CHAPTER III.

THE INDIAN EMPIRE.

LEGALLY, the expression India means "British India, (a) together with any territories of any native prince or chief under the suzerainty of his Majesty exercised through the GovernorGeneral of India or any officer subordinate to him." (b)

History of British Sovereignty.-The history of British sovereignty in India is briefly as follows:-In the year 1600 Elizabeth granted a charter to the merchants trading to the East Indies, by which they were incorporated as the "Governor and Company of Merchants Trading to the East Indies," and were to enjoy certain trading privileges to the exclusion of all other persons. In 1694 the House of Commons passed a resolution to the effect that "all subjects of England have equal rights to trade to the East Indies unless prohibited by Act of Parliament." (c) The exclusive right of trading was, however, placed upon a statutory basis in 1698, (d) and under the Act of that year and subsequent Acts successive charters continued to be granted to the Company. (e)

In the year 1813 Indian trade, except that with China and the trade in tea, was thrown open to the public, (ƒ) and in

(a) British India means all territories within his Majesty's dominions governed by his Majesty through the Governor-General of India or any officer subordinate to him." (Interpretation Act, 1889, s. 18 (4).) (b) Ib. s. 18 (5).

(c) 5 Parl. Hist. 828. The right of the Crown to grant exclusive trading privileges had previously come before the courts in 1689, in the case of the East India Company v. Sandys, known as the great case of Monopolies, (1685) 10 St. Tri. 371, and held good by the judges.

(d) 9 & 10 Will. III. c. 44.

(e) From 1707 to 1833 the Company bore the name of "The United Company of Merchants trading to the East Indies." In the latter year the name was changed to "The East India Company " by the 3 & 4 Will. IV. c. 85, s. 111.

(f) 53 Geo. III. c. 155, ss. 2, 3.

1833 the Company was forbidden by statute to transact commercial business of any kind. (g) The government of India, however, remained in the hands of the Company, the office of governor-general and the governor-general's council being constituted in 1773, whilst the home management was carried on by a court of directors and a board of control.

In 1853 the Indian Civil Service was thrown open to competition, and in 1858 (the year after the Mutiny) the Crown assumed the government of the country by an Act for the better government of India passed in that year. (h) In 1861 an Act was passed enabling the Crown to erect new high courts for the various provinces, to take the place of the old supreme and sudder courts, (i) and in 1876 the title of "Empress of India" was assumed by Queen Victoria under statutory authority. (k)

Present Constitution.-India is now governed by the Crown, acting on the advice of the secretary of state for India in council, the functions of the secretary of state and the constitution and functions of his council (styled the Council of India) being regulated principally by the Government of India Act, 1858, and the Council of India Act, 1907. () In India the Crown is represented by a governor-general or viceroy, acting with an executive and legislative council, whose composition and functions are regulated chiefly by the Indian Councils Acts of 1861, 1892, and 1909. (m)

The Indian constitution comes nearer to that of a Crown colony than to that of any of our other dependencies. It differs, however, from a Crown colony in this, that the Crown acts upon the advice of the secretary of state for India in council, and not upon the advice of the secretary of state alone. The government of India may also be said to be a paternal as opposed to a representative government. Whether, as is the tendency with other Crown colonies, India will in time attain to full representative institutions is a problem which can only

(g) 3 & 4 Will. IV. c. 85, ss. 3, 4.

(h) 21 & 22 Vict. c. 106.

(i) 24 & 25 Vict. c. 124.

(k) 39 Vict. c. 10.

(1) 21 & 22 Vict. c. 106; amended by 32 & 33 Vict. c. 97; and see 52 & 53 Vict. c. 65; 7 Ed. VII. c. 35.

(m) 24 & 25 Vict. c. 67; 55 & 56 Vict. c. 14; 9 Ed. VII. c. 4.

be solved by time. It is safe to say, however, that such a system, if it comes at all, can only be arrived at by very gradual steps and after the lapse of many years.

The Secretary of State for India. The secretary of state for India is a Cabinet minister, and comes into and goes out of office with the Ministry for the time being. He acts with the advice of the council of India in all matters except those which require urgency or secrecy, (n) but at meetings of the council when the secretary of state is present, in the event of a difference of opinion his decision is final. (0) No expenditure, however, of the revenues of India is legal without the consent of the secretary of state and a majority of his council. (p) The secretary of state in council as representing the Crown may impose what commands he pleases upon the Governor-General in Council. He also makes rules and regulations for the admission of candidates for the Indian Civil Service, who when duly qualified are appointed and promoted by him. (q)

All other appointments, naval and military, and all admissions to service not otherwise provided for, are vested in his Majesty. (r)

The Council of India.-The Council of India consists of not less than ten, or more than fourteen members (as the secretary for state directs), (s) in addition to the secretary of state, who acts as president. (t) They are nominated by the secretary of state, and at least nine of their number must have resided in India for at least ten years, and not left India for more than five years. (u) Formerly they were appointed for life, and held office during good behaviour; now the term of office is seven years, which may be extended for a further term of for special reasons of public advantage. (x)

(q) Ib. s. 32.

(r) Ib. s. 33.

(s) Council of India Act, 1907, 7 Ed. VII. c. 35, s. 1.

(t) Act of 1858, s. 21.

(u) Ib. ss. 8, 10; amended by the Council of India Act, 1907, s. 2. (x) 32 & 33 Vict. c. 97, ss. 2, 3; Council of India Act, 1907, s. 4; and see 39 & 40 Vict. c. 7, as to the appointment of persons having professional or other peculiar qualifications.

The Governor-General in Council.-In India the governorgeneral, or viceroy, is appointed by the Crown under the sign manual (y) on the advice of the Prime Minister, and usually holds office for five years. The superintendence, direction, and control of the civil and military government and revenues is vested in the Governor-General in Council, (2) and the governor-general's council exercises both legislative and executive functions. The executive council, styled "the Council of the Governor-General of India," (a) is composed of five ordinary members (which number may be increased to six at the option of the Crown by the inclusion of an additional member), (b) and these are appointed by his Majesty by warrant under the royal sign manual. (c) The commander-in-chief of the forces in India is an extraordinary member, (d) as also are governors and lieutenant-governors of Presidencies or Provinces when the council meets within their respective territories. (e) The term of office for ordinary members of the council is by custom five years. The council meets and discusses matters of public policy as the Cabinet does in England, to perform formal executive acts, and to prepare measures for enactment by the legislative council. The viceroy acts as president, thus combining in great measure the functions of the constitutional monarch and prime minister in England. He can make rules and regulations for the conduct of business, (ƒ) and his assent is necessary before any measure passed subsequently by the legislative council can become law. (g) In cases where the safety, tranquillity, or interest of the British possessions in India are concerned, the viceroy can act in opposition to his council. (h)

Indian Departments.-The administration is carried on in India by various departments, each of which is controlled by

(y) Act of 1858, s. 39.

(z) 3 & 4 Will. IV. c. 85, s. 39.

(a) 21 & 22 Vict. c. 106, s. 7.

(b) 37 & 38 Vict. c. 91, s. 1; and see 4 Ed. VII. c. 26.

(c) 24 & 25 Vict. c. 67, ss. 3-5; 32 & 33 Vict. c. 97, s. 8.

(d) If the Secretary of State in Council so appoints. (24 & 25 Vict.

c. 67, s. 3.)

(e) Ib. s. 9.

(f) Ib. s. 8. (g) Ib. s. 20.

(h) 33 & 34 Vict. c. 3, s. 5

a permanent secretary under the supervision of one of the members of the viceroy's executive council, the viceroy himself supervising the conduct of foreign affairs. The principal of these departments are

Foreign affairs,

Home affairs,

Army,

Legislative,

Finance,

Revenue and Agriculture,

Public Works,

Commerce and Industry.

The Legislative Council. The viceroy's council for legislative purposes is composed of the same members as the executive council, together with additional members whose numbers have varied from time to time, (i) but are now fixed by the Indian Councils Act, 1909. Under the latter Act the additional members are composed of persons resident in India partly nominated by the viceroy, and partly elected in accordance with regulations (which provide for their numbers, qualifications, mode of election, necessary quorum, term of office, etc.) made by the viceroy subject to approval by the secretary of state. The aggregate number of the nominated and elected members must not exceed sixty. (k) Members of provincial executive councils created under the same Act (viz. the Indian Councils Act, 1909) are also at all times ex-officio members of the viceroy's council, (1) as also are lieutenant-governors and chief commissioners when the council meets for legislative purposes in their territories. (m)

Business is transacted by the legislative council according to the rules and regulations made by the governor-general, which must provide for the discussion of the annual financial statement of the Governor-General in Council, and of any matter of general public interest; and, subject to the rules.

(i) Originally not less than six or more than twelve, Indian Councils Act, 1861, s. 10, increased to ten and sixteen by 55 & 56 Vict. c. 14, s. 1, now as in the text.

(k) Indian Councils Act, 1909, 9 Ed. VII. c. 4, ss. 1, 6, Sched. I. (l) Ib. s. 3 (4).

(m) 33 & 34 Vict, c. 3, s. 3.