four hours after the receipt of the papers enclosed in your despatch, the Lords Commissioners will no longer impute to us any intention of seeking to strengthen our case by new arguments, or of needlessly delaying the issue of these papers. Sir, Enclosure 2. Major Clifton to the Assistant Secretary to the Treasury. Army and Navy Club, 12 March 1864. 1. I HAVE the honour to acknowledge the receipt, on the 16th ultimo, of a packet* (which was dispatched from the Treasury Chambers on the 16th January, but was unfortunately detained at my Club for upwards of four weeks), containing a very voluminous statement recently received from His Excellency Sir H. Rose, who, after five years' tacit relinquishment of his claim, has at length come forward to assert a right for himself and the troops who served under him in 1858, to share in the Banda and Kirwee Prize-money. 2. It is well known to the Lords Commissioners of Her Majesty's Treasury, and has been admitted by them in a Minute, dated 16th April 1862,† that ample opportunity had been afforded two years ago to the constructive claimants to set forth their case, and had been so employed by them. It cannot therefore be pleaded by His Excellency Sir H. Rose, that he had not hitherto been heard in this matter. We have always believed, on the contrary, that we have reason to complain that, instead of coming forward openly at the first with a public and explicit statement of his case, Sir H. Rose has permitted the claims of his force to be informally maintained in documents prepared by able and influential advocates, and not communicated to the actual captors, until the authorities had committted themselves to a declaration favourable to his suit. It is clear, moreover, that Sir H. Rose cannot have suspended, as he intimates, the formal exposition of his claim until the authorities had arrived at an abstract determination to apply the principle of constructive capture to the Banda and Kirwee case. For, in the first place, constructive capture presupposes a constructive claimant just as a decree affirming the law of primogeniture presupposes a first-born child. And, in the next place, no such abstract decision in favour of the principle of constructive capture has ever been recorded by the Lords Commissioners of Her Majesty's Treasury, and, least of all, prior to the 12th July 1862, at which date Sir H. Rose admits that he took the first step, in a letter to the Government of India, to formalize his claim, although he afterwards deferred his appeal for 12 months, and, if not ably protected by his advocates in England, would thus have allowed judgment to go by default, as indeed it ought to go at the present time. So far from passing a decision at the date when Sir H. Rose first addressed the Government of India on the subject of his claim, in favour of the principle of constructive capture, the Lords of the Treasury, in their Minute of 4th January 1862, had recorded an opinion of a directly opposite tenor. The great delay, therefore, which has occurred on the part of Sir H. Parl. Papers, No. 30, Rose in preferring a formal claim to participate in this booty, has not in any way been page 70. satisfactorily explained; and I would respectfully submit, that the reception, at this extremely late date, of a further statement from that distinguished officer, is extremely unfair to the actual captors, who might justly solicit a corresponding delay of at least several months to answer a document of such unusual length, containing in some respects new allegations and new arguments, which, perhaps, are only to be refuted in all points by the production of additional documents, for which a reference to India might be requisite. 3. In illustration of this remark, I would beg particularly to refer to the non-production of the very important letter addressed by Sir Hugh Rose to the Chief of the Staff in April or May 1858, together with a similar letter from Sir Robert Hamilton, about the same date. These letters, for copies of which I applied to your address nearly 12 months ago, are alluded to in a despatch from Sir W. Mansfield to the Government of India, dated Head-quarters, Futtehghur, 2nd June 1858. 4. Sir W. • Owing to its unusual bulk, the porter had omitted to forward it by post to my address in Wales. + Extract from Treasury Minute, April 16, 1862: "My Lords have afforded similar opportunities to other claimants for a participation in that booty, and having now before them a sufficient statement of the facts on both sides to enable them to form a judgment, &c." See Parl. Papers, No. 11, pages 26, 27. Extracts from the Minute of the Lords Commissioners of Her Majesty's Treasury, dated January 4 1862: "My Lords would hesitate, without further investigation, to adopt in the face of the opinions of the eminent jurists above cited, the principle of constructive capture as applicable in its strict and generally understood sense to the Kirwee booty." And again, the course proposed "would be founded on the acknowledgment that no claim exists by the strict laws of constructive capture." (Para. 9.) (Para. 13.) See Parl. Papers, No. 12, page 33. Appendix E to 4. Sir W. Mansfield's letter, written in the very week in which Kirwee fell, is so clear an explanation of the real nature of the combination which existed at the time, not Lord Clyde's Memo- between any two particular columns, but between the several columns acting in the randum of February Central States of India, that I beg permission to insert it for the special consideration of the Lords Commissioners of Her Majesty's Treasury. 8, 1862. (E.) EXTRACT from a Letter from the Chief of the Staff to Colonel Birch, C.B., Secretary to Sir, Head Quarters, Futtehghur, 2 June 1858. I HAVE the honour, by the desire of the Commander-in-Chief, to forward, for submission to the Right Honourable the Governor-General, two despatches received by me from Sir Robert Hamilton, Bart., and Major-General Sir Hugh Rose, K.C.B., late commanding Central India Field Force, together with my replies. It is obvious from the tone of the former, that Sir Robert Hamilton and Sir Hugh Rose do not appreciate the calls made for troops in other parts of the empire, beyond the sphere of their immediate observation. This is very natural, and not a subject of remark, excepting that the attention of the Governor-General should be drawn to the circumstance. Sir Hugh Rose dwells on the fact of his having had no reserves. This is hardly an accurate statement. The troops at Mhow and the Rajpootana column gave him an effectual support on his left flank, and kept his direct communications by the Agra road free, as shown by the detachment of one of Major-General Roberts' brigades to Jubbulpore, under the orders of his Lordship, when Sir Hugh Rose became alarmed for his rear. On his right flank he was in like manner assured by the laborious march of MajorGeneral Whitlock's brigades, which actually operated in Banda, in time to render the capture of Calpee, aided as Sir Hugh Rose was by a column formed in the Doab, to cooperate with him from the left bank of the Jumna, comparatively easy of accomplishment. (signed) W. R. Mansfield, Major-General, Chief of the Staff. 5. It will thus be seen, that Sir Hugh Rose (and Sir R. Hamilton with him) had complained shortly before the fall of Kirwee, that no troops were co-operating with the force under his command; and Sir W. Mansfield replies, that the divisions of General Roberts, of General Whitlock, and of Lord Clyde, together with the troops at Mhow, were all acting in combination with him. It cannot be questioned that in justice to the Force which I represent, this very important contemporary testimony from Major-General Rose and Sir Robert Hamilton ought not to have been kept back, as it seems to conclusively determine the whole question; for while Sir W. Mansfield's despatch only recognises a general combination between Generals Rose, Roberts, Whitlock, and Lord Clyde, with the Mhow troops, the testimony of Sir Hugh Rose himself avails to show that there was no practical co-operation during the whole of the transactions at Banda and Kirwee, between his division and any other force. 6. I would now observe in turning to the allegations contained in this lengthy document, that the reasoning of His Excellency Sir Hugh Rose, apart from the voluminous and frequently irrelevant details with which it is encumbered, appears to resolve itself into two arguments: I. That it is not just that the troops which actually took the Prize, on which occasion there was no fighting, should alone share in it, to the exclusion of the Central India Field Force, which was far more engaged, and lost far more. II. That without the co-operation of the Central India Field Force, Banda and Kirwee would not have been taken by Sir G. C. Whitlock's Column. 7. (I.) The first argument does not really affect the question; for prize of war, Mhow (Indore) must not be confounded with the Mhow (Rannypore), in Bundelcund. 8. Compared, however, with the circumstances under which the rich booty of Dhar has been shared by the troops who now claim, through Sir Hugh Rose, to participate in the Kirwee Prize, it cannot be alleged that this booty was by any means an easy capture. It was the direct result and fruit of the gallant action of Banda, which, according to the judgment of Lord Clyde, ranks among the best achievements of the war, and in the consequent advance on Kirwee the casualties from sickness in the Royal Corps reached the fearful ratio of 42 per cent. Employing, therefore, the argument suggested by Sir IIugh Rose, and assuming that the justice of the Crown can only desire to dispense its bounty according to precedent, as interpreted by competent authority, and with equal favour to all parties, I venture still to appeal to the impartiality and consistency of Her Majesty's advisers, and to respectfully inquire whether it can be considered right and reasonable that the same troops which so easily captured Dhar, having benefited by the strictest principle of actual capture in the allotment of that rich prize, to the exclusion of their own comrades and associates only two marches distant from the place, should also be admitted to participate on a new and unprecedented construction of the principle of joint capture in the Kirwee Booty, captured at the distance of nearly a month's march, on a separate and remote line, by an isolated and distinct force, with which from first to last they were never in contact or conjunction. The value of the Dhar Prize, with reference to the amount realised and the paucity of the troops who captured it, will be relatively as large as the Banda and Kirwee Booty, if this latter property should be granted to the actual captors. only. 9. II. I would now turn to the second ground on which Sir H. Rose appears to rely in preferring his claim to share in the Banda and Kirwee Booty, viz., that he co-operated with Sir G. Whitlock at Saugor, in the intended combination for the relief of Chirkaree, and in the actions gained by his division at Jhansee and Calpee. 10. A careful examination of the original instructions given both to Sir G. Whitlock and Sir Hugh Rose will show that Saugor was not the primary destination either of the Madras or Bombay columns. Paras. 4 and 5, of Mr. Anderson's Letter, dated Bombay, 12 December 1857, 4. This Government knows little or nothing of the internal and political condition of the country north of the Nerbudda, and the Right Honourable the Governor in Council thinks it would be very inexpedient for the Government to lay down the plan of a campaign for the column under your command; but his Lordship in Council would remark, that Jubbulpore lies altogether to the eastward of the line of operations which he conceives your column should undertake. 5. It appears to the Right Honourable the Governor in Council that Jhansi and Saugor, or rather Nowgong, are the points which you should consider as the destination of your force, rather than any place further to the East, and that from these points you will be able to co-operate with the Commander-in-Chief, and to cut off the retreat of the Gwalior Contingent, or of the Dinapore mutineers, or of any other rebel force which may endeavour to fall back upon Bundlecund and the strong country north of the Nerbudda. Instructions of the Governor-General, describing the intended sphere of Sir G. Whitlock's operations. It is the wish of the Governor General in Council that the force should be directed through the Nizam's country to Nagpore, and eventually to Jubbulpore. Whether it will be necessary to call the force further beyond the Nerbudda to Saugor or elsewhere is yet uncertain. It must depend upon the work which the column from Bombay may have in hand in Rajpootana or in the western portion of Central India, after it shall have assembled in the month of January, and upon the course of events in Bundelcund, Central India, and Oude, which may possibly occupy the force in Bengal, and render it necessary to leave the Saugor territory to the care of the Madras column.* 11. So that there is no real ground for the statement of Sir Hugh Rose in speaking of his march to that place: "The scene of my operations was the same as that assigned to Sir G. Whitlock." 12. The order to move upon Saugor, for the relief of that station, both in the case of General Whitlock and General Rose was supplemented on the original instructions delivered to those officers, and as Sir G. Whitlock's advance was unavoidably delayed, the * In this extract, although it may be said that some kind of mutual relation was contemplated between the Madras and Bombay columns, it is evident that precisely the same degree of association existed between the force from Madras and the force from Bengal. If, on the one hand, Sir G. Whitlock's movements were to be determined by the operations of General Rose in the west of Central India, on the other hand, his tactics were to be influenced to precisely the same extent by the successes achieved or the difficulties encountered by the army of Lord Clyde in Oude. Rathghur, Barodia, pore. the duty fell to the share of Sir Hugh Rose, by whom it was promptly and ably executed. 13. As to the enemies whom Sir Hugh Rose encountered and overthrew, four months before the capture of Kirwee, in the neighbourhood of Saugor, their force was too insignificant to have offered any serious impediment to Sir G. C. Whitlock's advance. It is unnecessary, therefore, to make any further comment upon that part of Sir H. Rose's statement which relates to his advance upon Saugor, and his operations in those territories. 14. There appears to have been, however, a far nearer approach to co-operation at a later period, when Sir H. Rose exchanged one or two notes with Sir G. C. Whitlock with respect to a combined movement, under instructions from Lord Canning, for the relief of Chirkaree. But for this portion of his argument I cannot do better than refer to the clear and unanswerable remarks of Mr. H. Willoughby, of the Indian Council, extracted Parl. Papers, No. 16, from the series of papers which have been laid before Parliament. page 48. "It is in evidence that active co-operation between Sir H. Rose's and Sir G. Whitlock's columns was found to be practically impossible. For when the Governor-General desired that the two columns should, if necessary, act in concert, "for the purpose of freeing the loyal Rajahs of Chirkaree, Punnah, and Rewah," and intimated his wish " that this object should be considered paramount to the operation against Jhansi," we know that Sir Hugh Rose, with the concurrence of Sir R. Hamilton, continued his march on Jhansi in an opposite direction to that in which Sir G. Whitlock was marching. Had the GovernorGeneral's orders been complied with, the present question would probably not have arisen. They were, however, for good and sufficient reasons disregarded; the contemplated cooperation between the two columns did not take place, and eventually the GovernorGeneral himself approved of his instructions having been departed from.' 15. As the projected combination of the two columns had thus proved to be impracticable, the whole case of Sir Hugh Rose falls to the ground. The Madras and Bombay Divisions were not parts of a combined force,--and the fall of Kirwee was not the result of their combined operations, and the capture of this booty was simply and solely the fruit of the gallant victory of Banda and of the consequent advance upon Kirwee. 16. As to the indirect assistance which was rendered to Sir G. C. Whitlock by the victories achieved by Sir Hugh Rose at Jhansi, or at Koonch, or at Calpee, this is not a consideration which has ever been recognised, under any known precedent, as conveying a claim of joint capture. But a judgment to the contrary effect is on record. In the Burmese War of 1825-6 the Madras Division, under Major-General Morrison, who acted under the orders of the Commander-in-Chief, Sir A. Campbell, rendered a very efficient service of this nature-for on the 26th of March, 1825, when General Campbell fought the action of Doonabew, General Morrison engaged another body of the enemy at the stockades of Kyong Peela, and by this success and its subsequent operations in Arracan, the Madras Division undoubtedly facilitated the final reduction of Ava, which capitulated to Sir A. Campbell. Nevertheless, on the unanimous opinion of the law officers of the Crown, the claim of General Morrison, which had at first been admitted by the Lords of the Treasury, was ultimately disallowed. 17. It would be impossible, therefore, with any regard to precedents or to the principles of Prize Law, for the Lords of the Treasury to admit the line of argument adopted by Sir Hugh Rose, when he alleges that the enemy whom he encountered and defeated at Jhansi and at Calpee might, but for those defeats, have rendered Sir G. Whitlock's advance on Kirwee difficult or perhaps impossible. It is believed that Sir G. Whitlock's force would have been found fully equal to any trial of this description which might have been imposed upon it. But it is plain that no argument of this nature, founded entirely on assumption, can be entertained in a controversy for prize. To reasoning of this character no limit can be fixed. It would admit Sir H. Barnard, the victor at Delhi; it would invite the Bengal troops, the conquerors of Lucknow, to prefer on similar grounds a claim to share in the spoil of Kirwee; for if Delhi had not fallen, and if Lucknow had not been stormed, there is no doubt that General Rose and General Whitlock would have encountered more serious opposition in their respective campaigns. It must also be remembered that at the time when General Whitlock was advancing on Kirwee, a very important success had just been obtained by the rebels opposed to Sir H. Rose. The fall of Gwalior, on the 1st of June 1858, revived the hopes of every insurgent leader throughout India, and emboldened the Chief of Kirwee to take the field against Sir G. Whitlock, and to attempt to oppose his progress at Burtkhoop. 18. Sir H. Rose has also collected as many collateral arguments as he could enlist, and has coloured them to the best purpose. For example, he lays great stress on a note from Sir R. Hamilton, dated the 9th of April, 1858, in which the writer says: "I suppose General Whitlock will move on to Banda, as you have cleared off all in this quarter.' 19. As *Extract from Colonel Erskine's letter of December 22 1857: "I am of opinion that they would not stand one hour before your force, or even a portion of it." 19. As already shown, if this were literally true, it would not be a material point in establishing a prize claim on the plea of constructive capture. But the late Lord Clyde Parl. Papers, No. 12, gives a very different account of the matter in his Simla Memorandum of 26th July 1859: Appendix C., Sir Hugh Rose's march through Central India; Sir E. Lugard's through Oude into Page 34. Behar; General Walpole's through that province into Rohilcund; Sir Hope Grant's in the neighbourhood of Lucknow; General Whitlock's from Saugor to Banda, in Bundelcund, had all been entirely successful as marches, but nothing more; the whole population was armed and hostile, and closed round the rear of each column like the sea in a ship's wake." 20. Although Sir H. Rose thought the note just quoted of so much importance that he appears to have kept back his statement on account of it, it would not be right, in the face of Lord Clyde's testimony, to overrate the effect of any of the victories gained by the Bombay troops, or to suppose, on the strength of a casual expression used in a hasty note, that the country was really cleared of the enemy by the operations of Sir H. Rose. On the contrary, a few weeks after the passage of that general through the Saugor territories, Garrakotta was re-occupied by a rebel force, and in April 1858 an action took place between the rebel garrison of the fort of Putna, near Multown, and a detachment of the Saugor garrison, under Captain Finch. In short, it is notorious that these territories were overrun by the army of Tantia Topee, and by other insurgents, for very many months after Sir R. Hamilton wrote this note, in which he states that all the rebels in that quarter had been cleared off by the successful operations of Sir Hugh Rose. 21. Again; some stress is laid on the fact that, after the fall of Jhansi, a flying column was despatched, under the orders of Major Orr, to Mhow Rannypore,* with instructions to open communications with Sir George Whitlock. But Major Orr appears not to have come at any time within five or six marches of that general officer, and it does not appear that he received any communication from him. See 11th para. of the Statement of Sir London Gazette, 22. It is curious to observe how summarily Sir Hugh Rose himself disposed of similar Parl. Papers, No. 31 arguments, in his decision on the claim put forth by Colonel Christie and other officers page 61. serving in the country north of Kirwee, at Futtehpore, and other points in the districts bordering on the Jumna, who had given indirect assistance to Sir G. Whitlock, and had opened communications with him, with reference to combined operations against the rebels. "3. This duty, Sir H. Rose remarks, was important, and apparently well performed; Letter from the but it cannot, in his Excellency's opinion, be construed into a co-operation with Major- the Army to the Adjutant-General of General Whitlock, nor can it have exercised any influence on his success at Banda and Government of Kirwee. It appears to the Commander-in-Chief, that the object of these troops was not India, dated 8th to aid Major-General Whitlock, but to preserve districts which, if not thus protected, were January 1862. liable to be overrun by fugitives from the rebel forces falling back before the troops under Parl. Papers, No. 31, command of Major-General Whitlock and Sir H. Rose. "4. His Excellency, therefore, regrets that he cannot consider the troops detached to be entitled to share in booty captured at Banda and Kirwee, on account of their services with the moveable column in the Futtehpore district. "5. It does not appear that any of these troops ever crossed the Jumna and actually co-operated with the forces advancing through Central India." page 61. 23. If Sir Hugh Rose could have been an equally disinterested judge in his own cause, he must have perceived that the object of his own march was not to aid Sir G. Whitlock, but to co-operate with Lord Clyde, and to "cut off the Gwalior and Dinapore mutineers and See letter from Mr. other rebels escaping into the strong country, north of the Nerbudda ;" and, he would also Anderson, quoted have added, that none of his own troops ever joined or actually co-operated with Sir G. ante, page 5, Whitlock's Force. 24. I would also beg to briefly refer to Sir W. Mansfield's recorded opinion on the claim preferred by the agents of the Rajpootana (General Roberts') Column to share in the Central India Prize Money. Sir W. Mansfield decides that this claim is untenable, inasmuch as General Roberts was "not in any way under the command of Sir Hugh Rose, and did not, therefore, more co-operate with him than the force under Lord Clyde" (which furnished a strong detachment to assist Sir H. Rose in the Siege of Calpee). "If Lord Clyde's Forces share, then the Rajpootana Field Force should share; but, his Excellency believes, not otherwise." 25. This reasoning, it will be observed, clearly applies to the claim for a share of the Kirwee prize put forth by Sir Hugh Rose, for in a letter already quoted, which was written on the 2d June 1858, at the desire of Lord Clyde, Sir W. Mansfield, then Chief of the Staff, who must, from his position, have been conversant with all the circumstances of the case, expressly associates Sir H. Roberts and Sir G. Whitlock in the same category, with respect to their relations towards Sir H. Rose; Sir W. Mansfield, speaking Letter from the • Not Mhow (Indore). |
