The Banda and Kirwee Booty

The Banda and Kirwee Booty

The Banda and Kirwee Booty was a large quantity of treasure and other property seized by British forces during the suppression of the Indian Rebellion of 1857-1858. Captured in the Bundelkhand region of Central India in June 1858 by the Saugor and Nerbudda Field Force, commanded by Major General George Cornish Whitlock, The property became the subject of one of the most extensive military prize disputes of nineteenth century Britain.

The treasure was estimated at approximately £700,000 with the principle legal record giving a value of £720,000. It included large quantities of coin and specie, jewels and diamonds together with guns ammunition, military stores and other property. The capture subsequently generated competing claims from several British military formations and individual officers. Some argued that their operations elsewhere in Central India had contributed to the capture and therefore were also entitled to a share of the booty. Whitlocks prize agents argued that the established principle of actual capture entitled his force to the Banda and Kirwee booty.

The dispute was eventually referred to the High Court of Admiralty where Sir Stephen Lushington, Judge of the Court, delivered a lengthy judgement on 30 June 1866. His decision established a distinction between actual capture, military association and indirect assistance and became an important authority in the nineteenth century law relating to military booty.

Background

Following the outbreak of rebellion in 1857, the British authorities organised a number of military columns to operate against rebel forces throughout Northern and Central India. The Commander in Chief, Sir Colin Campbell, later Lord Clyde and the Governor General, Lord Canning, developed a plan under which several columns would operate in concert on both sides of the River Jumna and through Central India. Among these formations was the Saugor and Nerbudda Field Force, sometimes referred to as the Madras Column, under Major General George Cornish Whitlock. Other major formations included the Central India Field Force commanded by SIr Hugh Rose and the Rajputana Field Force commanded by Sir Henry Roberts. These three formations operated in the same broad strategic theatre but did not constitute a single military formation. This distinction eventually became central to the dispute over the Banda and Kirwee prize.

The Capture of Banda

During the spring of 1858 Whitlocks forces advanced on Bundelkhand. At that time Banda was controlled by the Nawab of Banda who had become involved with the rebellion after initially maintaining relations with the British authorities. Whitlock's troops defeated the Nawab's forces outside of Banda and subsequently occupied the town, the capture yielding a considerable amount of property, including treasure. This military action was considered significant by the British as they regarded the defeat of the Nawab as an important step in restoring British rule in Bundelkhand. It also placed Whitlock's force in a favourable position for advancing against nearby Kirwee.

The Capture of Kirwee

Kirwee, also known as Tirohan, was under the control of two brothers, Narrain Rao and Madho Rao, connected by family ties to Nana Sahib, a prominent leader of the uprising The Rao chiefs had initially maintained relationship with the British but subsequently became involved in the rebellion and had been accused by the British of providing money and support to rebel forces.

On the 6 June 1858, Whitlock entered Kirwee and took possession of the palace. According to the contemporary account recorded by Whitlock, the British found 38 brass guns, approximately 800 muskets and balls, military clothing and equipment and other stores and 42 lakhs of rupees in coin and a large quantity of specie, jewels and diamonds. This treasure formed the principle component of what would become known as the Banda and Kirwee Booty. The value attributed to Whitlocks capture was initially estimated at £700,000 and later, listed in legal literature, as the more precise amount of £720,000.

Wider Military Campaign

The determination of which of the claimants to the booty should be awarded a share was made difficult because Whitlock was not the only British officer operating in Central India at the time. Sir Hugh Rose's Central India Field Force had captured substantial property elsewhere, including at Jhansi, Kalpi and Gwalior to the value of approximately £49,000. Sir Henry Robert's had also elsewhere captured property valued at approximately £18,200 and was also claiming a share of Rose's booty.

The disparity between Rose and Robert's figures when compared with Whitlock's was enormous. A proposal was put forward that the various bodies of captured property should be placed into a common fund and distributed among the forces involved in the wider Central Indian operations. Whitlock's prize agents opposed this proposal and argued that the Banda and Kirwee booty should be kept separate from that of Rose and Roberts and should therefore remain with Whitlock's force. This became the central issue of the litigation of the case.

Competing Claims

The principal argument concerned the distinction between property that was actually captured and that which had been constructively captured, due to assistance from other commands. The claimants representing Sir Hugh Rose argued, in substance, that the operations of Rose's force had contributed to the overall defeat of the rebel forces and therefore to the circumstances in which Whitlock was able to occupy Banda and Kirwee. Sir Henry Roberts agents offered similar arguments in favour of his claim to a share of the pooled booty.

Another claimant of note was General Michael Smith whose brigade had operated alongside Rose's force and who claimed to have significantly and materially contributed to the circumstance leading to the capture of the booty, a claim rejected by Rose.. Other claims were made by individual officers and formations arguing that they had also supported or helped facilitate the wider campaign.

The Parliamentary debate of 1864 shows how complicated the issue had become. Lord Clyde himself considered that Sir Hugh Rose's force and Smith's detached brigade should share in the prize, while the Government and Treasury considered various other compromise arrangements. One proposal was to give half the booty to the actual captors and divide the remainder between the three columns of Rose, Roberts and Smith. This outcome was rejected by Whitlock as an attempt to create a new doctrine of "constructive capture" with no clearly defined boundary between that and property which had been "actively captured".

Parliament Intervenes

On the 14 July 1863, Sir Stafford Northcote brought the matter to the House of Commons, moving that the matter should be referred to a competent judicial authority rather than be determined soley by the Treasury. Northcote deliberately avoided asking Parliament to decide which claimant was correct, instead arguing that soldiers should know the principles under which prize money would be distributed and that disputed claims should be settled by a judicial tribunal capable of hearing evidence from both sides.

The matter was debated again in May 1864, Northcote pointing out that the Royal Commission on Army Prize had recommended distribution of the principle of actual capture and that several eminent lawyers had expressed opinions supporting Whitlock's claim. The Government, however, continued to consider the claims of Rose, Roberts and others.

Eventually the Crown, in June 1864, issued an Order in Council referring the competing claims to the High Court of Admiralty.

The Admiralty Procedings

The case was to become extraordinarily large with later commentary documenting appearances at the hearings from 40 council and involving 16 legal firms, conducted during alternate periods in January and February 1866. The final judgement was handed down by Dt Stephen Lushington, Judge of the High Court of Admiralty on 30 June 1866.

Lushington's Legal Reasoning

Lushington chose not to simply apply the rules governing the distribution of naval prizes to the context of the army, firstly. making a distinction between prize and booty. Prize generally concernred property captured at sea, while booty concerned property seized by land forces. Although both categories ultimately belonged to the Crown, their historical systems of distribution had developed differently. Lushington held that the statute extending the Admiralty Court's procedure to army booty did not automatically make the rules governing naval prize identical to those governing land captures. Nonetheless, Lushington considered the principles developed in naval prize law to be useful as an analogy.

Actual Capture as the General Rule

Lushington concluded that the general rule for military booty was actual capture, however, he rejected an excessively literal interpretation under which only the individual soldiers who physically laid hands on the property would receive anything. Such a rule would encourage uncontrolled individual looting rather than organised military capture.

Conversely, he considered that distributing booty indiscriminately among every formation participating in a wider campaign would weaken the connection between military service and reward. His solution was to draw the boundary between military divisions and formations. Troops claiming through association with the actual captors needed to establish a strict military association and to have remained under the immediate control of the same commanding officer. Political association or participation in a general strategic campaign was insufficient.

Constructive Capture

Lushington also considered claims based on co-operation. For such a claim to succeed, the assistance had to have directly contributed to the particular capture in question, rejecting the idea that distant or indirect military services were enough. The legal commentary on the case describes Lushington's judgement as establishing that constructive assistance could not simply be inferred from participation in the same general campaign. The connection between the alleged assistance and the particular capture had to be sufficiently direct. This decision effectively disposed of the broader claims brought by Rose's and Roberts' forces.

Lord Clyde's Position

The most important exception to the established rule concerned Lord Clyde, the Commander in Chief. Lushington examined the military practice relating to commanders in chief and drew an analogy with the position of a naval flag officer. A naval commander in chief could be entitled to share in booty captured by forces under his command even when he was not physically present at the capture, providing he was actually exercising command in the field.

Lushington concluded that the same principle then extended to Lord Clyde as Clyde was personally in the field and retained the position of Commander in Chief over Whitlock's forces. His physical absence from Banda and Kirwee therefore did not deprive him of his entitlement. Consequentially, Lord Clyde and his personal and general staff were ruled to have a legitimate claim to a share of the booty.

Colonel Keatinge and the Troops Left Behind

Lushington's judgement contains another important qualification to the simple concept of "actual capture". When Whitlock advanced on Banda and Kirwee, some of his troops were left behind. The most significant being the force under control of Colonel Keatinge. Keatinge's regiment had formed part of Whitlock's force throughout the relevant operations and remained under Whitlock's command, but it was not physically present at Banda or Kirwee when the treasure was captured. Lushington nevertheless included Keatinge's troops within Whitlock's entitled force.

The crucial distinction, ruled Lushington, was that they remained part of Whitlock's division and under his immediate command at the time of capture. The modern legal summary of the case specifically records that Keatinge's regiment had throughout the operations formed part of Whitlock's force and was under his orders, even though it was not present at the capture.

The actual capture principle operated at the level of military formation, subject to the requirement of continuing military association and command, and not, according to Lushington, simply to the principle of whoever touches the prize gets the prize.

The Judgement

The ultimate result was that two broad groups were deemed entitled to share in the booty. Firstly, Lord Clyde and his staff were entitled to share as he was the Commander in Chief in the field. Secondly, subject to that entitlement, the Banda and Kirwee booty was awarded to General Whitlock and his force, including troops such as those under Colonel Keatinge which remained part of his division and under his command. The claims of all other officers and military formations were rejected.

Distribution of the Money

Although Lushington delivered his judgement in June 1866, the soldiers did not immediately receive their money. The first distribution was authorised in March 1867, almost nine years after the capture.

The Royal Warrant relating to the distribution specifically identified:

• The personal representatives of Lord Clyde
• His personal and general staff who had been in the field
• Major General Sir George Cornish Whitlock
• Officers and men engaged in the captures
• Troops under Colonel Keatinge; and
• Other troops left by General Whitlock on his march, which, at the time of capture, formed part of his division and remained under his command.

The wording of the Royal Warrant is reproduced in the Bombay Gazette of 7 March 1867 and lists the eligible forces, including;

• The 12th Lancers
• The 43rd Regiment of Foot
• Royal Artillery
• Madras Artillery
• Madras Sappers
• The 6th and 7th Madras Light Cavalry
• The 3rd Madras European Infantry
• The 1st, 19th and 50th Madras Native Infantry, and;
• Elements of the Hyderabad Contingent

The surviving prize rolls in the India Office records provide nominal lists of recipients and payments.

Historical Importance

The Banda and Kirwee case is of historical significance for several reasons.

Firstly, the sheer value of the property made it one of the largest individual bodies of military booty ever captured by British land forces during the nineteenth century.

Secondly, it produced an unusually detailed judicial examination of the relationship between military command, actual capture and indirect military assistance.

Thirdly, Lushington's judgement established that the actual-capture principle did not mean that only individuals physically present at the time of capture were entitled to the prize. A military formation could qualify where it remained under the immediate command of the force making the capture.

Fourthly, the case established an important distinction between direct-cooperation and the more general contributions made by forces engaged in the same campaign. Military activity carried out at a considerable distance, or actions whose relationship to the particular capture was indirect, did not create an entitlement.

Finally, the case illustrates the peculiar constitutional position of nineteenth century military booty. The property was regarded as belonging to the Crown, rather than automatically becoming the private property of the soldiers who seized it. Distribution therefore depended on Crown authority, military practice and, ultimately, the legal and administrative machinery established to determine entitlement.

The dispute also illustrates the tensions between two competing ideas of military reward. One was the practical military principle that troops who captured valuable property should receive a reward for their service. The other was the argument that soldiers participating in large coordinated campaigns should not neccessarily be excluded merely because they were geographically distant from the final capture.

Lushington's judgement tried to reconcile the two by making actual capture and immediate military association the general rule, while allowing limited exceptions for commanders and forces whose formal military relationship to the capturing force remained sufficiently close.

References

This article "The Banda and Kirwee Booty" is from Wikipedia. The list of its authors can be seen in its historical and/or the page Edithistory:The Banda and Kirwee Booty. Articles copied from Draft Namespace on Wikipedia could be seen on the Draft Namespace of Wikipedia and not main one.

---