question would give satisfaction other than that of a judicial tribunal. A court, constituted of Mr. Gladstone, Mr. Lowe, and the Secretary to the Treasury, met in the middle of the Irish Church controversy to consider this subject; but the decision of such a court could not be received with confidence by the country. It was the duty of the Secretary of the Treasury to refuse everything. An inquiry by a judicial tribunal would be useful not only in this case, but as a means of arriving at rules which might govern other cases in the future.


said, he thought he was thoroughly conversant with the facts of this claim, and he felt bound in honour to say that he did not think any real case was made out for the troops. If ever a primâ facie case had been made out in their favour, he should not have hesitated to say that it would be right and expedient that their Lordships should endeavour to allay the discontent that had so long existed, by referring the case to some other tribunal; but it appeared to him to be perfectly clear that they had no case. To take the larger claim—that made on the notes of credit, and which amounted to about £250,000—it was a claim made against notes which were securities for a Government debt. The Chiefs of Kirwee kept a large sum in the shape of these notes, and it was well known that immediately those Chiefs went into the rebellion the Government notified that those notes were confiscated. This occurred some months before the battle of Banda, and still longer before Kirwee surrendered. Once there was an announcement that these notes were confiscated, they ceased to be of any value whatever. The paper, therefore, upon which these notes were printed was practically waste paper. But, further, these notes were not even found in the Kirwee booty, nor had they been found to this day. How, then, in common sense could they be claimed as a portion of that booty? Then as to the question of interest. The Government took charge both of the jewels and the coin in the interest of the Force, and not for any advantage that could accrue to itself. Until the jewels were sold and their value realized no interest could possibly accrue; but the moment the money was realized interest was allowed upon it. He might further say that the great delay which had arisen before this prize money came to the Army was through no fault of the Government of India. The main cause of the delay was the conflict of views and of interests between the different bodies of the Army; and he must observe, with all deference to the decision finally given in favour of the Force which made the present claim, that the decision was not received with satisfaction in India. Without derogating in the slightest degree from the merits of that gallant Force, in the opinion of the people of India those who bore the burden and heat of the day got very little for their pains, while those who had little to do were uncommonly fortunate. It would be very desirable that some plan should be adopted and distinct rules laid down clearly embodying the principles upon which prizes should be distributed. The principle which applied, and justly applied, to the Navy, was not, in his opinion, applicable to the Army, nor was it for the public interest that the same rules should govern both cases. Why on earth should a small body of men who perchance might have hit on a prize receive all the money, while large bodies of troops who for strategical reasons were moving in different parts of the country, and were bound so to move by the orders of their Commander-in-Chief, had no share of it? The question, as the noble Duke had observed, was between this body of troops and the taxpayers of India, where there was the greatest difficulty day by day in making ends meet. Of course, that argument would be of no value if there was a clear case in favour of the troops: but in a case where so much had been already done by the Government of India, the Secretary of State for India and the Government of England were alike agreed that this claim was not founded in reason and justice, and therefore their Lordships ought not to interfere.


observed that a fact seemed to have been lost sight of in this discussion—namely, that there could be no prize money, as there had been no war, and no belligerents; and that all the property in India was either that of Her Majesty's subjects or of her allies; and there was no enemy's property, since we had not declared war against anyone, nor had it been declared against us, and therefore the grant of prize was in this more than in any case the mere bounty of Her Majesty. He differed entirely from the opinion that the rules with regard to prize on land should be assimilated to those with respect to prize at sea. There were many very good reasons for the difference, and an assimilation of the rules would give a great sanction to the practice of plunder on land. That would be most undesirable, on account of the misery which would be entailed in warlike operations.


My Lords, without wishing to prolong this debate, I desire to make an observation with respect to some remarks which fell from the noble Duke (the Duke of Argyll). It should not be forgotten that it is now 15 or 16 years since this question first arose, and I would ask your Lordships how many of the original claimants are now alive to receive the money? I would suggest, as well worthy of consideration, whether some general regulations should not be drawn up and some rules laid down applicable to the distribution of prize of war, and for that distribution to take place soon after the prize is taken; for most of the men alleged to have a right to the money in the present case have long ceased to exist.


, in reply, would remind their Lordships that the Royal Commission over which he had the honour to preside was specially called together for the very purpose of getting rid of the uncertainty of which the illustrious Duke complained. If their recommendation had been acted upon, there would have been fixed rules and regulations. The Treasury had no rules, professed to follow no precedents, and it was for that very reason that the Royal Commission recommended that the Act of Parliament which Lord Cottenham had introduced for settling those claims should be called into action. If they refused to refer matters to the tribunal which Parliament had sanctioned, they allowed things to return to their old uncertainty. Of course, it was not for him to press a question like this against the feeling of so many noble Lords; but he thought, nevertheless, that it was a great misfortune that such matters, in which the feelings and interests of the British Army were involved, should be referred back to the dark chambers of the Treasury.

Motion (by leave of the House) withdrawn.