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r.r 0 -W W TALK.



THE JBANDA AND KIRWEE BOOTY. Judgment was on Saturday delivered in this long- pendpg case by the Right Hon. Stephen Lushington. The jurisdiction of the Court of Admiralty to decide on the distribution of booty captured by land forces exclusively was conferred upon it by the 3rd and 4th Vie., c. 65, which enacts that the court shall have jurisdiction "to decide all matters and questions con- cerning booty of war which may be referred to it by the Privy Council, and that its judgment shall be binding upon all parties. The circumstances under which the claim arose were these:—The land forces, consisting of her Majesty's troops, and of troops of the East India Company, were, for the suppression of the mutiny, organised in three columns, termed re- spectively the Central India Field Force, the Saugor and Nerbudda Field Force, and the Rajpootana Field Force, under the respective commands of Sir Hugh Rose, Major-General Whitlock, and Sir Henry Roberts, since deceased. In the course of the operations which followed, certain property was captured at Jhansi, Calpee, and Gwalior, by Sir Hugh Rose's force, of the estimated value of 4,90,000 rupees; at Banda and Kirwee, by Sir G. Whitlock's force, of the estimated value of 70,00,000 rupees; and at Ahwah, Kotah, and at Buenos, by Sir H. Robert's force, of the estimated value of 1,82,000 rupees. For the distribution of this property, it had been pro- posed that the whole proceeds should be thrown into a common fund, and be distributed equally among the forces under the command of Sir H. Rose, Sir G. Whit- look, and Sir H. Roberts. The prize agents of Sir G. Whitlock's force had preferred a claim that the pro- perty captured at Banda and Kirwee should be granted exclusively to that force. Claims to partici- pate were preferred by the late Lord Clyde, as Com- mander-in-chief, on behalf of himself and his personal staff; by Sir Hugh Rose, on the ground of his force having co-Operated in the actions or movement of the troops which led to the capture; also by Major-Gene- ral Smith, General Roberts, Colonel Middleton, Major Osborne, Colonel Hinde, Colonel Keating, and others. The great principle which is recognised as the basis of the prize-law is, that all prize taken in war belongs absolutely to the Crown, but for more than a century and a half the Crown has granted the prize to the captors. The learned judge at great length laid down the peculiarities of the particular war in which this booty was captured. It was no ordinary war, he said; its ob- jeef; was to suppress a mutiny, and a rebellion into which that mutiny had developed; a whole country had to be pacified. This called for military operations ramifying in different directions, yet brought to bear on a com- mon end. The learned judge gave a most luminous review of the principal instances of booty taken on land, in order to discover what, if any, had been the accustomed mode of its appropriation by the authority of the Crown, drawing his information, where practi- cable, from original documents, furnished to him by the Treasury and the public offices. The oases referred to were Egypt, 1801; Waterloo, 1815; Deccan war, 1817-18; Barmah, 1824-26; Bhurtpore,1825-6; Khelat, 1839; Scinde, 1843; Mooltan, 1848 9; Delhi, 1857 Lucknow, 1857.8; Dhar, 1857. Having examined these cases, the learned judge laid down as the rule to be adopted that of actual capture, but this, if carried to an extreme, would, he said, produce the very results, to prevent which is the primary object of having a rule at all. To confine the enjoyment of booty to those who have actually laid hands upon the property would be simply to give legal sanction to lawless plundering. On the other hand, to distribute it indiscriminately would be to discourage personal efforts, and in many oases to dissipate the booty till it became insignificant. The line has to be drawn somewhere, and should not be drawn arbitrarily. He had come to the conclusion that ithe course most analogous to the rule of the naval service, most in conformity to military usage, and most likely to work satisfactorily, in the case of an army consisting of several divisions, was to draw the line between division and division. An admirably drawii detailed history of the operations of the three divisions of Sir Hugh Rose, General Whitlock, and Sir Henry Roberts was given. In respect to the claim of Sir Hugh Rose, that officer had to contend against the broad facts, that throughout the campaign the two forces were separated from each other, on an average by about 150 miles; that no junction between the two was ever effected; that at the time of the capture of Banda Sir Hugh Rose was encamped 160 miles off, at Jhansi, preparing to march on Kalpee; and at the time of the capture of Kirwee he was about 120 miles off, at Calpee, just setting off with the utmost speed in the opposite direction, the direc- tion of Gwalior. The claims were put forward on the ground of constructive captor of the booty taken in both places, and on the two grounds of association and co- operation. The learned judge decided that there was no co-operation nor association on the part of Sir Hugh Rose which led t) the capture of the booty, and he accordingly pronounced against it altogether. The claims of General Roberts, General Smith, and others who claimed as officers under Sir Hugh Rose, were of course disposed under this decision. Major Osborne was political agent of the Government, and had the entire command of the Maharajah's forces, and most successfully raised troops in various parts of the country. His achievements were of the most gallant description. He displayed great ability and rendered very valuable services; but his services were not, in the opinion of the judge, such as to entitle him to share in the Banda and Kirwee booty, inasmuch as the places captured by him had not conduced to the cap- tare of these placet". The same remark applied to Colonel Hinde, of Nagode. With respect to Colonel Keating, he was the Colonel of the 50th Regiment Madras Infantry, which, during the whole of the operations, formed part of General Whitlock's forces, and was under his orders though not present at the capture of Banda or Kirwee, but the claim, of Col. Keating and his regiment was admitted as part of the general's force. The claims of General Wheeler, in command of the Sa.ugor District and Garrison; of General Carthew, and the Fattehpore movable column engaged in the lower part of the Doab; of General Maxwell, also in command of a moyable column in the Doab, were disallowed, on the ground of their not having given that degree of co-operation which he con- sidered necessary to entitle the forces to a share in the capture. With respect to the claim made on behalf of the late Lord Clyde, his lordsbip was appointed "Com- mander-in-Chief of all her Majesty's land forces serv- ing in the territorial possessions of the East, and his absence from the scene of capture was immaterial. The court, therefore, overruled the claim put for- ward on the part of General Whitlock to the whole of the booty on the ground that his forces were not a portion of the army commanded by Lord Clyde. The same decision was given with respect to General Mansfield and such members of the personal and general staff as were in the field with Lord Clyde. At its close the learned judge said the result of this judgment then is, that I declare Lord Clyde and his staff, personal as well as general, entitled to share in the booty captured at Banda and Kirwee; and, sub- ject to this right, I award the whole of the booty to Gen. Whitlock and his forces, including amongst the latter the troops under Colonel Keating and any other troops left by General Whitlock en his march, but who at the time of the capture formed a portion of his division, and were still under his command. I dis- allow all other claims. The judgment ocoupied more than three hours in its delivery, and was attentively listened to throughout by an unusually large attendance of barristers, and a number of ladies, some of whom occupied seats on the bench, and others in the galleries of the court.





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