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Is anxious that the Viceroy should not inaugurate an inquiry into the recent occurrences in India (which Montagu has assured the House the Viceroy always intended) without further consultation at home, since he believes the Viceroy is unaware of the general desire that the inquiry should be impartial and fearless, and should examine questions such as the use of dum-dum bullets, the needless firing on the crowd, the deportation of innocent people, the unnecessarily harsh use of military law, the mishandling of Gandhi’s prohibition as regards Delhi, the immediate causes of the outbreaks at Lahore, Amritsar, and Ahmedabad, and the actual results of recruiting on temper and economics in the Punjab. Is prepared to let the Viceroy to decide the time, provided there is no postponement, but wishes to be satisfied as to the terms of reference and personnel. The inquiry should, he thinks, be conducted by one man ‘from home’, with an Indian and an official assessor, and he has written to the Viceroy proposing Lord Cave for the appointment. Asks them to draft an official telegram asking that he may be consulted on these matters.

(Carbon copy.)

Responds to A2/23/9, drawing his attention to a previous telegram in which he stated what they propose to do, and a Home Department ‘demi-official’ to Seton. The question of suitable punishments will doubtless be covered by the proposed instruction manual, which he will appoint a military officer to begin preparing at once. The draft will be examined by that officer and Rice in the light of the Hunter Committee report. Suggests that a matter of this kind might be dealt with in an official telegram.

(Typed.)

(i) Passes him an advance copy of a document [A3/27/1?], which will be submitted officially as soon as hectographed copies are obtained.

(ii) ‘Practically means no prosecution unless or until he starts civil disobedience.’

Sends, at Montagu’s request, copies of confidential telegrams [A2/23/12, 21, 18, and 19] for his comment.

(It is unclear whether this, or a typed version, was sent. Cf. A2/23/22.)

(Carbon copy. Text as A2/23/20.)

14 Wellington Square, Chelsea.—He returned to town today, but Seton’s letter had been forwarded to him. Encloses a note [A2/23/23b] in reply. Will come to the office if necessary, but is busy.

(i) Montagu wishes a telegram on the lines of A2/23/24. If they made previous private telegrams official it could go officially. He doubts whether A2/23/12 could be made official, but perhaps it is not necessary to refer to it.

(ii) Duke will see from other files passed on today what a tangle this business has got into. Reference to previous telegrams is probably unnecessary. Suggests that the Joint ‘G & P’[?] and Finance Committee be asked to consider something on the lines of Duke’s draft, and that he himself should try to make a composite draft on the whole matter.

(i) The telegrams in question deal with at least two separate matters: (1) compensation for lives taken and damage done by rioters, and (2) relief to persons left destitute. An official file on (1) has been ‘marked on’ to the ‘J & P’ and Finance [Committee], but if there is no official file on (2) it might be better to send the first part of his telegram [A2/23/24] privately. From the financial point of view the two questions are separate: (1) can be levied in the localities; the question is how to do it; (2) can only be charity at the Government’s expense.

(ii) Has submitted an official draft telegram to be put on a separate file.

(i) The legal adviser has been told that the Privy Council will hear the appeal on the 23rd. It would therefore be safe to promise a reply within a week.

(ii) The Privy Council will hear the appeal on the 23rd. Further orders may be expected in a week.

((ii) is a MS in the hand of S. K. Brown, apparently used for transmission.)

The despatch referred to in A2/23/2 was sent only three months ago, on the occasion of the very sentences that have again impressed Montagu, and it is therefore unsafe to refer to it as suggested. It should also be considered that the Government of India knew that martial law, unmodified, refers to a situation where, in the absence of law, the ‘arm of power’ has to exercise its discretion unfettered to restore order. In this case, however, martial law was not un-modified, since the commissions for grave cases and the summary courts had their powers of punishment laid down. The only unregulated courts were those of military officers trying breaches of purely martial law regulations for which imprisonment or whipping were not suitable punishements. These officers had some instructions, but were not apparently prohibited from using whipping, fines, or imprisonment as punishments if they thought fit. Officers who used such punishments are responsible to their military superiors. The Hunter Committee will probably make relevant recommendations. Has drafted an alternative message [A2/23/3b]. The ‘crawling order’ should probably not be considered as a pun-ishment but as a ‘traffic-regulation of an extreme kind’, since it was not applicable to any particular person; the provision of a cage at Kasur is of a similar character, and the whipping of schoolboys there was carried out at the headmaster’s request. In brief, most of the punishments were regular and authorised, and the unusual orders were designed to cover circumstances which cannot be codified. To make a code of martial law punishments would be to destroy martial law, which involves the displacement of all codes. When martial law is in force military officers must have all powers, though they are responsible for the abuse of those powers.

(Typed copy of A2/23/3a.)

(Cf. A5/2, sheet 174.)

As A2/23/3b, adding that no positive code can be laid down, but officers should be warned against both excessive severity and unnecessary humiliation, and it might be worth formulating some general instructions.

(Revision of A2/23/3b, in the hand of Sir Malcolm Seton.)

The telegram drafted by Seton does not express his view. When the Hunter Committee reports it will be necessary to act promptly, so he wants to let the Viceroy know his thoughts in advance. It is clear that officers administering martial law have felt themselves free to devise what punishments they like, and he wishes to guard against this in future and to warn the Viceroy that, though he is prepared to wait before taking action, they must have recommenda-tions ready. He does not wish to suggest that he would be satisfied with any action consistent with the principles mentioned in Hailey’s report, and objects particularly to the suggestion that flogging is the best punishment for minor breaches of martial law. The suggestion that the social status of the offender should be taken into account will is unlikely to meet the approval of the Commons. He wishes to know the Viceroy’s views on the whipping of schoolboys, and what his draft instructions are to be. Acknowledges that he referred inaccurately to A2/23/1 in A2/23/2. Responds to A2/23/3a, observing that the objectionable punishments were not inflicted by courts but by individual officers, and that he is not prepared to leave them to be checked only by their military superiors; the use of cages for imprisonment and the humiliation inflicted on Indians by racial orders will have a more lasting effect than bloodshed. Decries Hose’s reference to the crawling order as a ‘traffic regulation’ and denies that most of the punishments were regular and authorised. He thinks, however, that it would be difficult and dangerous to hold individuals responsible for particular acts, and is more concerned to prevent a recurrence. Even if the Hunter Commission condemns the acts, there should be no ‘head hunting’.

(Typed.)