MOTION FOR A PAPER. (Hansard, 20 July 1877)

THE EARL OF LONGFORD
moved for copy of Protest, dated June 29, 1877, addressed to the Secretary to the Treasury, for submission to the Government Departments concerned, by Major General Colin Mackenzie, C.B., on the part of claimants to the undistributed portion of the Kirwee Booty. The noble Earl said: It has unfortunately devolved upon other noble Lords, as well as upon myself, to bring before your Lordships at various times the case of the Banda and Kirwee booty, the claimants to which still call for justice. I have now 1551 to ask for further Papers to continue the series already on the Table, and I wish to call attention to the different modes in which cases of naval prize and military booty are treated, and to show how unreasonable it is that in one case the proceedings should be sure and clear, whilst in the other the course is complicated and uncertain. A disputed case of Navy prize is referred to the Court of Admiralty and judicially decided. A disputed case of Army booty is dealt with in Government Departments acting at their own discretion; disputes are frequent, and may become disreputable wrangles between the representatives of the troops and the representatives of the Crown. The inconvenience of such a state of things was recognized some years ago, and by an Act known as Lord Cottenham's Act, jurisdiction in Army as well as Navy cases was given to the Court of Admiralty, if the Crown should refer an Army dispute for the Court's decision; but this Act has availed little, because the troops have no right of appeal to this Court, and the officials—I do not say in pure, absolute officialism, although it looks like it—refuse to refer disputed cases to its judgment. This is the subject of complaint by the claimants to the undistributed portion of the Banda and Kirwee booty. The case of this prize has been a weary one to those concerned; but my narrative of it will not be long, and will be necessary to explain the unfair position in which those for whom I speak, principally private soldiers, have been placed, and why the Protest in my Notice has been made. During the Indian Mutiny several columns of troops, some large, some small, were employed in the field, sometimes at great distances from each other. One column captured this large booty—it was granted by the Crown as prize—and the question was then raised whether this column alone, or all who were engaged in different portions of what was the same operation, should share in this booty. The Government—Lord Palmerston's, in 1864—referred, not this precise question, but the general question of the rules for the distribution of prize, and adjustment of prize disputes, to a Royal Commission. The noble Earl (the Earl of Harrowby) was Chairman; I was a Member. "We had no difficulty in reporting that the Admiralty Court should be the same to the Army as to 1552 the Navy in all cases. The Government, without laying down a general rule, adopted the suggestion, and referred the case to the Admiralty Court, which decided the point in doubt, certain troops were named to share, others were excluded; but, in the course of the distribution, another dispute arose, whether certain funds which had come into the possession of the Government were included in the Royal grant of prize—the troops claimed the funds, the Government resisted. The prize agents acting for the troops proposed that the same Court which had settled one dispute in the cause should settle the other also, and that its decision should be final. I cannot conceive a more reasonable request. But this request has been persistently refused by successive Governments, India Office, and Treasury, and disregarded by Parliament, Lords and Commons alike. In 1872, the noble Earl who had been President of the Royal Commission asked your Lordships' opinion that, in accordance with the intentions of Lord Cottenham's Act, and with the direct recommendation of the Royal Commission, this and similar disputes ought to be referred to the appointed Court for decision. He was met by the Duke of Argyll, then at the India Office, who argued against this particular claim with all the advantage of official information, and with all the force of official assertion; he was supported by Lord Lawrence, a noble Lord formerly Governor General of India, who added the singular sentiment that—"If the case should be decided against the Government, it would be very inconvenient to the Indian revenue to pay." The House followed these authorities, and in disregarding my remonstrances adopted the view that it was a mere Departmental question of which the heads of Departments were competent judges, and the Motion fell to the ground. Much the same thing happened in the House of Commons; an imperfect discussion of the merits of the case, instead of attention to the general principle. And the claimants in this case have met with many difficulties—a contest between an outsider and office is tedious—the office can always say "to-morrow," and in this case to-morrow was 16,000 miles off. The original prize agents had left London; one of them had gone to New 1553 Zealand. The India Office consented to recognize a most respectable Committee of officers in their place; but when the respectable Committee became too importunate, the India Office would hold no communication, except with the regularly constituted prize agents, involving, of course, additional delay. Another instance—a Return was asked for in the House of Commons of the undistributed amount of this prize fund—somewhere in the India Office it was altered to undisputed, in which emasculated form it was ordered, and, of course, it was fruitless. In the House of Lords, a Return moved for by the noble and learned Lord on the Woolsack in 1873 has not yet been furnished, an Instruction from the India Office to the Government at Calcutta having been tacked on the Order of the House which produced by the end of 1874 a wrong Return, and when sent back for correction produced a Return dated May 1876, with all the old errors, and many pages of new error; but still withholding the information that was called for by this House. I do not say here that there has been deliberate intention to obstruct or embarrass the applicants in this case. Interviews have certainly been granted to them—their Petitions and Memorials have been received—the India Office, the Treasury, the Privy Council have had the case before them in some form or other; but all without the definite result that one judicial decision would have given. The dispute continues and will continue. I think that your Lordships will be of opinion that such disputes, which the alteration of a few words in Lord Cottenham's Act would secure, ought to be put to rest. Last year it was understood that an admitted balance of about £35,000 remained for distribution—now the announcement is made that unexpected claims, not stated, have absorbed it all, which has drawn forth the Protest for a copy of which I now move. I understand that the noble Marquess the Secretary of State for India will furnish the Paper required, with some improvements of his own to which I cannot object; but I regret that he, like his Predecessors, and I suppose like his Successors, does not see his way to put an end to such a controversy as this by obtaining a decision that must bind all parties.

§ THE MARQUESS OF SALISBURY
sympathized with the persistency with which gallant Officers, during so many years—approaching half a generation — had pressed this case upon the attention of successive Governments. He could understand that they felt earnestly for their brethren-in-arms who thought themselves deprived of their due; but it seemed to him that with military decision they had, in coming to a conclusion, overlooked the defects of the claim. He had no objection to produce the Protest to which the Motion of his noble and gallant Friend referred; but he could not admit to be just the censure which the noble and gallant Earl had passed upon various the Departments with which the claimants had had to do. The claim put forth had been rejected by several Departments during a period stretching over five or six Governments, and by both Houses of Parliament; and it was therefore worthy of his noble and gallant Friend's consideration whether it was not really possible that the demand was ill-founded. It was originally made in Lord Canning's time; and after proper advice had been taken with reference to it the Government of India under his guidance determined that it was inadmissible. Lord Canning's views were confirmed by Sir Charles Wood. The case was brought up more than once in Parliament. At last it was finally disposed of—or disposed of at least for a time—in this way: it was submitted to the Duke of Argyll when he was Secretary of State for India, and the claim being rejected by him the Treasury was appealed to in the hope that a more impartial inquiry might be conducted by it, with the Government of India appearing before it as one of the parties in the case. The Treasury thereupon sat as a tribunal, on which were Mr. Gladstone, Mr. Lowe, Mr. Stansfeld, and the Marquess of Lansdowne: and, their verdict also was that the claim was inadmissible. It was impossible to say that most careful consideration had not been given to the case, and he could not see how there was 1555 to be an end to the controversy if the decision which had been arrived at was not to be accepted. The case upon which his noble and gallant Friend relied was simply this: that when the town of Kirwee was taken it was found that the Eao was in possession of promissory notes of the Government of India to the amount of £250,000. That sum was claimed as lawful prize for the soldiers. But a prize had to be captured by the captors, and the captors did not succeed in capturing this particular booty. Even had they obtained the promissory notes themselves, they would only have been entitled to what they were worth; and as the property had been confiscated some weeks before by the Government of India, it did not belong to the Rao at all, and therefore could not have passed into the possession of the Army. In other words, the Rao, having no right to the money, the troops could not obtain from him any right to it. As a matter of fact, however, the promissory notes had never been found—all that was captured being some memoranda proving that the Rao had, at one time, been in possession of the money. He would not enter into legal or semi-legal arguments arising out of the case, but their Lordships would see that the refusal of this claim by successive Governments was by no means so inexplicable or unaccountable as his noble and gallant Friend seemed to suppose. To the demand of his noble and gallant Friend that the case should be referred to a judicial tribunal, his answer was that they could only refer to a judicial tribunal that which was matter of law, and that in the matter of prize money there were no legal rights whatever. The Crown exercised its bounty and that was all. It was true Prize Courts were set up; but all they did was to determine how the bounty of the Crown was to be distributed. Between the Crown and the Crown's own forces in the field there was no law whatever; and how far the bounty of the Crown was to extend was clearly a question of policy which could only be decided from time to time by the Government of the day. In the present case a decision had been given after the most lengthened and careful consideration by successive Governments and successive Parties, and to that decision it seemed to him his noble and gallant Friend might at length bow.

§ THE EARL OF HARROWBY
observed that the merits of the case had been very fully discussed at different times; but what had never been fully met was why the question should not have been referred, like Admiralty cases, to a judicial tribunal, instead of being disposed of by a Department of the State which was interested in arriving at a particular decision. No doubt prize money was bounty; but it had long been the custom in the Navy to submit to a legal tribunal the question as to the occasion and mode of its distribution. Such a course had been recommended for the Army by the Royal Commission, over which he had the honour of presiding, and had been adopted in one case, and until the same system was adopted generally there would always be a sense of wrong and a feeling of dissatisfaction. Therefore, he regretted that Parliament—both Houses—should have refused, and still refuse, to give satisfaction to the claimants by letting them have a legal decision in their case.

THE EARL OF LONGFORD,
in reply, said: The noble Marquess the Secretary of State for India has not met my case at all. The troops concerned will still say that prize granted to them by the Crown has been withheld from them by Crown officials. They are not proceeding upon bare military claims put forward by themselves; they have most eminent legal opinions—[Names read]—that their claims are well founded. Of course, the Crown officials will continue to assert that the funds claimed are not properly prize, and the troops will not be satisfied with their arbitrary decision.

THE LORD CHANCELLOR
agreed with the noble Earl (the Earl of Harrowby) that were this a legal question it would be desirable to refer it to a legal tribunal. But was it a legal question? If it was not, of course a legal tribunal was not the tribunal to which it ought to be referred.