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(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.

Is concerned at evidence before the Hunter Committee showing that officers inflicted punishments of their own devising and passed objectionable orders such as the ‘crawling order’. He presumes that the Committee will make recommendations about actions it considers unjustified and inconsistent with the orders in the report [by Hailey] for the province, but asks what will be done if an action is found to be an excess or abuse of martial law.

(Draft of A2/23/9, in the hand of J. W. Hose.)

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

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.)