A jurisprudence of power: Martial law and the Ceylon controversy of 1848-51

Journal of Imperial and Commonwealth History

Volumn 28, Issue 1, 2000, Pages 1-34

  Kostal, R W ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

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EID: 0034349722     PISSN: 03086534     EISSN: None     Source Type: Journal    
DOI: 10.1080/03086530008583077     Document Type: Article

References (214)

1. 1. L.A. Mills, Ceylon Under British Rule 1795-1932 (Oxford, 1932), 168-202; E.F.C. Ludowyk, The Modern History of Ceylon (New York, 1966), 76-88.
2. 1. L.A. Mills, Ceylon Under British Rule 1795-1932 (Oxford, 1932), 168-202; E.F.C. Ludowyk, The Modern History of Ceylon (New York, 1966), 76-88.
3. 2. R.P. Doig, 'Lord Torrington's Government of Ceylon, 1847-50', Durham University Journal, 54 (1962), 49-58.
4. 3. W.P. Morrell, British Colonial Policy in the Age of Peel and Russell (Oxford, 1930), 528-32; S.H. Farnsworth, The Evolution of British Imperial Policy During the Mid-Nineteenth Century (New York, 1992), 37-8.
5. 3. W.P. Morrell, British Colonial Policy in the Age of Peel and Russell (Oxford, 1930), 528-32; S.H. Farnsworth, The Evolution of British Imperial Policy During the Mid-Nineteenth Century (New York, 1992), 37-8.
6. 4. K.M. de Silva, A History of Sri Lanka (Berkeley, 1981), 277-81.
7. 5. Ceylon is not mentioned in the standard accounts of the British experience of 1848. See J. Saville, 1848: The British State and the Chartist Movement (Cambridge, 1987); F.B. Smith, 'The View from Britain I: Tumults abroad, stability at home', and J.H. Grainger, 'The View from Britain II: the moralising island', in E. Kamenka (ed.), Intellectuals and Revolution: Socialism and the Experience of 1848 (London, 1979), 94-120, 121-30; R. Quinault, '1848 and Parliamentary Reform', Historical Journal, 31 (1988), 831-51. For a corrective, see Miles Taylor, 'The 1848 revolutions and the British empire', Past and Present, forthcoming.
8. 5. Ceylon is not mentioned in the standard accounts of the British experience of 1848. See J. Saville, 1848: The British State and the Chartist Movement (Cambridge, 1987); F.B. Smith, 'The View from Britain I: Tumults abroad, stability at home', and J.H. Grainger, 'The View from Britain II: the moralising island', in E. Kamenka (ed.), Intellectuals and Revolution: Socialism and the Experience of 1848 (London, 1979), 94-120, 121-30; R. Quinault, '1848 and Parliamentary Reform', Historical Journal, 31 (1988), 831-51. For a corrective, see Miles Taylor, 'The 1848 revolutions and the British empire', Past and Present, forthcoming.
9. 5. Ceylon is not mentioned in the standard accounts of the British experience of 1848. See J. Saville, 1848: The British State and the Chartist Movement (Cambridge, 1987); F.B. Smith, 'The View from Britain I: Tumults abroad, stability at home', and J.H. Grainger, 'The View from Britain II: the moralising island', in E. Kamenka (ed.), Intellectuals and Revolution: Socialism and the Experience of 1848 (London, 1979), 94-120, 121-30; R. Quinault, '1848 and Parliamentary Reform', Historical Journal, 31 (1988), 831-51. For a corrective, see Miles Taylor, 'The 1848 revolutions and the British empire', Past and Present, forthcoming.
10. 5. Ceylon is not mentioned in the standard accounts of the British experience of 1848. See J. Saville, 1848: The British State and the Chartist Movement (Cambridge, 1987); F.B. Smith, 'The View from Britain I: Tumults abroad, stability at home', and J.H. Grainger, 'The View from Britain II: the moralising island', in E. Kamenka (ed.), Intellectuals and Revolution: Socialism and the Experience of 1848 (London, 1979), 94-120, 121-30; R. Quinault, '1848 and Parliamentary Reform', Historical Journal, 31 (1988), 831-51. For a corrective, see Miles Taylor, 'The 1848 revolutions and the British empire', Past and Present, forthcoming.
11. 5. Ceylon is not mentioned in the standard accounts of the British experience of 1848. See J. Saville, 1848: The British State and the Chartist Movement (Cambridge, 1987); F.B. Smith, 'The View from Britain I: Tumults abroad, stability at home', and J.H. Grainger, 'The View from Britain II: the moralising island', in E. Kamenka (ed.), Intellectuals and Revolution: Socialism and the Experience of 1848 (London, 1979), 94-120, 121-30; R. Quinault, '1848 and Parliamentary Reform', Historical Journal, 31 (1988), 831-51. For a corrective, see Miles Taylor, 'The 1848 revolutions and the British empire', Past and Present, forthcoming.
12. 6. The Ceylon controversy is discussed briefly in J. Prest, Lord John Russell (London, 1972), 308-10. For background on parliamentary politics in the period, see J.B. Conacher, The Peelites and the Party System (London, 1972).
13. 6. The Ceylon controversy is discussed briefly in J. Prest, Lord John Russell (London, 1972), 308-10. For background on parliamentary politics in the period, see J.B. Conacher, The Peelites and the Party System (London, 1972).
14. 7. Louis Namier, 1848: The Revolution of the Intellectuals (London, 1944), 31.
15. 8. The Times, 30 May 1851.
16. 9. K.M. De Silva (ed.), Letters on Ceylon 1846-50: The Administration of Viscount Torrington and the Rebellion of 1848 (Colombo, 1965), 3; Doig, 'Government of Ceylon', 49-50.
17. 9. K.M. De Silva (ed.), Letters on Ceylon 1846-50: The Administration of Viscount Torrington and the Rebellion of 1848 (Colombo, 1965), 3; Doig, 'Government of Ceylon', 49-50.
18. 10. Though not a highly respected member of court, Queen Victoria knew Torrington well, and flatly told Grey that she believed him not 'fit' for a governorship. Quoted in Doig, 'Government of Ceylon', 50.
19. 11. Torrington's railway work brought him into the acquaintance of Under-Secretary for the Colonies, Benjamin Hawes, who is said to have pressed Torrington's name on Lord Grey. 'Legislating Under Difficulties', Fraser's Magazine, May 1851, 597. For further biographical material on Torrington, 'The Mysteries of Ceylon', Quarterly Review, 88 (1851), 103-4.
20. 11. Torrington's railway work brought him into the acquaintance of Under-Secretary for the Colonies, Benjamin Hawes, who is said to have pressed Torrington's name on Lord Grey. 'Legislating Under Difficulties', Fraser's Magazine, May 1851, 597. For further biographical material on Torrington, 'The Mysteries of Ceylon', Quarterly Review, 88 (1851), 103-4.
21. 12. The removal by parliament of duties supporting the price of Ceylon coffee hit particularly hard. For contemporary analyses of these problems, see 'Fiscal Reforms in Ceylon', The Economist, 28 Oct. 1848; 'Mysteries', Quarterly Review, 101-8. For modern historical accounts of the fiscal problems and taxation in Ceylon in the 1840s, see De Silva, Letters on Ceylon, 5-10; Ludowyk, Modern History of Ceylon, 76-8; Morrell, British Colonial Policy, 528-9; Mills, British Rule, 172-5.
22. 12. The removal by parliament of duties supporting the price of Ceylon coffee hit particularly hard. For contemporary analyses of these problems, see 'Fiscal Reforms in Ceylon', The Economist, 28 Oct. 1848; 'Mysteries', Quarterly Review, 101-8. For modern historical accounts of the fiscal problems and taxation in Ceylon in the 1840s, see De Silva, Letters on Ceylon, 5-10; Ludowyk, Modern History of Ceylon, 76-8; Morrell, British Colonial Policy, 528-9; Mills, British Rule, 172-5.
23. 12. The removal by parliament of duties supporting the price of Ceylon coffee hit particularly hard. For contemporary analyses of these problems, see 'Fiscal Reforms in Ceylon', The Economist, 28 Oct. 1848; 'Mysteries', Quarterly Review, 101-8. For modern historical accounts of the fiscal problems and taxation in Ceylon in the 1840s, see De Silva, Letters on Ceylon, 5-10; Ludowyk, Modern History of Ceylon, 76-8; Morrell, British Colonial Policy, 528-9; Mills, British Rule, 172-5.
24. 12. The removal by parliament of duties supporting the price of Ceylon coffee hit particularly hard. For contemporary analyses of these problems, see 'Fiscal Reforms in Ceylon', The Economist, 28 Oct. 1848; 'Mysteries', Quarterly Review, 101-8. For modern historical accounts of the fiscal problems and taxation in Ceylon in the 1840s, see De Silva, Letters on Ceylon, 5-10; Ludowyk, Modern History of Ceylon, 76-8; Morrell, British Colonial Policy, 528-9; Mills, British Rule, 172-5.
25. 12. The removal by parliament of duties supporting the price of Ceylon coffee hit particularly hard. For contemporary analyses of these problems, see 'Fiscal Reforms in Ceylon', The Economist, 28 Oct. 1848; 'Mysteries', Quarterly Review, 101-8. For modern historical accounts of the fiscal problems and taxation in Ceylon in the 1840s, see De Silva, Letters on Ceylon, 5-10; Ludowyk, Modern History of Ceylon, 76-8; Morrell, British Colonial Policy, 528-9; Mills, British Rule, 172-5.
26. 12. The removal by parliament of duties supporting the price of Ceylon coffee hit particularly hard. For contemporary analyses of these problems, see 'Fiscal Reforms in Ceylon', The Economist, 28 Oct. 1848; 'Mysteries', Quarterly Review, 101-8. For modern historical accounts of the fiscal problems and taxation in Ceylon in the 1840s, see De Silva, Letters on Ceylon, 5-10; Ludowyk, Modern History of Ceylon, 76-8; Morrell, British Colonial Policy, 528-9; Mills, British Rule, 172-5.
27. 13. The central thrust of the recommendation was the substitution of a land tax for export duties. Mills, British Rule, 172.
28. 14. The law provided for a commutation tax of 3s. in lieu of physical labour. Ibid., 174.
29. 15. Ludowyk, History of Ceylon, 78.
30. 16. Mills, British Rule, 171.
31. 17. Under the Convention of 1815, the British agreed to maintain temple lands, acknowledge elected chief priests, and ensure safe custody of Buddhist relics, including a tooth attributed to the Buddha. In the mid-1840s Lord Stanley as colonial secretary began deliberately to renege on these obligations. See Morrell, British Colonial Policy, 529-31; De Silva, History of Sri Lanka, 279-80; De Silva, Letters on Ceylon, 13-18; Doig, 'Government of Ceylon', 52.
32. 17. Under the Convention of 1815, the British agreed to maintain temple lands, acknowledge elected chief priests, and ensure safe custody of Buddhist relics, including a tooth attributed to the Buddha. In the mid-1840s Lord Stanley as colonial secretary began deliberately to renege on these obligations. See Morrell, British Colonial Policy, 529-31; De Silva, History of Sri Lanka, 279-80; De Silva, Letters on Ceylon, 13-18; Doig, 'Government of Ceylon', 52.
33. 17. Under the Convention of 1815, the British agreed to maintain temple lands, acknowledge elected chief priests, and ensure safe custody of Buddhist relics, including a tooth attributed to the Buddha. In the mid-1840s Lord Stanley as colonial secretary began deliberately to renege on these obligations. See Morrell, British Colonial Policy, 529-31; De Silva, History of Sri Lanka, 279-80; De Silva, Letters on Ceylon, 13-18; Doig, 'Government of Ceylon', 52.
34. 17. Under the Convention of 1815, the British agreed to maintain temple lands, acknowledge elected chief priests, and ensure safe custody of Buddhist relics, including a tooth attributed to the Buddha. In the mid-1840s Lord Stanley as colonial secretary began deliberately to renege on these obligations. See Morrell, British Colonial Policy, 529-31; De Silva, History of Sri Lanka, 279-80; De Silva, Letters on Ceylon, 13-18; Doig, 'Government of Ceylon', 52.
35. 18. De Silva, History of Sri Lanka, 279.
36. 19. Morrell, British Colonial Policy, 529.
37. 20. De Silva, Letters on Ceylon, 22.
38. 21. A Baptist missionary, quoted at ibid., 25.
39. 22. Ibid., 26. About one thousand British soldiers had died from disease and wounds. Hansard, cxvii (29 May 1851), Hawes, 188.
40. 23. According to Sir James Emerson Tennant, Torrington's senior secretary in Ceylon. PP, (1851), xxxv, Q. 2532.
41. 24. Torrington and his inner circle were almost completely ignorant both of the Kandyan region in general and of the circumstances of the uprising in particular. Mills, British Rule, 191.
42. 25. The veteran officer, Colonel Fraser, urged Torrington to declare martial law and send to Madras for reinforcements. Hansard, cxv (1 April 1851), Torrington, 859.
43. 26. Sir Emerson Tennant, P.E. Wodehouse, and the Treasurer, Mr. Templar were unable to attend. PP (1850), xii, Wodehouse, Q. 4194-201.
44. 27. Ibid., Maddock, Q. 3528.
45. 28. PP (1851), viii, Q. 1381.
46. 29. According to Selby's own recollection. Ibid., Q. 1366.
47. 30. Martial law was invoked by 'proclamation', not by order of the executive council. 'A proclamation', Selby later explained to parliament, 'is an act of the Governor exercising the authority confided in him by Her Majesty.' Ibid., Q. 1399.
48. 31. Proclamation, Public Record Office, CO 885/3, No.3.
49. 32. Ludowyk, History of Ceylon, 79.
50. 33. Mills, British Rule, 181-82.
51. 34. According to Ceylon Rifles officer, Capt. H.C. Bird. PP, (1850), xii, Q. 6160-61. At least one of these engagements (at Matalle) amounted to a 'slaughter' of 'unresisting' native people. 'Mysteries', Quarterly Review, 125.
52. 34. According to Ceylon Rifles officer, Capt. H.C. Bird. PP, (1850), xii, Q. 6160-61. At least one of these engagements (at Matalle) amounted to a 'slaughter' of 'unresisting' native people. 'Mysteries', Quarterly Review, 125.
53. 35. Torrington to Grey, 11 Aug. 1848, Letters on Ceylon, 92.
54. 36. PP, (1851), xxxv, Selby, Q.1422, 1465.
55. 37. According to one report, 'The governor has won golden opinions for his decision and his activity. The respectable of all classes have come forward to tender to him their warm approval of his measures.' Letter to The Economist (dated 14 Aug. 1848), 28 Oct. 1848. See also, testimony of Ceylon planter and merchant, H.C. Layard, PP (1851), xii, Q. 6332.
56. 37. According to one report, 'The governor has won golden opinions for his decision and his activity. The respectable of all classes have come forward to tender to him their warm approval of his measures.' Letter to The Economist (dated 14 Aug. 1848), 28 Oct. 1848. See also, testimony of Ceylon planter and merchant, H.C. Layard, PP (1851), xii, Q. 6332.
57. 38. Grey to Torrington, 24 Oct. 1848, CO 885/3, No. 4.
58. 39. See assertions of Torrington, Hansard, cxv (1 April 1851), 864.
59. 40. Torrington to Grey, 14 Sept. 1848, CO 54/251.
60. 41. For this and subsequent quotations, see PP (1851), xxxv, Q. 1491, 1422, 4358, 1419.
61. 42. Ibid., Q. 1437.
62. 43. The procedural rules governing courts martial were set forth in the Mutiny Act. While these rules applied only to members of the 'land forces of Her Majesty', critics contended that the military ought to have adopted them in the courts martial of alleged Kandyan rebels. For the jurisdiction of the Mutiny Act, see PP, (1850), xii, Dundas, Q. 5431. For criticism of the procedures adopted by the British military in the trial of Kandyans, see Colonel J. Forbes, 'Recent Disturbances and Military Executions in Ceylon' (Edinburgh, 1850), 21.
63. 43. The procedural rules governing courts martial were set forth in the Mutiny Act. While these rules applied only to members of the 'land forces of Her Majesty', critics contended that the military ought to have adopted them in the courts martial of alleged Kandyan rebels. For the jurisdiction of the Mutiny Act, see PP, (1850), xii, Dundas, Q. 5431. For criticism of the procedures adopted by the British military in the trial of Kandyans, see Colonel J. Forbes, 'Recent Disturbances and Military Executions in Ceylon' (Edinburgh, 1850), 21.
64. 44. For contemporary accounts of the procedural defects and irregularities of the courts martial, see Forbes, 'Recent Disturbances', 21-2; Hansard, cxvii (29 May 1851), Thesiger, 172-3. For official records of specific courts martial, sec CO 54/263.
65. 44. For contemporary accounts of the procedural defects and irregularities of the courts martial, see Forbes, 'Recent Disturbances', 21-2; Hansard, cxvii (29 May 1851), Thesiger, 172-3. For official records of specific courts martial, sec CO 54/263.
66. 45. For this quotation, and for a critical assessment of Drought's orders, see Capt. J. Henderson, The History of the Rebellion in Ceylon (London, 1868), 72.
67. 46. Ibid. Although Drought was keen to punish captured insurgents, he remained concerned about the legal implications of the courts martial held under his command. He frequently consulted with Torrington 'on points connected with carrying out martial law'. In one instance, he anxiously contacted Selby regarding the courts martial: 'I request you to state whether you are aware of any defined limit to my authority, and what that limit is. I also request to be informed whether all acts done by me, and all orders issued by me ... are to be held conclusive and final after martial law shall cease; or, on the contrary, whether they are liable to be reversed by any judicial authority.' PP (1851), xxxv, Selby, Q. 4358.
68. 47. Henderson, 'Rebellion in Ceylon', 74.
69. 48. Ibid.
70. 49. For Torrington's despatch to Grey regarding the execution of the priest, see 13 Nov. 1849, CO 54/264. For doubts regarding the priest's guilt, see PP (1851), xxxv, Selby, Q. 1516-22; PP (1850), xii, Layard, Q. 6365-72.
71. 49. For Torrington's despatch to Grey regarding the execution of the priest, see 13 Nov. 1849, CO 54/264. For doubts regarding the priest's guilt, see PP (1851), xxxv, Selby, Q. 1516-22; PP (1850), xii, Layard, Q. 6365-72.
72. 50. PP (1851), xxxv, Q. 1516; Hansard, cxvii (29 May 1851), Thesiger, 176.
73. 50. PP (1851), xxxv, Q. 1516; Hansard, cxvii (29 May 1851), Thesiger, 176.
74. 51. Selby and Torrington later engaged in an ugly public dispute over the exact words used by the governor. Selby claimed that the governor had said: 'By God, sir, if all the lawyers in Ceylon said that the priest was innocent, he [the priest] should be shot tomorrow morning.' Torrington denied having used such strong language. See 'Colonial Office Morality', Morning Chronicle, 1 April 1851; PP (1851), xxxv, Selby, Q. 1519.
75. 51. Selby and Torrington later engaged in an ugly public dispute over the exact words used by the governor. Selby claimed that the governor had said: 'By God, sir, if all the lawyers in Ceylon said that the priest was innocent, he [the priest] should be shot tomorrow morning.' Torrington denied having used such strong language. See 'Colonial Office Morality', Morning Chronicle, 1 April 1851; PP (1851), xxxv, Selby, Q. 1519.
76. 52. Called to the bar at Lincoln's Inn in 1821, Oliphant was appointed Attorney-General of the Cape Colony in 1829 and Chief Justice of Ceylon in 1839. See entry on Laurence Oliphant, Sir Anthony's son, in DNB, XIV, 1027.
77. 53. PP, (1851), xxxv, Oliphant, Q. 6839.
78. 54. In 1850 Oliphant claimed not to have supported the proclamation of martial law even on first word of armed unrest in Kandy, 'There was nothing in the evidence before me', the Chief Justice told the Ceylon committee, 'which induced me to suppose that it was necessary to proclaim martial law.' As an old Ceylon hand, Oliphant had believed that the disturbances could have been quelled by 'firm warning from someone who the people knew and respected'. In his opinion, the decision to proclaim martial law had resulted from panic. He even claimed to have told the governor, to his face, that he was a man of 'timid and nervous temperament'. Ibid., Q. 6891-6913.
79. 55. Ibid., Selby, Q. 1523; Oliphant, Q. 7080.
80. 55. Ibid., Selby, Q. 1523; Oliphant, Q. 7080.
81. 56. Torrington to Grey, 14 Sept. 1848, CO 54/251.
82. 57. PP (1851), xxxv, Oliphant, Q. 6929.
83. 58. Torrington to Grey, 14 Sept. 1848, CO 54/251. Torrington also stated of the special jury that it was 'composed of men of Intelligence and of that Standing in the Island which will ensure just, strict, and proper verdicts in all cases which might be tried before them'. Quoted in Ceylon Times, 22 Aug. 1848.
84. 58. Torrington to Grey, 14 Sept. 1848, CO 54/251. Torrington also stated of the special jury that it was 'composed of men of Intelligence and of that Standing in the Island which will ensure just, strict, and proper verdicts in all cases which might be tried before them'. Quoted in Ceylon Times, 22 Aug. 1848.
85. 59. Torrington to Grey, 14 Sept. 1848, CO54/251. Some 240 detainees were released without trial.
86. 60. In many cases, for example, Oliphant ruled that the Crown's 'confession' evidence was inadmissible for having been obtained by physical force or intimidation. In cases where the confessions were allowed into evidence, the Chief Justice cautioned the jury to evaluate their reliability. Ceylon Times, 26 Sept. 1848.
87. 61. Oliphant urged juries to think of the Sinhalese as men possessed of full legal rights. As Oliphant told one jury: 'We are all equals, we are all subjects, that is my opinion, whatever our colour might be.' Ibid.
88. 62. Selby to Grey, 12 Sept. 1848, CO 54/251.
89. 63. Torrington to Grey, 14 Sept. 1848, ibid. In a private letter written the same day, Torrington decried that Oliphant's 'charge assisted the verdicts, for such perfect twaddle never yet was uttered on the bench'. Torrington to Grey, 14 Sept. 1848, Letters on Ceylon, 104.
90. 64. Letter quoted in Hansard, cxvii (29 May 1851), Thesiger, 175.
91. 65. Ibid.
92. 66. Torrington to Grey, 12 Sept. 1848, C0 54/251.
93. 67. Torrington to Grey, 13 Oct. 1848, Letters on Ceylon, 111-12.
94. 68. Ibid., 10 Feb. 1849, 137.
95. 69. Ibid., 13 Oct. 1848, 112.
96. 70. This story was not denied by Oliphant when it was put to him by the Ceylon committee. PP, (1851) xxxv, Oliphant Q. 6955. See also, Henderson, 'Rebellion in Ceylon', 84.
97. 70. This story was not denied by Oliphant when it was put to him by the Ceylon committee. PP, (1851) xxxv, Oliphant Q. 6955. See also, Henderson, 'Rebellion in Ceylon', 84.
98. 71. Morning Chronicle, 10 March 1851.
99. 72. Ibid., 3 April 1851.
100. 73. The main provisions of the Act had been copied from similar legislation passed in the Cape Colony. For complete text, see PP (1850), xii, Appendix no. 2, 404.
101. 74. When in Sept. 1848 Lord Grey began to receive reports of excesses under martial law, he urged Torrington to limit its 'severity'. There should be no more violence, Grey stated, than 'what is inevitably called for by the occasion, and that the prevailing character of the measures ... should at all times be of moderation and clemency toward those who have been misled'. This message did not reach Torrington until after martial law had ended. Grey to Torrington, 24 Oct. 1848, CO 885/3.
102. 75. For examples, see Elliott to Grey, 15 Sept. 1848, CO 54/251.
103. 76. When in Ceylon, McChristie had been allied with Elliott in an agitation against the then governor Stewart Mackenzie. De Silva, Letters on Ceylon, 11.
104. 77. Ludowyk, History of Ceylon, 86-87. McChristie later testified before the Ceylon select committee. His second-hand accounts of Torrington's actions under martial law gave impetus to the inquiry in its early stages. See Hansard, cxvii (27 May 1851), Baillie, 11.
105. 77. Ludowyk, History of Ceylon, 86-87. McChristie later testified before the Ceylon select committee. His second-hand accounts of Torrington's actions under martial law gave impetus to the inquiry in its early stages. See Hansard, cxvii (27 May 1851), Baillie, 11.
106. 78. The committee was to investigate patronage, financial distress, and civil unrest in Guiana. Morrell, Colonial Policy, 243-44, 252. In the result, however, Ceylon became its single focus of attention.
107. 79. Doig, 'Torrington's Government', 54.
108. 80. For general accounts of parliamentary politics in this period, see Conacher, Peelites, ch.3; Prest, Lord John Russell, 289-341.
109. 80. For general accounts of parliamentary politics in this period, see Conacher, Peelites, ch.3; Prest, Lord John Russell, 289-341.
110. 81. Both Baillie and Adderley had axes to grind with the Whig government, Baillie having failed in his efforts to persuade the government to sustain tariff protections for the West Indian planters, Adderley for having been frustrated in efforts to establish an Anglican settlement in New Zealand.
111. 82. Earl Grey, The Colonial Policy of Lord John Russell's Administration (London, 1853), 1, 187.
112. 83. Grey engaged in delay, made incomplete disclosures of documents and kept witnesses from the committee. For contemporary accounts of these tactics, see Hansard, cviii (11 Feb. 1850), Hume, 643; 'Mysteries', Quarterly Review, 119.
113. 83. Grey engaged in delay, made incomplete disclosures of documents and kept witnesses from the committee. For contemporary accounts of these tactics, see Hansard, cviii (11 Feb. 1850), Hume, 643; 'Mysteries', Quarterly Review, 119.
114. 84. Hansard, cviii (11 Feb. 1850), 650.
115. 85. Torrington to Grey, 14 April 1850, Letters on Ceylon, 213.
116. 86. Hansard, cviii (11 Feb. 1850), 654-57.
117. 87. Ibid.
118. 88. Disraeli, quoted in the Morning Chronicle, 18 March 1851.
119. 89. F.W. Maitland, the Constitutional History of England (Cambridge, 1926), 380. By the mid-nineteenth century, the judicial functions of parliament were extremely limited. See O. Hood Phillips, Constitutional and Administrative Law, 6th ed. (London, 1978), 124-5.
120. 89. F.W. Maitland, the Constitutional History of England (Cambridge, 1926), 380. By the mid-nineteenth century, the judicial functions of parliament were extremely limited. See O. Hood Phillips, Constitutional and Administrative Law, 6th ed. (London, 1978), 124-5.
121. 90. For example, see Hansard, cviii (11 Feb. 1850), Stuart, 545.
122. 91. Ibid., cxv (17 March 1851), 27.
123. 92. Ibid., cxvii (27 May 1851), Murphy, 34; Cockburn, 220.
124. 92. Ibid., cxvii (27 May 1851), Murphy, 34; Cockburn, 220.
125. 93. Morning Chronicle, 13 March 1851.
126. 94. Henderson, Rebellion in Ceylon, 191.
127. 95. Hume later remarked that he 'was never on a Committee where the Government party took such means to prevent the elucidation of truth'. Hansard, cxvii (27 May 1851), 82.
128. 96. Grey's exasperation with Torrington was made plain in his private correspondence with the governor. See for example Torrington to Grey, 19 June 1850, de Silva, Letters on Ceylon, 218.
129. 97. For discussion of these letters, see 'Mysteries', Quarterly Review, 124-25. For the government's official position on them, see Hansard, cxiii (12 August 1850), Hawes, 1046. Although in private letters Grey sharply criticized Torringlon for his many ill-advised public dispatches, as late as February 1849 he pledged that Torrington would be defended 'strongly in public'. In other private correspondence, Grey insisted that Torrington would weather the storm if he kept quiet and made no additional mistake. Grey to Torrington, 19 June 1850 and 24 July 1850, Letters on Ceylon, 218-22.
130. 97. For discussion of these letters, see 'Mysteries', Quarterly Review, 124-25. For the government's official position on them, see Hansard, cxiii (12 August 1850), Hawes, 1046. Although in private letters Grey sharply criticized Torringlon for his many ill-advised public dispatches, as late as February 1849 he pledged that Torrington would be defended 'strongly in public'. In other private correspondence, Grey insisted that Torrington would weather the storm if he kept quiet and made no additional mistake. Grey to Torrington, 19 June 1850 and 24 July 1850, Letters on Ceylon, 218-22.
131. 97. For discussion of these letters, see 'Mysteries', Quarterly Review, 124-25. For the government's official position on them, see Hansard, cxiii (12 August 1850), Hawes, 1046. Although in private letters Grey sharply criticized Torringlon for his many ill-advised public dispatches, as late as February 1849 he pledged that Torrington would be defended 'strongly in public'. In other private correspondence, Grey insisted that Torrington would weather the storm if he kept quiet and made no additional mistake. Grey to Torrington, 19 June 1850 and 24 July 1850, Letters on Ceylon, 218-22.
132. 98. Grey warranted that he had supported Torrington 'to the utmost of my power as long as it was possible'. Ibid., 24 July 1850, 222.
133. 99. According to The Times, 30 May 1851.
134. 100. These reports, prepared by judges sent from Madras, had been commissioned on the advice of 'the late lamented Sir Robert Peel'. Hansard, cxiii (25 July 1850), Baillie, 227.
135. 101. Morning Chronicle, 12 March 1851. Watson faced court martial. The report concluded that 'there was no reasonable doubt' that the signatures were Watson's. See Report of Commissioners, PP (1851), xxii.
136. 101. Morning Chronicle, 12 March 1851. Watson faced court martial. The report concluded that 'there was no reasonable doubt' that the signatures were Watson's. See Report of Commissioners, PP (1851), xxii.
137. 102. As reported in the Morning Chronicle, 12 March 1851.
138. 103. Russell threatened to delay the introduction of his budget until the motion of censure was debated. Morning Chronicle and The Times, 18 March 1851.
139. 104. Incensed by the decision to delay the motion, Roebuck harangued Baillie in the House of Commons. For a description of this highly charged exchange, see 'Legislating with Difficulties', Fraser's, 598. In the aftermath of this debate Roebuck recorded the following remarks in his diary: 'I feel my last speech on the Ceylon affair has produced an effect. The canters of the Bright set will not like it; but the common sense of the country is with me.' Quoted in R. Leader (ed.), Life and Letters of John A. Roebuck, with chapters of autobiography (London, 1897), 232.
140. 104. Incensed by the decision to delay the motion, Roebuck harangued Baillie in the House of Commons. For a description of this highly charged exchange, see 'Legislating with Difficulties', Fraser's, 598. In the aftermath of this debate Roebuck recorded the following remarks in his diary: 'I feel my last speech on the Ceylon affair has produced an effect. The canters of the Bright set will not like it; but the common sense of the country is with me.' Quoted in R. Leader (ed.), Life and Letters of John A. Roebuck, with chapters of autobiography (London, 1897), 232.
141. 105. This account in the Morning Chronicle, 19 March 1851.
142. 106. Torrington gave his speech on the pretext of a motion by one of the peers for a copy of the evidence given before the Ceylon select committee of the House of Commons. Morning Chronicle, 1 April 1850.
143. 107. 'Legislating under Difficulties', 595.
144. 108. '[W]e cannot forget', the Morning Chronicle commented, 'that the approaching debate bears the character of a political manoeuver; for it is obviously meant to anticipate the judgment of the House of Commons, and to nullify the resolutions which are proposed by Mr. Baillie.' 1 April 1851.
145. 109. 'Legislating under Difficulties', 596.
146. 110. Hansard, cxv (1 April 1851), 844.
147. 111. Torrington's speech also sought to establish that his policies had not caused the uprising. 'The Kandyan rebellion', Torrington claimed, 'had been generated by circumstances long anterior in date, and over which I had no control.' Ibid., 857.
148. 112. Ibid.
149. 113. These uprisings were later briefly recounted by The Attorney-General, Alexander Cockburn. Hansard, cxvii (29 May 1851), 227-8.
150. 114. Hansard, cxv (1 April 1851), 854.
151. 115. Ibid., 853. Subsequent quotations, 852-66.
152. 116. Torrington concluded his speech by alluding to two subjects of a 'personal nature'. He denied having said anything improper when he refused Selby a slay of execution in the case of the Buddhist priest, but admitted to 'impropriety' in having misled two of his senior civil servants in private correspondence. Ibid., 875-76.
153. 117. Grey rather vaguely asserted, for example, that Torrington and his officers had acted 'with high feeling of the great responsibility that was thus imposed on them'. Ibid., 879. Subsequent quotations, 876-80.
154. 118. For detailed accounts of Wellington's response, see 'Legislating under Difficulties', Fraser's Magazine, May 1851; Morning Chronicle, 2 April 1851.
155. 118. For detailed accounts of Wellington's response, see 'Legislating under Difficulties', Fraser's Magazine, May 1851; Morning Chronicle, 2 April 1851.
156. 119. Hansard, cxv (1 April 1851), 880.
157. 120. Ibid.
158. 121. The Duke appears to have been referring to his proclamation of martial law in the south of France in 1814. See reference to this by Baillie in Hansard, cxvii (27 May 1851), 18.
159. 122. Murphy professed to be an 'intimate friend' of Torrington who 'had consented to appear as an advocate' on his behalf. Morning Chronicle, 28 May 1851.
160. 123. It was reported in the Chronicle that Roebuck took up Torrington's brief 'at the instance of certain railway connections of the noble lord'. Ibid.
161. 124. As the motion was referred to by Cockburn. Hansard, cxvii (29 May 1851), 226. See also The Times, 2 April 1851.
162. 124. As the motion was referred to by Cockburn. Hansard, cxvii (29 May 1851), 226. See also The Times, 2 April 1851.
163. 125. Morning Chronicle, 28 May 1851; The Times, 30 May 1851.
164. 125. Morning Chronicle, 28 May 1851; The Times, 30 May 1851.
165. 126. Hansard, cxvii (27 May 1851), 6-33.
166. 127. Born in Scotland in 1799, a barrister of the Inner Temple since 1823, Dundas had had a successful career as an advocate of the Northern circuit and as a Liberal MP. He was remembered as an 'accomplished scholar'. DNB, IV, 185. W.F. Finlason, the leading mid-Victorian authority on martial law, called Dundas 'the greatest master of military law in the world'. Finlason, Justice to a Colonial Governor: The Case of Mr. Eyre (London, 1868), 1xi.
167. 127. Born in Scotland in 1799, a barrister of the Inner Temple since 1823, Dundas had had a successful career as an advocate of the Northern circuit and as a Liberal MP. He was remembered as an 'accomplished scholar'. DNB, IV, 185. W.F. Finlason, the leading mid-Victorian authority on martial law, called Dundas 'the greatest master of military law in the world'. Finlason, Justice to a Colonial Governor: The Case of Mr. Eyre (London, 1868), 1xi.
168. 128. PP, (1851), xii, Q. 5431-5520.
169. 129. Hansard, cxvii (27 May 1851), 16.
170. 130. This assertion was based on the questionable assumption that the courts martial provision of the Mutiny Act applied to civilians detained and charged under a proclamation of martial law. Dundas expressed doubt on this very point. PP, (1851), xii, Q. 5435.
171. 131. Hansard, cxvii (27 May 1851), 28. Subsequent quotations, 28-209.
172. 132. According to Gladstone, the 'most solemn prerogative of government' is the power 'to take human life itself'. Ibid., 209.
173. 133. 'If there was a rebellion, it was not a vindictive, atrocious or murderous rebellion. Loss of life caused by the rebels there was none.' Ibid., 210, 218.
174. 134 Ibid., 216.
175. 135. Morning Chronicle, 28 May 1851.
176. 136. Torrington's actions and character also were defended by James Hogg, a barrister, former chairman of the East India Company and, more recently, Conservative member of the Ceylon committee. Having listened 'judicially' to the Ceylon witnesses, Hogg had concluded that Torrington had acted 'honestly, consistently and uprightlhy, and, whether rightly or wrongly, had always acted with a regard to the public service of the country'. Hogg also attacked the character and qualifications of Ceylon's Queen's Advocate, Henry Selby. Ibid., 137-38, 148.
177. 137. Hansard, cxvii (29 May 1851), 35.
178. 138. Ibid., 227.
179. 139. Ibid., 244-5.
180. 140. According to the Peelite Morning Chronicle, 30 May 1851, the principal explanation for the division was the dread of MPs of a 'Protectionist Government' rather than the principles at issue in the Ceylon debate.
181. 141. The Times, 30 May 1851.
182. 142. For an account of unrest in the British empire 1848-50, see Taylor, 'The 1848 rebellions and the British empire', Past and Present, forthcoming.
183. 143. The Ceylon debate was symptomatic of what James Vernon has called an unwritten constitution 'continually in the process of construction and (re-)constitution'. Re-reading the Constitution: New Narratives in the Political History of England's Long Nineteenth Century (Cambridge, 1996), 4.
184. 144. M. Taylor, 'Imperium et Libertas? Rethinking the Radical Critique of Imperialism during the Nineteenth Century', Journal of Imperial and Commonwealth History, 19 (1991), 1. For discussion of similar themes, see F. Whelan, Edmund Burke and India: Political Morality and Empire (Pittsburgh, 1996).
185. 144. M. Taylor, 'Imperium et Libertas? Rethinking the Radical Critique of Imperialism during the Nineteenth Century', Journal of Imperial and Commonwealth History, 19 (1991), 1. For discussion of similar themes, see F. Whelan, Edmund Burke and India: Political Morality and Empire (Pittsburgh, 1996).
186. 145. M. Taylor, The Decline of British Radicalism 1847-1860 (Oxford, 1995), 6.
187. 146. Taylor, 'Imperium et Liberias', 2.
188. 147. P. Joyce, Democratic Subjects: The Self and the Social in Nineteenth Century England (Cambridge, 1994), 193.
189. 148. R. Epstein, Radical Expression: Political Language, Ritual, and Symbol in England, 1790-1850 (Oxford, 1994), 14-28; P. Joyce, Visions of the People: Industrial England and the Question of Class 1848-1914 (Cambridge, 1991), 14-15.
190. 148. R. Epstein, Radical Expression: Political Language, Ritual, and Symbol in England, 1790-1850 (Oxford, 1994), 14-28; P. Joyce, Visions of the People: Industrial England and the Question of Class 1848-1914 (Cambridge, 1991), 14-15.
191. 149. J. Vernon, Politics and the People: A Study in English Political Culture, c. 1815-1867 (Cambridge, 1993), 296.
192. 150. Vernon (ed.), Re-reading the Constitution, 1.
193. 151. For this quotation and for a critical appraisal of the linguistic turn in political-constitutional history, see B. Kinzer, review of Vernon, Re-reading the Constitution, in Canadian Journal of History, 32 (1997), 275-7.
194. 152. Grainger, 'The view from Britain', 120.
195. 153. Hansard, cxvii (29 May 1851), 35.
196. 154. Roebuck began his career as an 'advanced and pugnacious radical' in the 1830s, but ended it as a Tory Privy Councillor in the 1870s. Even in his earlier career, Roebuck advocated imperial expansion and the stern government of England's non-European possessions. See 'J.A. Roebuck', in Baylen and Gossman (eds.), Biographical Dictionary of Modern British Radicals, II (Sussex, 1984), 436-41.
197. 155. Hansard, cviii (11 Feb. 1850), 655-6.
198. 156. Ibid., cxvii (27 May 1851), 67-8.
199. 157. Ibid., 75. Roebuck was not alone in this view. In a pamphlet response to an attack on Torrington's martial law, James Steuart contended that 'a governor is not necessarily expected to be a lawyer, nor should his conduct in great political emergencies be judged by strict principles of Law. It is sufficient that his proceedings should be judged by a political standard, tempered to the exigency of the danger ... under which he is called to act.' See Steuart, Observations on Colonel Forbes (Colombo, 1850), 11.
200. 158. Hansard, cxvii (27 May 1851), 68-75.
201. 159. By the 1850s Roebuck openly contended for an even more radical solution to the 'problem' of non-white and aboriginal populations in the colonies: extermination. For a discussion of Roebuck's exterminationism, see Leader, Life and Letters of John Arthur Roebuc, 232, 248, 300.
202. 160. Torrington to Grey, 14 Sept. 1848, CO 54/251.
203. 161. As Torrington wrote in a letter to Grey in Oct. 1848: 'I feel persuaded that if martial law had not been proclaimed at the outset, and a wholesome fear instilled in the minds of the evil-disposed ... there would have resulted ... the most lawless system of plundering and violence.' Torrington to Grey, 14 Oct. 1848, ibid.
204. 162. Hansard, cxvii (27 May 1851), 31-5, 85-9.
205. 163. 'Mysteries', 127.
206. 164. In his response to Wellington's withering criticisms in the House of Lords, Grey took pains to emphasize his agreement that martial law meant 'setting aside all law, and acting under the military power'. Grey also agreed that a proclamation of martial law did not imply subsequent legal immunity. Persons who had committed otherwise illegal acts under martial law were vulnerable to prosecution unless protected by some legislation of indemnity. Grey further claimed that these propositions had been endorsed by the Attorney-General and two eminent judges, Lords Campbell and Cottenham. Hansard, cxv (1 April 1851), 881-2.
207. 165. PP (1851), xii, Q. 5469.
208. 166. Ibid., Gladstone, Q. 5477.
209. 167. Ibid., Peel, Q. 5505.
210. 168. Ibid., Q. 5517.
211. 169. Hansard, cxvii (29 May 1851), 208-20.
212. 170. Ibid., Baillie, 117.
213. 171. Vernon, Re-reading the Constitution, 2.
214. 172. See R.W. Kostal, Governor Eyre and the Rule of Law in Victorian England (Oxford, forthcoming).