The distribution of departments among
ordinary
members of
## p.
## p.
Cambridge History of India - v4 - Indian Empire
103
• Hansard, xxv, 929.
5 Idem, 952.
5
## p. 221 (#257) ############################################
THE MESOPOTAMIA DEBATES
221
.
fewer and wherever possible would be made “official” after dispatch.
The India Office was not established or equipped for the conduct of
an extended campaign outside India. 1
Lord Curzon said that without the machinery of private letters and
telegrams the government of India, an “amazingly complex and dual
form of administration” which had two chiefs, could not go on. Still
these communications should not be employed to such an extent as to
leave the Council of India at home in ignorance of what was being
done. The secretary of state and the viceroy must not become "a kind
of concealed duumvirate”. They would gain by acting with, and not
without, their councils. In the Commons Montagu, who was then
out of office, had attacked the government of India as too wooden,
inelastic and antediluvian for modern purposes. The British democracy
had never enjoyed an opportunity of trying to rule India. Even if the
House of Commons were to give orders to the secretary of state, that
minister could be overruled by a majority of his council in vital
matters. He knew of one case in which
it was a very near thing, where the action of council might without remedy have
involved the government of India in a policy out of harmony with the declared
policy of the House of Commons and the cabinet.
The whole system of the India Office was designed to prevent control
by the House of Commons, for fear that there might be too advanced
a secretary of state. The statutory organisation of the office produced
an apotheosis of circumlocution. The whole system of governing India
must be explored in the light of the Mesopotamian Commission
Report. 2
Mr Chamberlain explained that both Lord Crewe and himself had
acted in relation to the Mesopotamian campaign as spokesmen of His
Majesty's government. Supreme control had been exercised by the
secretary of state on behalf of and by direction of the cabinet. The
India Office was notorganised to conduct militaryoperations and never
attempted to do so. It would therefore have been better if from the
first the control exercised on behalf of His Majesty's government had
been vested in the General Staff or Army Council. All the private
telegrams on which the commission had commented related to the
levying of war, and might, under the act of 1858, have been marked
"secret " instead of private, and then the commission's criticisms in
this connection would have gone by the board. Nothing but injury
could come to national, imperial and Indian interests by mixing up
a debate on a military breakdown, or alleged military mismanage-
ment, with the question of the whole future fabric of Indian govern-
ment. His Majesty's government were already considering a dispatch
from the Government of India on reforms in the political system of
that country:
1 Hansard, xxv, 956, 1027-8.
Idem, xcv, 2199-210.
2
## p. 222 (#258) ############################################
222
THE HOME GOVERNMENT, 1858–1918
1
Immediately after the Mesopotamia debates Mr Austen Chamber-
lain resigned and was succeeded by Mr Montagu. The declaration of
20 August, 1917, shortly followed, and late in the same year, at the
invitation of the viceroy, Lord Chelmsford, the secretary of state
arrived in India. After preliminary conferences at Delhi, he toured
to Calcutta, Madras and Bombay, accompanied by the viceroy, the
home member of the governor-general's council and two members of
the Council of India, one British and one Indian. On the conclusion
of the tour, further consultations were held; and it was not until about
the end of April, 1918, that Mr Montagu returned to England. The
purpose of his visit had been to determine on the spot, and in con-
sultation with the viceroy, what steps should be taken in the direction
of establishing in India government responsible to the Indian peoples.
The joint report of Mr Montagu and Lord Chelmsford, published in
July, 1918, was framed after prolonged discussion with the council of
the governor-general and met with unanimous support from the
Council of India as “on the whole recommending the measures best
adapted to ensure safe and steady progress in the desired direction".
It formed the basis of the act of December, 1919, which materially
changed the constitution under which India had been governed since
the end of the Mutiny.
We have noticed the parting advice of the directors of the East India
Company and the main principles which underlay the legislation of
1858. It was parliament which deliberately organised the system de-
nounced by Mr Montagu in 1917. It was parliament which, desiring
to accord all possible independence to the Council of India, arranged
for that body to contain first an elected and then a co-opted element.
When the legislation of 1869 had invested the secretary of state with
power to appoint all his councillors and with certain other powers of
appointment, the council declined in importance, but for long main-
tained a strong position as an advisory and, in some measure, a con-
trolling body. Under the Morley régime a further decline set in, which
apparently accelerated rather rapidly.
While defending his proposals to the House of Lords in 1914,
Lord Crewe asked consideration for “the perpetual and in some
respects ever-increasing control of parliament, the ever-increasing
force of public opinion in India, and the power of the press in England
and India". With regard to the influence of parliamentary control on
the working of the India Office, Lord George Hamilton remarks:
The moment a crisis occurs, then the department affected which, for the time
being, is working at the very highest tension, is bombarded with questions, inter-
pellations, and demands for returns, which not infrequently absorb many hours of
attention from the very officials who are best qualified to deal with the emergent
subject.
But in pre-war days crises were infrequent, and Lord Crewe's plea
i Parliamentary Reminiscences and Reflections (1886–1906), p. 259.
>
1
## p. 223 (#259) ############################################
INDIA IN PARLIAMENT
223
for changes which cut at the root of the basic principle of the act of
1858 is hardly reconcilable with the testimony of the Montagu-
Chelmsford Report that parliamentary interest in India was neither
well-informed nor well-sustained.
Parliament, according to Mr Montagu and Lord Chelmsford,
should have devised a substitute for the prolonged inquests which
preceded periodical renewals of the Company's charter. Its omission
to do this was largely responsible "for our failure, in the face of a
growing nationalist feeling in India, to think out and work at a policy
of continuous advance”. I Was this omission then a grave mistake?
The parliamentary inquests of pre-Mutiny days did much good.
They belonged to times which were more leisurely than our own,
when the East India Company and its servants were well represented
in parliament, and some front-rank statesmen carefully studied Indian
affairs. Several speeches, for instance, delivered in the House of
Commons on the East India Company bill of 1853 are remarkable for
their intrinsic valuc as well as for the position of the speakers in public
esteem. It is instructive to compare the debates on that measure with
the debates on the Government of India bill of 1919. In 1853 the bill,
which had been prepared after long enquiries by committees of both
houses, was brought in on 9 June after three nights of discussion
distinguished by remarkable speeches by Wood, then president of
the Board of Control, by John Bright and by Sir James Hogg, chair-
man of the court of directors. The second reading lasted four nights. 3
Among the speakers were Macaulay, Cobden, Bright, Disraeli and
Lord John Russell. The bill was afterwards before a committee of the
whole house for eight nights, and was read a third time and passed
on 29 July. 4 The Government of India Bill of 1919, on the other hand,
was presented to the House of Commons on 29 May, was read a
second time on 5 June5 and was on that day sent to a joint committee
of both houses on which the lower house was represented by seven
members. The bill was recommitted on 3 December, 1919, considered
by the Commons on that day and the next, and was read a third time
on the 5th. The president of the Board of Education was the only
member of the cabinet beside the secretary of state who made any
contribution to the debates. The leaders of the Independent Liberal
and Labour parties made brief speeches. There was little inclination
to examine in detail the weighty recommendations of the joint com-
mittee. The debates were meagre.
Between 1858 and 1914 two processes were accelerating. In
England, domestic, Irish and foreign affairs were making more and
more insistent demands on the time and thoughts of members of
parliament; in India administration was becoming more elaborate
1 Report on Indian Constitutional Reforms.
? Hansard, CXXVII, 1093, 1095, 1195, 1230, 1277, 1299, 1352.
• Idem, cxxvIII, cxxix.
• Idem, cxxix, 1009-45.
5 Idem, CXVI, 2295-411.
6 Idem, cxxII, 429-538, 649–790.
a
## p. 224 (#260) ############################################
224 THE HOME GOVERNMENT, 1858–1918
and complex. There was no longer a court of directors with re-
presentatives and friends in the House of Commons. Secretaries of
state for India were increasingly left by preoccupied cabinets and
over-busy parliaments to shape their own policy. They gradually
emancipated themselves from their council and became more absolute
until, shortly after the close of our period, a secretary of state? ven-
tured on a remarkable departure in policy without cabinet sanction
and was compelled to resign office. It is certain that none of his pre-
decessors desired that periodical parliamentary inquests of the old
kind should be renewed. The idea was considered and abandoned by
Lord Morley, a who was fully aware that whereas those enquiries were
held in an atmosphere altogether remote from India, in widely
different times, and were therefore unproductive of any racial excite-
ment in that country, conditions so favourable to searching and fruit-
ful investigation had gone for ever. Perchance, too, he had read these
weighty words of Sir Henry Maine:
It would not be thought a very safe or happy constitutional rule for any civilized
European country that all its political, judicial, administrative and even social
institutions (for these last in India cannot be wholly separated from the others)
should be thrown into the crucible every twenty years. But if this experiment is
to be tried, why of all countries should it be tried on India ?
Maine argued that in view of the intense conservatism of the Indian
masses, of their singular liability to agitation and panic, they were
unlikely to be favourably impressed by the knowledge
that everything connected with the system under which they lived was to be brought
into question and that everybody was to be heard against it. Such enquiries were
formerly comparatively innocuous because in fact the people of India knew little
about them. But India had now been brought close to our shores by the electric
telegraph and the canal, and there are many agencies, unknown even in 1853,
which spread through the people more or less distorted representations of what is
doing in England. "
He went on to suggest that the remedy for parliamentary ignorance
of Indian affairs might be the constitution of a joint committee of both
houses, which would be brought into contact with Indian finance and
would create gradually a class of members familiar with Indian
questions.
Such a joint committee now sits. But if the parliaments of the period
of 1858-1918 failed, for obvious reasons, to study Indian affairs with
much care or thoroughness, they kept their eyes firmly fixed on some
essential principles of policy. They trusted their agents and treated
their servants with fairness and consideration. They dealt in a
generous and non-party spirit with such proposals for constitutional
reform as were put before them by responsible ministers. In financial
questions they desired to treat India with ample fairness. There is no
more striking instance of this than the attitude of parliament in regard
1 The late Mr E. S. Montagu. 2 Morley, Indian Speeches, pp. 22, 50.
: Minute by Sir H. Maine, 8 November, 1880.
3
## p. 225 (#261) ############################################
THE CROWN AND INDIA
225
to the apportionment of the cost of employing Indian troops outside
India on occasions when the interests of the people of that country did
not appear to be directly affected. 1 Even in the financial year 1913-14
the contribution of India toward the upkeep of the imperial navy,
from which she was soon to benefit so feelingly, was only £164,000. 2
This considerate spirit met with a just and welcome reward when on
the outbreak of the great war a resolution was moved by a private
member on the viceroy's legislative council and carried unanimously,
stating that India would "desire in the present emergency that she
should be allowed not only to send her troops but to contribute the
cost of their maintenance and pay". 3
It is certain that no measure ever passed by parliament has better
fulfilled its purpose than the Royal Titles Act. Lytton Strachey
remarks of our English polity that it was in the main a common-sense
structure; but there was always a corner in it where common sense
could not enter, where, somehow or other, the ordinary measurements
were not applicable and the ordinary rules did not apply. “So our
ancestors had laid it down, giving scope, in their wisdom, to that
mystical element which, as it seems, can never quite be eradicated
from the affairs of men. " It is certain that like our own mind, and to
'
a far greater extent, the Indian mind craves for “an unexplored
inexplicable corner” in a polity. And if there is something which
awakens a feeling of the bonds which unite mankind in the thought
of the connection between the Indian people and ourselves, it is
certain that without a symbol of unity which will appeal to both alike,
that feeling would rapidly dwindle. The crown worn by Queen
Victoria and her successors has been far more than a mere symbol of
unity. It has been a strong power 4 and a reconciler in India.
1 Cf. Hansard, 1882, CCLXXIII, 255-307,
2 Idem, 1914, LX, 347.
3 Idem, LXVI, 956.
• Cf. Maconochie, Life of an Indian Civil Servant, p. 125; Lawrence, The India We Served,
239-41.
CHI VI
## p. 226 (#262) ############################################
CHAPTER XII
THE INDIAN GOVERNMENTS
THE CENTRAL AND THE PROVINCIAL GOVERNMENTS
IN INDIA, 1858-1918
The chief of the government in India, the man on the spot there,
HE
was first styled “viceroy and governor-general” in the famous pro-
clamation of 1858. The title of viceroy was not conferred on the
governor-general by any parliamentary statute although it is used in
the warrants of precedence and in the statutes of the knightly orders.
Where the governor-general is regarded as the representative of the
sovereign he is spoken of as viceroy; where he is referred to as the
statutory head of the Government of India he retains his original
title. 1
The superintendence, direction and control of the civil and military
administration were still vested in the governor-general in council,
who was now required by the Government of India Act of 1858
(21 & 22 Vic. c. 108) to pay due attention to such orders as he might
receive from the secretary of state. One of the most arduous tasks
before Lord Canning and his council was the preparation of pro-
posals for reshaping the central government and the governments of
Madras and Bombay. New machinery for legislation had also to be
considered.
THE NEW EXECUTIVE COUNCILS
The changes to be made in the executive councils, and more par-
ticularly in his own council, had for some time engaged Canning's
anxious thought. He corresponded first with Stanley and then with
Wood on the subject, and, although the letters exchanged were
private and confidential, their drift can be clearly gathered from
minutes preserved in the India Office and from Canning's corre-
spondence with Lord Granville. He was evidently dissatisfied with
the Bengal civil servants who had been his original councillors; and
it was only when James Wilson arrived from home as financial mem-
ber, and Bartle Frere joined the council from Bombay, that his ideas
gradually changed. He was still more dissatisfied with the system of
collective business which he found in operation. The council was
working as a board and deciding all questions by a majority vote, the
governor-general possessing an overruling power in matters of grave
importance. Canning wrote to Stanley that, as he was personally
1 Curzon, British Government in India, 11, 49; Strachey, India, p. 50.
? Fitzmaurice, Life of Granville, vol. 1, chaps. vii, xiv.
## p. 227 (#263) ############################################
PROPOSED ABOLITION OF COUNCILS
227
a
responsible for everything, he would manage better if he were relieved
from the necessity of discussing questions with a council. Let the
government of India be vested solely in the viceroy and let him be
able to appoint secretaries to assist him. He would consult the secre-
tary of the department concerned as to particular business, and should
there be a conflict of opinions, he would admit other secretaries to the
discussion. To such an arrangement there were two objections—first
the impossibility of leaving a glorified secretary to carry on the
supreme government in Calcutta when the governor-general left the
Bengal Presidency, and second the difficulty of providing for the
conduct of relations with the legislative council and for the manage-
ment of that council. He made suggestions for overcoming these
obstacles.
Stanley was inclined to agree in principle and laid the matter before
a committee of his council, which, on 23 May, 1859, decided by a
considerable majority that the executive councils at Calcutta, Bombay
and Madras, should all be remodelled on this basis. The "officers of
the departmental secretariats” would be the responsible advisers or
councillors of the governor-general and of local governors. But
methods for carrying this idea into effect had still to be considered.
On 18 June, 1859, Stanley gave place to Wood, who appointed a fresh
committee to deal further with the matter. A majority of this com-
mittee held that the main principle had been accepted. The govern-
ment of India should be vested by law in the governor-general alone.
He should be assisted by as many secretaries as might be thought
necessary. The pay of each secretary would be 65,000 rupees per
Secretaries would be nominated by the governor-general, subject
to confirmation in office by the secretary of state. The governor-
general would be able to consult any or all of his secretaries as he
pleased, but would take decisions himself.
These resolutions, however, provoked strong memoranda from
H. T. Prinsep, the protagonist of the Orientalists in 1835, who was
now one of the dissentients. He pointed out that in fact Canning's
proposals went far towards “unmitigated bureaucratic despotism”,
and that “for the sake of independence” the advisers of the governor-
general or governor ought always to be selected by superior authority.
He urged other considerations. The confidențial reports of the two
committees were sent out to India and were strongly criticised there,
notably by Frere, who minuted on 29 December, 1860, that what the
governor-general had always wanted was not fewer and less re-
sponsible but more and more responsible advisers, always preserving
the power to act entirely on his own view without hindrance from
their dissent. There should be a proper division of labour, each coun-
cillor having his own department to which he could devote his con-
tinuous attention instead of all consulting or pretending to consult
annum.
15-2
## p. 228 (#264) ############################################
228
THE INDIAN GOVERNMENTS
a
on every matter, great or small, as used to be the theory and pretended
practice. Canning had already effected an improvement in pro-
cedure.
In a letter to Wood of 15 May, 1860, Frere had already urged that
the proposals of the two Council of India committees would, ifadopted,
both add to the governor-general's work and seriously diminish his
ability to do it. They would also tend to draw more power to England,
rendering it impossible for the governor-general to take any important
step without the approval of a majority of the council of the secretary
of state, a most undesirable dénouement as India was changing even
faster than England and the Indian experience of even ten years ago
was misleading. He did not speak of the experience of such statesmen
as Mountstuart Elphinstone, whose wisdom was never obsolete.
Frere showed his letters to Canning; and combined with actual
experience of intervention from the India Office his arguments went
far to change the viceroy's mind. 1 Canning had introduced the port-
folio system of doing business into his council. The ordinary work of
departments was now distributed among the members and only the
more important cases were referred to the governor-general or dealt
with collectively. Moreover the reform of the legislative council was
now bulking largely before his eyes. In a letter to Wood of 4 February,
1861, he abandoned the proposal that secretaries should take the
places of councillors. The main point would now be that each coun-
cillor should be identified with a department and should be able to
deal with something more than technicalities. Boxes would no longer
go round carrying papers which could be disposed of without circu-
lation. “We have”, he wrote, “reformed ourselves a good deal, but
I should like to see the new status of members recognised by Act of
Parliament. ” The dispatch was going by that mail. The proposals
were in “as quiet a form as possible”. The reform of the legislative
council was ‘now far more pressing than that of the Executive
Council”.
Wood had originally contemplated a bill for each of these reforms
but instead on 6 June, 1861, introduced one which dealt with both.
The Mutiny, he said, had aggravated the difficulties of administration.
In fact it would be folly to shut our eyes to the increasing difficulties
of our position in India, and for this reason we should put all our
institutions there on the soundest possible foundation. In the Lords
Earl De Grey and Ripon, under-secretary of state, explained that
the policy was “to limit the changes as much as possible and to make
those only which experience showed to be necessary”.
The Councils Act of 1861 (24 & 25 Vic. c. 74) established a governor-
general's executive council of five ordinary members. In 1853 the
1 See Canning to Frere, 24 October, 1860, Life of Frere, 1, 358.
Afterwards secretary of state for India, 1866; viceroy of India, 1880-4. Hansard,
9 July, 1861, p. 586.
## p. 229 (#265) ############################################
THE COUNCILS ACT OF 1861
229
legal member had been permitted to sit and vote at all council
meetings. He had become a fourth ordinary member. But the dis-
organisation of public finances caused by the Mutiny had led to the
appointment of a trained financier as fourth member. A jurist,
however, was also needed, as the law was in process of codification,
and even the Penal Code, which had originally been drafted by
Macaulay, was still incomplete, so a fifth member was added to the
council. Of the five members three must have served the crown or
the Company in India for not less than ten years. One of these was
a military member, always a distinguished soldier; the other two were
civil servants who up to the year 1859 had always been selected from
the Bengal Presidency. The fourth member was a financial expert,
who might or might not have served the crown or the Company
previously; and the fifth or legal member was a barrister of England
or Ireland, or a member of the Faculty of Advocates in Scotland of at
least five years' standing. The commander-in-chief might be, and in
practice always was, an extraordinary member who divided with the
military member the responsibility for the military administration of
the country. He was the executive head of the army and was charged
with its organisation and preparation for war as well as with questions
of promotion. His office was known as army headquarters and was
distinct from the military department of the government which,
presided over by the military member, concerned itself with the
control of supply and transport, with ordnance, remounts, clothing,
medical stores, military works and military finance, and above all
with the preparation of the military budget. Proposals for military
reform or expenditure went from army headquarters to the military
department of the Government of India where they were noted on,
and, if involving expenditure, further proceeded to the finance depart-
ment. Finally they reached the viceroy through the military member
of council. If the viceroy, the military member and the commander-
in-chief were in general agreement, the proposals were carried out.
But if there were disagreement a proposal was either referred back
for further consideration or was laid before the governor-general in
council, debated on, and accepted or rejected by a majority of votes.
Every ordinary member of ihe governor-general's council, assisted
by a secretary, under-secretaries and a sufficient office establishment,
presided over certain departments of the central government. The
governor-general himself held charge of the foreign department which
conducted the correspondence of India with neighbouring powers;
he kept the London cabinet informed on questions of Asiatic policy
connected with India, and supervised the affairs of the native states.
The British representatives at the courts of ruling princes were the
agents of the governor-general and not the representatives of the
Government of India.
The distribution of departments among ordinary members of
## p. 230 (#266) ############################################
230
THE INDIAN GOVERNMENTS
council was a matter of custom, not of law. The act of 1861 conferred
on the governor-general the power to make rules and orders for the
more convenient transaction of business in his council other than the
business at legislative meetings, and provided that every order made
and every act done in accordance with such rules and orders must be
treated as being the order or act of the governor-general in council. 1
Canning's reforms in the conduct of business were thus sanctioned by
statute and the portfolio system was firmly established. Councillors
were able to dispose of unimportant cases belonging to their depart-
ments in the name of the Government of India. Cases in which two
departments differed, or a member proposed to overrule a local
government, or important issues were involved, were laid before the
viceroy together with the views of the members in charge and of their
secretaries. Differences of opinion between a member and the viceroy
were referred to a full council, where decision was taken in accordance
with the views of the majority. If opinions were equally divided the
president had a casting vote. But if a measure were proposed which
seemed to the governor-general to affect essentially the safety, tran-
quillity or interests of "the British possessions in India”, he could
overrule the majority of his council. In such cases any two members
of the dissentient majority might require the t. ansmission to the
secretary of state of the decision taken together with their minutes of
dissent. This overruling power of the governor-general's, which came
down from the acts of 1786 and 1793, was reaffirmed and slightly
expanded by an act of 1870. But however widely the views of a
viceroy might originally differ from those of a majority of his coun-
cillors, there was almost invariably a compelling desire for compro-
mise. 2
If the governor-general in council declared it to be expedient that
he should visit any part of India unaccompanied by his council, he
could in council appoint a member to preside at meetings held in his
absence, with all the powers of the governor-general except those
relating to legislation. Should the governor-general be absent from
a council meeting through indisposition, the senior ordinary member
presided.
Thus the Government of India became a cabinet government pre-
sided over by a governor-general, business being carried on depart-
mentally and the governor-general taking a more active and particular
share in it than is taken by a prime minister in a Western country or
than had been taken by any of his predecessors. The system remained
unaltered during our period. But a sixth ordinary member was
provided, by act of parliament, in 1874, to preside over the depart-
1 [lbert, Digest, sec. 42 (2), p. 103.
: See, for instance, Wolf, Life of Lord Ripon, 11, 50. Lord Curzon wrongly adds the aban-
donment of Kandahar to the instances in which a viceroy overruled his council (op. cit.
II, 73).
3 Îlbert, Government of India, pp. 187-8, clauses 45-6.
## p. 231 (#267) ############################################
.
THE GOVERNOR-GENERAL IN COUNCIL
231
ment of public works. In 1904, on the recommendation of the
secretary of state, the power of appointing a member to this particular
department was converted into a general power, and the public works
member was replaced by a member for commerce and industry.
The next change in the personnel of the council came after warm
discussion and led to the resignation of Lord Curzon in 1905. The
commander-in-chief, Lord Kitchener, had advocated the abolition of
the military member and the replacement of the military department
of the Government of India by an army department presided over by
the commander-in-chief. This proposal was strongly resisted by the
viceroy and the ordinary members of his council on the ground that,
if adopted, it would concentrate military authority in the hands of
the commander-in-chief and would subvert the supremacy of the civil
power by depriving it of independent military advice. Lord Kitchener,
however, maintained his views, urging that proposals from the
commander-in-chief should not reach the Government of India
through any second military adviser, who must necessarily be his
junior in rank and his inferior in experience. Eventually Lord
Kitchener's contention was in substance accepted and was followed
by Lord Curzon's resignation. The commander-in-chief became the
viceroy's sole adviser on all military questions. For a short period
there was a military supply member of inferior status to the former
military member; but this arrangement, as Lord Morley said,
"proved good neither for administration nor economy”. It ceased
in 1909, and the vacancy at the council-board was filled in 1910 by
a newly appointed member in charge of education and sanitation.
For the closing years of our period and throughout the great war the
council consisted of
(a) the commander-in-chief (extraordinary),
(b) the home member,
(c) the financial member,
(d) the legal member,
(e) the commerce and industry member,
(s) the education member,
all holding office for five years.
In the year 1909, on the recommendation of the viceroy and the
secretary of state, a distinguished Hindu barrister, Mr (afterwards
Lord) Sinha, was appointed legal member by the crown. He was
succeeded by a Muhammadan barrister; and when the latter had
completed his term of office, a Hindu high court judge was appointed
education member of the central executive.
The viceroy and governor-general, although invested with para-
mount power in India, was the governor-general in council and,
unlike the secretary of state, possessed a very limited power of separate
action. Rarely, however, did viceroys wish to dispense with the
assistance of their colleagues. John Lawrence was much vexed by
## p. 232 (#268) ############################################
232
THE INDIAN GOVERNMENTS
opposition from certain councillors; but he came to the viceroyalty
a tired man,' had long been accustomed to govern alone in the
Panjab, and was worried by the atmosphere of rapid evolution and
frequent argument which he found in Calcutta. There is much truth
in a sentence of Frere's on 20 March, 1868:
no Governor-General since the time of Clive has had such power and opportunities;
but he fancies the want of progress is owing to some opposing power which only
exists in his own imagination.
Lord Minto complained on 3 July, 1910, that he had
constantly felt that he must depend upon himself alone with the exception of one
or two advisers he had managed to secure and that the councillors sent him by
Lord Morley were not only useless but mischievous.
But Minto evidently wrote under the influence of intense irritation
with a secretary of state who “arrogated to himself complete in-
dependence” in making appointments to the council and would give
little or no weight to the governor-general's objections. 3 As a general
rule, viceroys and their councillors were drawn together, not only by
identity of aim but by force of circumstances, by the logic of the
palpable facts which encompassed all alike. Unity was generally
achieved, for without it lay no salvation. Thus we see one of the
strongest of viceroys, Lord Northbrook, jealously upholding the
statutory rights of his council and refusing to be led into courses
which might infringe those rights. We find Lord Ripon, even when
fully conscious of serious differences which separated him from the
majority of his councillors, observing “There is a very strong desire
to support the Viceroy, of which I have much proof”. 5 We see Lord
Curzon emphasising the gain to a viceroy of acting with, and not
without, his council, and Lord Minto asserting, in opposition to
Lord Morley, the right of the Government of India, as a body, to be
consulted about the Anglo-Russian agreement. There were ex-
tremely few decisions for which the viceroy's council did not share
responsibility with their president. Notable exceptions were the
abolition of import duties on the coarser kinds of cotton cloths in
Lord Lytton's days and the levy of a countervailing excise duty on
Indian cotton goods in the time of Lord Elgin. In both instances the
viceroy's action was due to pressure from the London cabinet; and
on the second occasion his council protested so strongly against a
measure which they considered unjust to Indian interests that the
secretary of state, Sir Henry Fowler, considered it necessary to convey
a weighty warning.
1 Bosworth Smith, Life of Lord Lawrence, 11, 429-41, 589.
Life of Frere, 11, 40 (Frere to Florence Nightingale).
9 Buchan, Memoir of Lord Minto, p. 311.
4 See Mallet, Life of Lord Northbrook, p. 91.
6 Wolf, op. cit. II, 50.
6 Curzon, op. cit. II, 74, 112-19.
? Morley, Recollections, 11, 178-9.
## p. 233 (#269) ############################################
THE LEGISLATIVE COUNCILS
233
“A Government”, he wrote, “whether in Downing Street or Calcutta, must act
as a homogeneous body, not as representing certain political opinions, but as
representing an executive authority which cannot act, whether in administration
or legislation, efficiently unless they act unitedly. . . . The existing law subjects the
Government of India to the control of the Imperial Government, and the Secretary
of State, who exercises that control, is responsible to Parliament. He cannot hold
office if the House of Commons disapproves of his official conduct. India is by the Act of
Parliament governed by and in the name of the Queen, and she governs by the
advice of a responsible minister. . . . So long as any matter of administration or
policy is undecided, every member of the Government of India is at liberty to
express an opinion; but when once a certain line of policy has been adopted under
the direction of the Cabinet, it becomes the clear duty of every member of the
Government of India to consider not what that policy ought to be, but how effect
may best be given to the policy that has been decided on; and if any member of
that Government is unable to do this, there is only one alternative open to him. . . .
The Cabinet have decided that the English precedent applies, and therefore that
the members of the (Viceroy's) Executive Council must, just as members of the
Cabinet do here, vote together (at legislative meetings) in support of Government
measures. If they are unable to do this, then the English precedent applies and the
objecting Member resigns before he either abstains from voting or votes against
the measure. ”1
These instructions were followed by the governor-general's coun-
cillors; but time brings its revenges, and in 1916 the reversal of the
policy imposed on the Government of India in 1894 was initiated by
that government and assented to by the secretary of state.
THE New LEGISLATIVE COUNCILS
No government can govern effectively unless it can legislate. The
subject of machinery for legislation was anxiously considered in
Calcutta and in London. In 1853 Wood, as president of the Board of
Control, had proposed and carried through parliament a measure
designed to provide that the governor-generals council, enlarged for
legislative purposes, should be simply a body which would assist the
supreme government in making laws. 2 Put Dalhousie started this
body off with 136 standing orders and a Hansard of its own. Its
debates were public. Of its additional members one was the Chief
Justice of Bengal, another was one of the judges of the Supreme
Court. The remaining additional members were officials from distant
provinces who were not indisposed to import fresh ideas into the close
atmosphere of Calcutta. 3 Somewhat to the consternation of Wood
the council soon showed signs of considering itself “the nucleus of a
constitutional parliament”. * Dalhousie, one of the most arbitrary of
governors-general, had viewed the prospect with no qualms. 5 But,
as time went on, his successor found the debates sometimes embar-
rassing. He thought it “to be regretted that the Council was on its
1 Mrs R. Hamilton, Life of Lord Wolverhampton, pp. 315-17:
: Wood to Dalhousie, 23 December, 1854 (Lee-Warner, Life of Dalhousie, n1, 237).
3 See Life of Frere, p. 309.
See speech by Lord Ripon, under-secretary of state, Lords' Debates, 9 July, 1861.
See Lee-Warner, op. cit. 11, 234-5.
## p. 234 (#270) ############################################
234
THE INDIAN GOVERNMENTS
first creation invested with forms and modes of procedure so closely
resembling Parliament". 1 Frere, who had to pilot government bills
through the council, agreed and considered that the judges did the
mischief. In writing to the secretary of state he illustrated this view
and found his correspondent entirely sympathetic. The existing
council must go. But what was to take its place? Even as late as
18 February, 1861, Wood was uncertain. No one in 1853, he wrote,
had dreamt of “a debating body with open doors and even quasi-
independence". Lord Dalhousie began wrongly and everything had
gone in the direction of fostering the notion of the council's being “an
independent legislative body”. It was all wrong and very unfortunate
because there was always a sympathy in England for independent
deliberation. Representative bodies, in any real sense, were impossible
in India, and he did not think that “any external element would
really do good”. It might satisfy the English at Calcutta to have an
English merchant or planter in the council, but he was not sure that
it would improve the legislation; and Indians could not be put in who
were “in any sense the exponents of active opinion, or who could take
any part in the deliberations”.
Frere, on 10 April, 1861, drew a vivid picture of racial tension
which had followed on the Mutiny and of European non-official
impatience of official legislation, urging strongly that it was impossible
to recede' and that, in view of the course of events since 1853, Dalhousie
was in the main right. Had he not taken the line which he took,
things would have been worse than they were. The proper course
now was to assist the viceroy with a sort of senate able to advise him
in framing laws which could be of general application to all parts of
India and in confirming or annulling laws shaped by the provincial
legislatures which had been abolished in 1833 but must now be
restored. Whether “any external (legislative) element” on the
governor-general's council would really do any good or not was no
longer a debatable question. Such an external element was essential.
“The days”, he wrote, "are gone when you could govern India without much
caring what the Europeans and Europeanised community say or think of your
measures, and unless you have some barometer and safety-valve in the shape of
a deliberative Council, I believe you will always be liable to very unlooked for and
dangerous explosions. '
He also urged that the new legislative bodies would make fatal
mistakes unless they were assisted by Indian members. 4
Canning agreed with Frere, and Wood largely accepted these views,
but in a pessimistic mood. Writing to Frere on 17 August, 1861, he
ended thus:
1 The governor-general to the secretary of state, 9 December, 1859.
2 Frere to Wood, 21 April, 1861 (Life of Frere, 1, 331. See also pp. 327 and 356).
* Correspondence, Life of Frere, I, 336.
• Idem, pp. 336-41.
## p. 235 (#271) ############################################
THE LEGISLATIVE COUNCILS
235
The future government of India is a problem of the most serious import, utterly
unexampled in history, and one of which it seems to me very difficult to foresec the
progress.
In addressing the House of Commons on 6 June, 1861," he had pointed
out the impossibility of reverting to a system by which the executive
government alone legislated for India. Nor could the English in India
have a representative body to frame the laws by which they should
be governed. It was equally impossible to assemble in India in one
place persons who would be real representatives of the various classes
of the Indian populations. The residents of the towns no more
represented the general Indian population than a highly educated
native of London represented a highland chieftain or a feudal baron
of six centuries ago. The legislative arrangements which he proposed
were based on Canning's recommendations. They became law and
were these.
For purposes of legislation the council of the governor-general was
reinforced by additional members, not less than six or more than
twelve, nominated by the governor-general and holding office for two
years. Of these additional members not less than one-half were non-
official (in no government service). Should the council meet for
legislative purposes within a lieutenant-governor's province, the
lieutenant-governor became an additional member. The functions of
the council when meeting for legislative purposes were strictly limited
to the consideration and enactment of laws. It could transact no
other business. It could entertain no motion except one for leave to
introduce a bill or having reference to a bill actually introduced.
Measures relating to the public revenue or public debt, religion,
military or naval matters, or foreign relations could be introduced
only with the sanction of the governo:-general. His assent was re-
quired to every act passed by the council; and any such act might be
disallowed by the sovereign, acting through the secretary of state.
While the legislative power of the governor-general in council was
wide, it should not affect certain parliamentary enactments, or the
general authority of parliament, or any part of the unwritten laws or
constitution of the United Kingdom whereon the allegiance of the
subject or the sovereignty of the crown might depend. In order to
remove all doubts respecting the validity of rules or regulations
sanctioned by executive orders of the governor-general in council
for the more lately annexed or non-regulation provinces, a clause was
introduced declaring that no such rules or regulations should be
deemed invalid by reason of not having been made in conformity with
the provisions of the charter renewal acts.
Mr A. H. (afterwards Sir Henry) Layard proposed in the House
of Commons to insert an injunction directing that a certain number
of the additional members of the council, when sitting as a legislative
1 Hansard, CLXIII, 638-9.
## p. 236 (#272) ############################################
236
THE INDIAN GOVERNMENTS
body, should be natives of India. 1 But the secretary of state con-
sidered it undesirable to make statutory distinction in this connection
between different classes of Her Majesty's subjects. Some of the
additional members appointed would certainly be natives of India.
The act conferred on the governor-general one power of a novel
character. He was enabled to frame and issue on emergency, without
his council, ordinances which would not remain in force for more than
six months. Such a power had been urgently required on certain
occasions in 1857–8. Long afterwards ordinances were resorted to in
the first month of the great war, when the legislative council was
not sitting and immediate action was required in certain directions.
The power of issuing ordinances was vested in the governor-general
alone in order that the responsibility might be solely his. But the
reasons for such exceptional procedure should always be recorded and
should be submitted to Her Majesty's Governınent together with the
ordinance itself. 3
The power of legislation which had been taken from the governors
in council of Madras and Bombay by the Charter Act of 1833 was
restored in 1861. For legislative purposes these councils also were
expanded by additional members. No line of demarcation was drawn
between subjects reserved for the central and those allotted to the
local legislatures; but while local legislation in certain cases could not
be undertaken without sanction from the governor-general, all acts of
local legislatures required his subsequent assent as well as that of the
local governor and were subject to disallowance by the crown. The
governor-general was directed to establish a legislative council in
Bengal and empowered to set up similar councils in the North-
Western Provinces and the Panjab when the time was ripe. Councils
were established in Bengal in 1862, in the North-Western Provinces
in 1886, and in the Panjab and Burma in 1898.
The legislative councils established by the act of 1861 were com-
mittees by means of which the executive government obtained advice
and help in legislation. While the government enacted the laws
through its council, the public had a right to make itself heard, and
the executive was able to defend its legislation. When the laws were
once made they were binding on the government as well as on the
public. They had been made in a manner which ensured publicity
and discussion and could only be changed by the deliberate and
public process by which they had been made. The councils could only
deliberate on the legislation immediately at issue. They could not call
for information on other subjects or impugn acts of the administra-
tion. 4
In the year 1870 there was a discussion 5 between Lord Mayo's
1 Hansard, CLXIII, 1016, 18 June, 1861.
2 Idem, p. 1027.
3 Ilbert, Digest, pp. 215-16, 566, para. 26, Wood's dispatch of 9 August, 1861.
4 See Report on Constitutional Reforms, 1918, p. 54.
5 See Accounts and Papers, 15, East India, 1876, LVI, 6-10.
5
## p. 237 (#273) ############################################
LEGISLATIVE CONTROL FROM LONDON
237
government and the Duke of Argyll, then secretary of state, the former
claiming that they had been endowed by section 22 of the 1861
Councils Act with legislative discretion which they should exercise to
the best of their judgment. The secretary of state could, of course,
disallow any law which they passed. They could not, however, be expected
to introduce any measure of which they disapproved.
Any other view would invest the Secretary of State with the character of the
legislator for British India and would convert the Legislative Council into a mere
instrument to be used by him for that purpose.
On 24 November, 1870, the duke replied that theoretical incon-
veniences were inseparably connected with the working of such a
machinery of government as t'iat through which the empire of India
was ruled from England, but these could in practice be reduced to
a minimum by mutual respect on the part of those concerned. One
great principle underlay the whole system. The final control and direction of
affairs in India rested with the Home Government. It made no real difference
if its directions related to legislative affairs. If the crown's interposition
were limited to a veto on acts passed in India, the queen's government
would be helpless to secure legislative sanction for any measures
however essential it might deem them to be, for the welfare or safety
of the Indian Empire. It followed, then, that this government must
hold in its hands the ultimate power of requiring the governor-
general to introduce a measure and requiring the members of the
Indian government to vote for it. This was the practice in all parts
of the queen's dominions where the authority of the legislative body
was not derived from the principle of popular representation. It
was a question of abstract right, not of ordinary procedure. It was
only necessary to bear in mind where the seat of ultimate authority
was placed in order to secure on both sides that fairness and modera-
tion without which no political constituțion could work with smooth-
ness and success. Lord Mayo's government on 1 February, 1871,
accepted this doctrine, as it defined a principle which they had never
intended to question; they were glad, however, to hear that the
ruling would not be applied to ordinary procedure but only “with
great deliberation and on the rarest occasions”.
The enlargements of the legislative councils in 1892, 1909 and 1919
are described in later chapters.
• Hansard, xxv, 929.
5 Idem, 952.
5
## p. 221 (#257) ############################################
THE MESOPOTAMIA DEBATES
221
.
fewer and wherever possible would be made “official” after dispatch.
The India Office was not established or equipped for the conduct of
an extended campaign outside India. 1
Lord Curzon said that without the machinery of private letters and
telegrams the government of India, an “amazingly complex and dual
form of administration” which had two chiefs, could not go on. Still
these communications should not be employed to such an extent as to
leave the Council of India at home in ignorance of what was being
done. The secretary of state and the viceroy must not become "a kind
of concealed duumvirate”. They would gain by acting with, and not
without, their councils. In the Commons Montagu, who was then
out of office, had attacked the government of India as too wooden,
inelastic and antediluvian for modern purposes. The British democracy
had never enjoyed an opportunity of trying to rule India. Even if the
House of Commons were to give orders to the secretary of state, that
minister could be overruled by a majority of his council in vital
matters. He knew of one case in which
it was a very near thing, where the action of council might without remedy have
involved the government of India in a policy out of harmony with the declared
policy of the House of Commons and the cabinet.
The whole system of the India Office was designed to prevent control
by the House of Commons, for fear that there might be too advanced
a secretary of state. The statutory organisation of the office produced
an apotheosis of circumlocution. The whole system of governing India
must be explored in the light of the Mesopotamian Commission
Report. 2
Mr Chamberlain explained that both Lord Crewe and himself had
acted in relation to the Mesopotamian campaign as spokesmen of His
Majesty's government. Supreme control had been exercised by the
secretary of state on behalf of and by direction of the cabinet. The
India Office was notorganised to conduct militaryoperations and never
attempted to do so. It would therefore have been better if from the
first the control exercised on behalf of His Majesty's government had
been vested in the General Staff or Army Council. All the private
telegrams on which the commission had commented related to the
levying of war, and might, under the act of 1858, have been marked
"secret " instead of private, and then the commission's criticisms in
this connection would have gone by the board. Nothing but injury
could come to national, imperial and Indian interests by mixing up
a debate on a military breakdown, or alleged military mismanage-
ment, with the question of the whole future fabric of Indian govern-
ment. His Majesty's government were already considering a dispatch
from the Government of India on reforms in the political system of
that country:
1 Hansard, xxv, 956, 1027-8.
Idem, xcv, 2199-210.
2
## p. 222 (#258) ############################################
222
THE HOME GOVERNMENT, 1858–1918
1
Immediately after the Mesopotamia debates Mr Austen Chamber-
lain resigned and was succeeded by Mr Montagu. The declaration of
20 August, 1917, shortly followed, and late in the same year, at the
invitation of the viceroy, Lord Chelmsford, the secretary of state
arrived in India. After preliminary conferences at Delhi, he toured
to Calcutta, Madras and Bombay, accompanied by the viceroy, the
home member of the governor-general's council and two members of
the Council of India, one British and one Indian. On the conclusion
of the tour, further consultations were held; and it was not until about
the end of April, 1918, that Mr Montagu returned to England. The
purpose of his visit had been to determine on the spot, and in con-
sultation with the viceroy, what steps should be taken in the direction
of establishing in India government responsible to the Indian peoples.
The joint report of Mr Montagu and Lord Chelmsford, published in
July, 1918, was framed after prolonged discussion with the council of
the governor-general and met with unanimous support from the
Council of India as “on the whole recommending the measures best
adapted to ensure safe and steady progress in the desired direction".
It formed the basis of the act of December, 1919, which materially
changed the constitution under which India had been governed since
the end of the Mutiny.
We have noticed the parting advice of the directors of the East India
Company and the main principles which underlay the legislation of
1858. It was parliament which deliberately organised the system de-
nounced by Mr Montagu in 1917. It was parliament which, desiring
to accord all possible independence to the Council of India, arranged
for that body to contain first an elected and then a co-opted element.
When the legislation of 1869 had invested the secretary of state with
power to appoint all his councillors and with certain other powers of
appointment, the council declined in importance, but for long main-
tained a strong position as an advisory and, in some measure, a con-
trolling body. Under the Morley régime a further decline set in, which
apparently accelerated rather rapidly.
While defending his proposals to the House of Lords in 1914,
Lord Crewe asked consideration for “the perpetual and in some
respects ever-increasing control of parliament, the ever-increasing
force of public opinion in India, and the power of the press in England
and India". With regard to the influence of parliamentary control on
the working of the India Office, Lord George Hamilton remarks:
The moment a crisis occurs, then the department affected which, for the time
being, is working at the very highest tension, is bombarded with questions, inter-
pellations, and demands for returns, which not infrequently absorb many hours of
attention from the very officials who are best qualified to deal with the emergent
subject.
But in pre-war days crises were infrequent, and Lord Crewe's plea
i Parliamentary Reminiscences and Reflections (1886–1906), p. 259.
>
1
## p. 223 (#259) ############################################
INDIA IN PARLIAMENT
223
for changes which cut at the root of the basic principle of the act of
1858 is hardly reconcilable with the testimony of the Montagu-
Chelmsford Report that parliamentary interest in India was neither
well-informed nor well-sustained.
Parliament, according to Mr Montagu and Lord Chelmsford,
should have devised a substitute for the prolonged inquests which
preceded periodical renewals of the Company's charter. Its omission
to do this was largely responsible "for our failure, in the face of a
growing nationalist feeling in India, to think out and work at a policy
of continuous advance”. I Was this omission then a grave mistake?
The parliamentary inquests of pre-Mutiny days did much good.
They belonged to times which were more leisurely than our own,
when the East India Company and its servants were well represented
in parliament, and some front-rank statesmen carefully studied Indian
affairs. Several speeches, for instance, delivered in the House of
Commons on the East India Company bill of 1853 are remarkable for
their intrinsic valuc as well as for the position of the speakers in public
esteem. It is instructive to compare the debates on that measure with
the debates on the Government of India bill of 1919. In 1853 the bill,
which had been prepared after long enquiries by committees of both
houses, was brought in on 9 June after three nights of discussion
distinguished by remarkable speeches by Wood, then president of
the Board of Control, by John Bright and by Sir James Hogg, chair-
man of the court of directors. The second reading lasted four nights. 3
Among the speakers were Macaulay, Cobden, Bright, Disraeli and
Lord John Russell. The bill was afterwards before a committee of the
whole house for eight nights, and was read a third time and passed
on 29 July. 4 The Government of India Bill of 1919, on the other hand,
was presented to the House of Commons on 29 May, was read a
second time on 5 June5 and was on that day sent to a joint committee
of both houses on which the lower house was represented by seven
members. The bill was recommitted on 3 December, 1919, considered
by the Commons on that day and the next, and was read a third time
on the 5th. The president of the Board of Education was the only
member of the cabinet beside the secretary of state who made any
contribution to the debates. The leaders of the Independent Liberal
and Labour parties made brief speeches. There was little inclination
to examine in detail the weighty recommendations of the joint com-
mittee. The debates were meagre.
Between 1858 and 1914 two processes were accelerating. In
England, domestic, Irish and foreign affairs were making more and
more insistent demands on the time and thoughts of members of
parliament; in India administration was becoming more elaborate
1 Report on Indian Constitutional Reforms.
? Hansard, CXXVII, 1093, 1095, 1195, 1230, 1277, 1299, 1352.
• Idem, cxxvIII, cxxix.
• Idem, cxxix, 1009-45.
5 Idem, CXVI, 2295-411.
6 Idem, cxxII, 429-538, 649–790.
a
## p. 224 (#260) ############################################
224 THE HOME GOVERNMENT, 1858–1918
and complex. There was no longer a court of directors with re-
presentatives and friends in the House of Commons. Secretaries of
state for India were increasingly left by preoccupied cabinets and
over-busy parliaments to shape their own policy. They gradually
emancipated themselves from their council and became more absolute
until, shortly after the close of our period, a secretary of state? ven-
tured on a remarkable departure in policy without cabinet sanction
and was compelled to resign office. It is certain that none of his pre-
decessors desired that periodical parliamentary inquests of the old
kind should be renewed. The idea was considered and abandoned by
Lord Morley, a who was fully aware that whereas those enquiries were
held in an atmosphere altogether remote from India, in widely
different times, and were therefore unproductive of any racial excite-
ment in that country, conditions so favourable to searching and fruit-
ful investigation had gone for ever. Perchance, too, he had read these
weighty words of Sir Henry Maine:
It would not be thought a very safe or happy constitutional rule for any civilized
European country that all its political, judicial, administrative and even social
institutions (for these last in India cannot be wholly separated from the others)
should be thrown into the crucible every twenty years. But if this experiment is
to be tried, why of all countries should it be tried on India ?
Maine argued that in view of the intense conservatism of the Indian
masses, of their singular liability to agitation and panic, they were
unlikely to be favourably impressed by the knowledge
that everything connected with the system under which they lived was to be brought
into question and that everybody was to be heard against it. Such enquiries were
formerly comparatively innocuous because in fact the people of India knew little
about them. But India had now been brought close to our shores by the electric
telegraph and the canal, and there are many agencies, unknown even in 1853,
which spread through the people more or less distorted representations of what is
doing in England. "
He went on to suggest that the remedy for parliamentary ignorance
of Indian affairs might be the constitution of a joint committee of both
houses, which would be brought into contact with Indian finance and
would create gradually a class of members familiar with Indian
questions.
Such a joint committee now sits. But if the parliaments of the period
of 1858-1918 failed, for obvious reasons, to study Indian affairs with
much care or thoroughness, they kept their eyes firmly fixed on some
essential principles of policy. They trusted their agents and treated
their servants with fairness and consideration. They dealt in a
generous and non-party spirit with such proposals for constitutional
reform as were put before them by responsible ministers. In financial
questions they desired to treat India with ample fairness. There is no
more striking instance of this than the attitude of parliament in regard
1 The late Mr E. S. Montagu. 2 Morley, Indian Speeches, pp. 22, 50.
: Minute by Sir H. Maine, 8 November, 1880.
3
## p. 225 (#261) ############################################
THE CROWN AND INDIA
225
to the apportionment of the cost of employing Indian troops outside
India on occasions when the interests of the people of that country did
not appear to be directly affected. 1 Even in the financial year 1913-14
the contribution of India toward the upkeep of the imperial navy,
from which she was soon to benefit so feelingly, was only £164,000. 2
This considerate spirit met with a just and welcome reward when on
the outbreak of the great war a resolution was moved by a private
member on the viceroy's legislative council and carried unanimously,
stating that India would "desire in the present emergency that she
should be allowed not only to send her troops but to contribute the
cost of their maintenance and pay". 3
It is certain that no measure ever passed by parliament has better
fulfilled its purpose than the Royal Titles Act. Lytton Strachey
remarks of our English polity that it was in the main a common-sense
structure; but there was always a corner in it where common sense
could not enter, where, somehow or other, the ordinary measurements
were not applicable and the ordinary rules did not apply. “So our
ancestors had laid it down, giving scope, in their wisdom, to that
mystical element which, as it seems, can never quite be eradicated
from the affairs of men. " It is certain that like our own mind, and to
'
a far greater extent, the Indian mind craves for “an unexplored
inexplicable corner” in a polity. And if there is something which
awakens a feeling of the bonds which unite mankind in the thought
of the connection between the Indian people and ourselves, it is
certain that without a symbol of unity which will appeal to both alike,
that feeling would rapidly dwindle. The crown worn by Queen
Victoria and her successors has been far more than a mere symbol of
unity. It has been a strong power 4 and a reconciler in India.
1 Cf. Hansard, 1882, CCLXXIII, 255-307,
2 Idem, 1914, LX, 347.
3 Idem, LXVI, 956.
• Cf. Maconochie, Life of an Indian Civil Servant, p. 125; Lawrence, The India We Served,
239-41.
CHI VI
## p. 226 (#262) ############################################
CHAPTER XII
THE INDIAN GOVERNMENTS
THE CENTRAL AND THE PROVINCIAL GOVERNMENTS
IN INDIA, 1858-1918
The chief of the government in India, the man on the spot there,
HE
was first styled “viceroy and governor-general” in the famous pro-
clamation of 1858. The title of viceroy was not conferred on the
governor-general by any parliamentary statute although it is used in
the warrants of precedence and in the statutes of the knightly orders.
Where the governor-general is regarded as the representative of the
sovereign he is spoken of as viceroy; where he is referred to as the
statutory head of the Government of India he retains his original
title. 1
The superintendence, direction and control of the civil and military
administration were still vested in the governor-general in council,
who was now required by the Government of India Act of 1858
(21 & 22 Vic. c. 108) to pay due attention to such orders as he might
receive from the secretary of state. One of the most arduous tasks
before Lord Canning and his council was the preparation of pro-
posals for reshaping the central government and the governments of
Madras and Bombay. New machinery for legislation had also to be
considered.
THE NEW EXECUTIVE COUNCILS
The changes to be made in the executive councils, and more par-
ticularly in his own council, had for some time engaged Canning's
anxious thought. He corresponded first with Stanley and then with
Wood on the subject, and, although the letters exchanged were
private and confidential, their drift can be clearly gathered from
minutes preserved in the India Office and from Canning's corre-
spondence with Lord Granville. He was evidently dissatisfied with
the Bengal civil servants who had been his original councillors; and
it was only when James Wilson arrived from home as financial mem-
ber, and Bartle Frere joined the council from Bombay, that his ideas
gradually changed. He was still more dissatisfied with the system of
collective business which he found in operation. The council was
working as a board and deciding all questions by a majority vote, the
governor-general possessing an overruling power in matters of grave
importance. Canning wrote to Stanley that, as he was personally
1 Curzon, British Government in India, 11, 49; Strachey, India, p. 50.
? Fitzmaurice, Life of Granville, vol. 1, chaps. vii, xiv.
## p. 227 (#263) ############################################
PROPOSED ABOLITION OF COUNCILS
227
a
responsible for everything, he would manage better if he were relieved
from the necessity of discussing questions with a council. Let the
government of India be vested solely in the viceroy and let him be
able to appoint secretaries to assist him. He would consult the secre-
tary of the department concerned as to particular business, and should
there be a conflict of opinions, he would admit other secretaries to the
discussion. To such an arrangement there were two objections—first
the impossibility of leaving a glorified secretary to carry on the
supreme government in Calcutta when the governor-general left the
Bengal Presidency, and second the difficulty of providing for the
conduct of relations with the legislative council and for the manage-
ment of that council. He made suggestions for overcoming these
obstacles.
Stanley was inclined to agree in principle and laid the matter before
a committee of his council, which, on 23 May, 1859, decided by a
considerable majority that the executive councils at Calcutta, Bombay
and Madras, should all be remodelled on this basis. The "officers of
the departmental secretariats” would be the responsible advisers or
councillors of the governor-general and of local governors. But
methods for carrying this idea into effect had still to be considered.
On 18 June, 1859, Stanley gave place to Wood, who appointed a fresh
committee to deal further with the matter. A majority of this com-
mittee held that the main principle had been accepted. The govern-
ment of India should be vested by law in the governor-general alone.
He should be assisted by as many secretaries as might be thought
necessary. The pay of each secretary would be 65,000 rupees per
Secretaries would be nominated by the governor-general, subject
to confirmation in office by the secretary of state. The governor-
general would be able to consult any or all of his secretaries as he
pleased, but would take decisions himself.
These resolutions, however, provoked strong memoranda from
H. T. Prinsep, the protagonist of the Orientalists in 1835, who was
now one of the dissentients. He pointed out that in fact Canning's
proposals went far towards “unmitigated bureaucratic despotism”,
and that “for the sake of independence” the advisers of the governor-
general or governor ought always to be selected by superior authority.
He urged other considerations. The confidențial reports of the two
committees were sent out to India and were strongly criticised there,
notably by Frere, who minuted on 29 December, 1860, that what the
governor-general had always wanted was not fewer and less re-
sponsible but more and more responsible advisers, always preserving
the power to act entirely on his own view without hindrance from
their dissent. There should be a proper division of labour, each coun-
cillor having his own department to which he could devote his con-
tinuous attention instead of all consulting or pretending to consult
annum.
15-2
## p. 228 (#264) ############################################
228
THE INDIAN GOVERNMENTS
a
on every matter, great or small, as used to be the theory and pretended
practice. Canning had already effected an improvement in pro-
cedure.
In a letter to Wood of 15 May, 1860, Frere had already urged that
the proposals of the two Council of India committees would, ifadopted,
both add to the governor-general's work and seriously diminish his
ability to do it. They would also tend to draw more power to England,
rendering it impossible for the governor-general to take any important
step without the approval of a majority of the council of the secretary
of state, a most undesirable dénouement as India was changing even
faster than England and the Indian experience of even ten years ago
was misleading. He did not speak of the experience of such statesmen
as Mountstuart Elphinstone, whose wisdom was never obsolete.
Frere showed his letters to Canning; and combined with actual
experience of intervention from the India Office his arguments went
far to change the viceroy's mind. 1 Canning had introduced the port-
folio system of doing business into his council. The ordinary work of
departments was now distributed among the members and only the
more important cases were referred to the governor-general or dealt
with collectively. Moreover the reform of the legislative council was
now bulking largely before his eyes. In a letter to Wood of 4 February,
1861, he abandoned the proposal that secretaries should take the
places of councillors. The main point would now be that each coun-
cillor should be identified with a department and should be able to
deal with something more than technicalities. Boxes would no longer
go round carrying papers which could be disposed of without circu-
lation. “We have”, he wrote, “reformed ourselves a good deal, but
I should like to see the new status of members recognised by Act of
Parliament. ” The dispatch was going by that mail. The proposals
were in “as quiet a form as possible”. The reform of the legislative
council was ‘now far more pressing than that of the Executive
Council”.
Wood had originally contemplated a bill for each of these reforms
but instead on 6 June, 1861, introduced one which dealt with both.
The Mutiny, he said, had aggravated the difficulties of administration.
In fact it would be folly to shut our eyes to the increasing difficulties
of our position in India, and for this reason we should put all our
institutions there on the soundest possible foundation. In the Lords
Earl De Grey and Ripon, under-secretary of state, explained that
the policy was “to limit the changes as much as possible and to make
those only which experience showed to be necessary”.
The Councils Act of 1861 (24 & 25 Vic. c. 74) established a governor-
general's executive council of five ordinary members. In 1853 the
1 See Canning to Frere, 24 October, 1860, Life of Frere, 1, 358.
Afterwards secretary of state for India, 1866; viceroy of India, 1880-4. Hansard,
9 July, 1861, p. 586.
## p. 229 (#265) ############################################
THE COUNCILS ACT OF 1861
229
legal member had been permitted to sit and vote at all council
meetings. He had become a fourth ordinary member. But the dis-
organisation of public finances caused by the Mutiny had led to the
appointment of a trained financier as fourth member. A jurist,
however, was also needed, as the law was in process of codification,
and even the Penal Code, which had originally been drafted by
Macaulay, was still incomplete, so a fifth member was added to the
council. Of the five members three must have served the crown or
the Company in India for not less than ten years. One of these was
a military member, always a distinguished soldier; the other two were
civil servants who up to the year 1859 had always been selected from
the Bengal Presidency. The fourth member was a financial expert,
who might or might not have served the crown or the Company
previously; and the fifth or legal member was a barrister of England
or Ireland, or a member of the Faculty of Advocates in Scotland of at
least five years' standing. The commander-in-chief might be, and in
practice always was, an extraordinary member who divided with the
military member the responsibility for the military administration of
the country. He was the executive head of the army and was charged
with its organisation and preparation for war as well as with questions
of promotion. His office was known as army headquarters and was
distinct from the military department of the government which,
presided over by the military member, concerned itself with the
control of supply and transport, with ordnance, remounts, clothing,
medical stores, military works and military finance, and above all
with the preparation of the military budget. Proposals for military
reform or expenditure went from army headquarters to the military
department of the Government of India where they were noted on,
and, if involving expenditure, further proceeded to the finance depart-
ment. Finally they reached the viceroy through the military member
of council. If the viceroy, the military member and the commander-
in-chief were in general agreement, the proposals were carried out.
But if there were disagreement a proposal was either referred back
for further consideration or was laid before the governor-general in
council, debated on, and accepted or rejected by a majority of votes.
Every ordinary member of ihe governor-general's council, assisted
by a secretary, under-secretaries and a sufficient office establishment,
presided over certain departments of the central government. The
governor-general himself held charge of the foreign department which
conducted the correspondence of India with neighbouring powers;
he kept the London cabinet informed on questions of Asiatic policy
connected with India, and supervised the affairs of the native states.
The British representatives at the courts of ruling princes were the
agents of the governor-general and not the representatives of the
Government of India.
The distribution of departments among ordinary members of
## p. 230 (#266) ############################################
230
THE INDIAN GOVERNMENTS
council was a matter of custom, not of law. The act of 1861 conferred
on the governor-general the power to make rules and orders for the
more convenient transaction of business in his council other than the
business at legislative meetings, and provided that every order made
and every act done in accordance with such rules and orders must be
treated as being the order or act of the governor-general in council. 1
Canning's reforms in the conduct of business were thus sanctioned by
statute and the portfolio system was firmly established. Councillors
were able to dispose of unimportant cases belonging to their depart-
ments in the name of the Government of India. Cases in which two
departments differed, or a member proposed to overrule a local
government, or important issues were involved, were laid before the
viceroy together with the views of the members in charge and of their
secretaries. Differences of opinion between a member and the viceroy
were referred to a full council, where decision was taken in accordance
with the views of the majority. If opinions were equally divided the
president had a casting vote. But if a measure were proposed which
seemed to the governor-general to affect essentially the safety, tran-
quillity or interests of "the British possessions in India”, he could
overrule the majority of his council. In such cases any two members
of the dissentient majority might require the t. ansmission to the
secretary of state of the decision taken together with their minutes of
dissent. This overruling power of the governor-general's, which came
down from the acts of 1786 and 1793, was reaffirmed and slightly
expanded by an act of 1870. But however widely the views of a
viceroy might originally differ from those of a majority of his coun-
cillors, there was almost invariably a compelling desire for compro-
mise. 2
If the governor-general in council declared it to be expedient that
he should visit any part of India unaccompanied by his council, he
could in council appoint a member to preside at meetings held in his
absence, with all the powers of the governor-general except those
relating to legislation. Should the governor-general be absent from
a council meeting through indisposition, the senior ordinary member
presided.
Thus the Government of India became a cabinet government pre-
sided over by a governor-general, business being carried on depart-
mentally and the governor-general taking a more active and particular
share in it than is taken by a prime minister in a Western country or
than had been taken by any of his predecessors. The system remained
unaltered during our period. But a sixth ordinary member was
provided, by act of parliament, in 1874, to preside over the depart-
1 [lbert, Digest, sec. 42 (2), p. 103.
: See, for instance, Wolf, Life of Lord Ripon, 11, 50. Lord Curzon wrongly adds the aban-
donment of Kandahar to the instances in which a viceroy overruled his council (op. cit.
II, 73).
3 Îlbert, Government of India, pp. 187-8, clauses 45-6.
## p. 231 (#267) ############################################
.
THE GOVERNOR-GENERAL IN COUNCIL
231
ment of public works. In 1904, on the recommendation of the
secretary of state, the power of appointing a member to this particular
department was converted into a general power, and the public works
member was replaced by a member for commerce and industry.
The next change in the personnel of the council came after warm
discussion and led to the resignation of Lord Curzon in 1905. The
commander-in-chief, Lord Kitchener, had advocated the abolition of
the military member and the replacement of the military department
of the Government of India by an army department presided over by
the commander-in-chief. This proposal was strongly resisted by the
viceroy and the ordinary members of his council on the ground that,
if adopted, it would concentrate military authority in the hands of
the commander-in-chief and would subvert the supremacy of the civil
power by depriving it of independent military advice. Lord Kitchener,
however, maintained his views, urging that proposals from the
commander-in-chief should not reach the Government of India
through any second military adviser, who must necessarily be his
junior in rank and his inferior in experience. Eventually Lord
Kitchener's contention was in substance accepted and was followed
by Lord Curzon's resignation. The commander-in-chief became the
viceroy's sole adviser on all military questions. For a short period
there was a military supply member of inferior status to the former
military member; but this arrangement, as Lord Morley said,
"proved good neither for administration nor economy”. It ceased
in 1909, and the vacancy at the council-board was filled in 1910 by
a newly appointed member in charge of education and sanitation.
For the closing years of our period and throughout the great war the
council consisted of
(a) the commander-in-chief (extraordinary),
(b) the home member,
(c) the financial member,
(d) the legal member,
(e) the commerce and industry member,
(s) the education member,
all holding office for five years.
In the year 1909, on the recommendation of the viceroy and the
secretary of state, a distinguished Hindu barrister, Mr (afterwards
Lord) Sinha, was appointed legal member by the crown. He was
succeeded by a Muhammadan barrister; and when the latter had
completed his term of office, a Hindu high court judge was appointed
education member of the central executive.
The viceroy and governor-general, although invested with para-
mount power in India, was the governor-general in council and,
unlike the secretary of state, possessed a very limited power of separate
action. Rarely, however, did viceroys wish to dispense with the
assistance of their colleagues. John Lawrence was much vexed by
## p. 232 (#268) ############################################
232
THE INDIAN GOVERNMENTS
opposition from certain councillors; but he came to the viceroyalty
a tired man,' had long been accustomed to govern alone in the
Panjab, and was worried by the atmosphere of rapid evolution and
frequent argument which he found in Calcutta. There is much truth
in a sentence of Frere's on 20 March, 1868:
no Governor-General since the time of Clive has had such power and opportunities;
but he fancies the want of progress is owing to some opposing power which only
exists in his own imagination.
Lord Minto complained on 3 July, 1910, that he had
constantly felt that he must depend upon himself alone with the exception of one
or two advisers he had managed to secure and that the councillors sent him by
Lord Morley were not only useless but mischievous.
But Minto evidently wrote under the influence of intense irritation
with a secretary of state who “arrogated to himself complete in-
dependence” in making appointments to the council and would give
little or no weight to the governor-general's objections. 3 As a general
rule, viceroys and their councillors were drawn together, not only by
identity of aim but by force of circumstances, by the logic of the
palpable facts which encompassed all alike. Unity was generally
achieved, for without it lay no salvation. Thus we see one of the
strongest of viceroys, Lord Northbrook, jealously upholding the
statutory rights of his council and refusing to be led into courses
which might infringe those rights. We find Lord Ripon, even when
fully conscious of serious differences which separated him from the
majority of his councillors, observing “There is a very strong desire
to support the Viceroy, of which I have much proof”. 5 We see Lord
Curzon emphasising the gain to a viceroy of acting with, and not
without, his council, and Lord Minto asserting, in opposition to
Lord Morley, the right of the Government of India, as a body, to be
consulted about the Anglo-Russian agreement. There were ex-
tremely few decisions for which the viceroy's council did not share
responsibility with their president. Notable exceptions were the
abolition of import duties on the coarser kinds of cotton cloths in
Lord Lytton's days and the levy of a countervailing excise duty on
Indian cotton goods in the time of Lord Elgin. In both instances the
viceroy's action was due to pressure from the London cabinet; and
on the second occasion his council protested so strongly against a
measure which they considered unjust to Indian interests that the
secretary of state, Sir Henry Fowler, considered it necessary to convey
a weighty warning.
1 Bosworth Smith, Life of Lord Lawrence, 11, 429-41, 589.
Life of Frere, 11, 40 (Frere to Florence Nightingale).
9 Buchan, Memoir of Lord Minto, p. 311.
4 See Mallet, Life of Lord Northbrook, p. 91.
6 Wolf, op. cit. II, 50.
6 Curzon, op. cit. II, 74, 112-19.
? Morley, Recollections, 11, 178-9.
## p. 233 (#269) ############################################
THE LEGISLATIVE COUNCILS
233
“A Government”, he wrote, “whether in Downing Street or Calcutta, must act
as a homogeneous body, not as representing certain political opinions, but as
representing an executive authority which cannot act, whether in administration
or legislation, efficiently unless they act unitedly. . . . The existing law subjects the
Government of India to the control of the Imperial Government, and the Secretary
of State, who exercises that control, is responsible to Parliament. He cannot hold
office if the House of Commons disapproves of his official conduct. India is by the Act of
Parliament governed by and in the name of the Queen, and she governs by the
advice of a responsible minister. . . . So long as any matter of administration or
policy is undecided, every member of the Government of India is at liberty to
express an opinion; but when once a certain line of policy has been adopted under
the direction of the Cabinet, it becomes the clear duty of every member of the
Government of India to consider not what that policy ought to be, but how effect
may best be given to the policy that has been decided on; and if any member of
that Government is unable to do this, there is only one alternative open to him. . . .
The Cabinet have decided that the English precedent applies, and therefore that
the members of the (Viceroy's) Executive Council must, just as members of the
Cabinet do here, vote together (at legislative meetings) in support of Government
measures. If they are unable to do this, then the English precedent applies and the
objecting Member resigns before he either abstains from voting or votes against
the measure. ”1
These instructions were followed by the governor-general's coun-
cillors; but time brings its revenges, and in 1916 the reversal of the
policy imposed on the Government of India in 1894 was initiated by
that government and assented to by the secretary of state.
THE New LEGISLATIVE COUNCILS
No government can govern effectively unless it can legislate. The
subject of machinery for legislation was anxiously considered in
Calcutta and in London. In 1853 Wood, as president of the Board of
Control, had proposed and carried through parliament a measure
designed to provide that the governor-generals council, enlarged for
legislative purposes, should be simply a body which would assist the
supreme government in making laws. 2 Put Dalhousie started this
body off with 136 standing orders and a Hansard of its own. Its
debates were public. Of its additional members one was the Chief
Justice of Bengal, another was one of the judges of the Supreme
Court. The remaining additional members were officials from distant
provinces who were not indisposed to import fresh ideas into the close
atmosphere of Calcutta. 3 Somewhat to the consternation of Wood
the council soon showed signs of considering itself “the nucleus of a
constitutional parliament”. * Dalhousie, one of the most arbitrary of
governors-general, had viewed the prospect with no qualms. 5 But,
as time went on, his successor found the debates sometimes embar-
rassing. He thought it “to be regretted that the Council was on its
1 Mrs R. Hamilton, Life of Lord Wolverhampton, pp. 315-17:
: Wood to Dalhousie, 23 December, 1854 (Lee-Warner, Life of Dalhousie, n1, 237).
3 See Life of Frere, p. 309.
See speech by Lord Ripon, under-secretary of state, Lords' Debates, 9 July, 1861.
See Lee-Warner, op. cit. 11, 234-5.
## p. 234 (#270) ############################################
234
THE INDIAN GOVERNMENTS
first creation invested with forms and modes of procedure so closely
resembling Parliament". 1 Frere, who had to pilot government bills
through the council, agreed and considered that the judges did the
mischief. In writing to the secretary of state he illustrated this view
and found his correspondent entirely sympathetic. The existing
council must go. But what was to take its place? Even as late as
18 February, 1861, Wood was uncertain. No one in 1853, he wrote,
had dreamt of “a debating body with open doors and even quasi-
independence". Lord Dalhousie began wrongly and everything had
gone in the direction of fostering the notion of the council's being “an
independent legislative body”. It was all wrong and very unfortunate
because there was always a sympathy in England for independent
deliberation. Representative bodies, in any real sense, were impossible
in India, and he did not think that “any external element would
really do good”. It might satisfy the English at Calcutta to have an
English merchant or planter in the council, but he was not sure that
it would improve the legislation; and Indians could not be put in who
were “in any sense the exponents of active opinion, or who could take
any part in the deliberations”.
Frere, on 10 April, 1861, drew a vivid picture of racial tension
which had followed on the Mutiny and of European non-official
impatience of official legislation, urging strongly that it was impossible
to recede' and that, in view of the course of events since 1853, Dalhousie
was in the main right. Had he not taken the line which he took,
things would have been worse than they were. The proper course
now was to assist the viceroy with a sort of senate able to advise him
in framing laws which could be of general application to all parts of
India and in confirming or annulling laws shaped by the provincial
legislatures which had been abolished in 1833 but must now be
restored. Whether “any external (legislative) element” on the
governor-general's council would really do any good or not was no
longer a debatable question. Such an external element was essential.
“The days”, he wrote, "are gone when you could govern India without much
caring what the Europeans and Europeanised community say or think of your
measures, and unless you have some barometer and safety-valve in the shape of
a deliberative Council, I believe you will always be liable to very unlooked for and
dangerous explosions. '
He also urged that the new legislative bodies would make fatal
mistakes unless they were assisted by Indian members. 4
Canning agreed with Frere, and Wood largely accepted these views,
but in a pessimistic mood. Writing to Frere on 17 August, 1861, he
ended thus:
1 The governor-general to the secretary of state, 9 December, 1859.
2 Frere to Wood, 21 April, 1861 (Life of Frere, 1, 331. See also pp. 327 and 356).
* Correspondence, Life of Frere, I, 336.
• Idem, pp. 336-41.
## p. 235 (#271) ############################################
THE LEGISLATIVE COUNCILS
235
The future government of India is a problem of the most serious import, utterly
unexampled in history, and one of which it seems to me very difficult to foresec the
progress.
In addressing the House of Commons on 6 June, 1861," he had pointed
out the impossibility of reverting to a system by which the executive
government alone legislated for India. Nor could the English in India
have a representative body to frame the laws by which they should
be governed. It was equally impossible to assemble in India in one
place persons who would be real representatives of the various classes
of the Indian populations. The residents of the towns no more
represented the general Indian population than a highly educated
native of London represented a highland chieftain or a feudal baron
of six centuries ago. The legislative arrangements which he proposed
were based on Canning's recommendations. They became law and
were these.
For purposes of legislation the council of the governor-general was
reinforced by additional members, not less than six or more than
twelve, nominated by the governor-general and holding office for two
years. Of these additional members not less than one-half were non-
official (in no government service). Should the council meet for
legislative purposes within a lieutenant-governor's province, the
lieutenant-governor became an additional member. The functions of
the council when meeting for legislative purposes were strictly limited
to the consideration and enactment of laws. It could transact no
other business. It could entertain no motion except one for leave to
introduce a bill or having reference to a bill actually introduced.
Measures relating to the public revenue or public debt, religion,
military or naval matters, or foreign relations could be introduced
only with the sanction of the governo:-general. His assent was re-
quired to every act passed by the council; and any such act might be
disallowed by the sovereign, acting through the secretary of state.
While the legislative power of the governor-general in council was
wide, it should not affect certain parliamentary enactments, or the
general authority of parliament, or any part of the unwritten laws or
constitution of the United Kingdom whereon the allegiance of the
subject or the sovereignty of the crown might depend. In order to
remove all doubts respecting the validity of rules or regulations
sanctioned by executive orders of the governor-general in council
for the more lately annexed or non-regulation provinces, a clause was
introduced declaring that no such rules or regulations should be
deemed invalid by reason of not having been made in conformity with
the provisions of the charter renewal acts.
Mr A. H. (afterwards Sir Henry) Layard proposed in the House
of Commons to insert an injunction directing that a certain number
of the additional members of the council, when sitting as a legislative
1 Hansard, CLXIII, 638-9.
## p. 236 (#272) ############################################
236
THE INDIAN GOVERNMENTS
body, should be natives of India. 1 But the secretary of state con-
sidered it undesirable to make statutory distinction in this connection
between different classes of Her Majesty's subjects. Some of the
additional members appointed would certainly be natives of India.
The act conferred on the governor-general one power of a novel
character. He was enabled to frame and issue on emergency, without
his council, ordinances which would not remain in force for more than
six months. Such a power had been urgently required on certain
occasions in 1857–8. Long afterwards ordinances were resorted to in
the first month of the great war, when the legislative council was
not sitting and immediate action was required in certain directions.
The power of issuing ordinances was vested in the governor-general
alone in order that the responsibility might be solely his. But the
reasons for such exceptional procedure should always be recorded and
should be submitted to Her Majesty's Governınent together with the
ordinance itself. 3
The power of legislation which had been taken from the governors
in council of Madras and Bombay by the Charter Act of 1833 was
restored in 1861. For legislative purposes these councils also were
expanded by additional members. No line of demarcation was drawn
between subjects reserved for the central and those allotted to the
local legislatures; but while local legislation in certain cases could not
be undertaken without sanction from the governor-general, all acts of
local legislatures required his subsequent assent as well as that of the
local governor and were subject to disallowance by the crown. The
governor-general was directed to establish a legislative council in
Bengal and empowered to set up similar councils in the North-
Western Provinces and the Panjab when the time was ripe. Councils
were established in Bengal in 1862, in the North-Western Provinces
in 1886, and in the Panjab and Burma in 1898.
The legislative councils established by the act of 1861 were com-
mittees by means of which the executive government obtained advice
and help in legislation. While the government enacted the laws
through its council, the public had a right to make itself heard, and
the executive was able to defend its legislation. When the laws were
once made they were binding on the government as well as on the
public. They had been made in a manner which ensured publicity
and discussion and could only be changed by the deliberate and
public process by which they had been made. The councils could only
deliberate on the legislation immediately at issue. They could not call
for information on other subjects or impugn acts of the administra-
tion. 4
In the year 1870 there was a discussion 5 between Lord Mayo's
1 Hansard, CLXIII, 1016, 18 June, 1861.
2 Idem, p. 1027.
3 Ilbert, Digest, pp. 215-16, 566, para. 26, Wood's dispatch of 9 August, 1861.
4 See Report on Constitutional Reforms, 1918, p. 54.
5 See Accounts and Papers, 15, East India, 1876, LVI, 6-10.
5
## p. 237 (#273) ############################################
LEGISLATIVE CONTROL FROM LONDON
237
government and the Duke of Argyll, then secretary of state, the former
claiming that they had been endowed by section 22 of the 1861
Councils Act with legislative discretion which they should exercise to
the best of their judgment. The secretary of state could, of course,
disallow any law which they passed. They could not, however, be expected
to introduce any measure of which they disapproved.
Any other view would invest the Secretary of State with the character of the
legislator for British India and would convert the Legislative Council into a mere
instrument to be used by him for that purpose.
On 24 November, 1870, the duke replied that theoretical incon-
veniences were inseparably connected with the working of such a
machinery of government as t'iat through which the empire of India
was ruled from England, but these could in practice be reduced to
a minimum by mutual respect on the part of those concerned. One
great principle underlay the whole system. The final control and direction of
affairs in India rested with the Home Government. It made no real difference
if its directions related to legislative affairs. If the crown's interposition
were limited to a veto on acts passed in India, the queen's government
would be helpless to secure legislative sanction for any measures
however essential it might deem them to be, for the welfare or safety
of the Indian Empire. It followed, then, that this government must
hold in its hands the ultimate power of requiring the governor-
general to introduce a measure and requiring the members of the
Indian government to vote for it. This was the practice in all parts
of the queen's dominions where the authority of the legislative body
was not derived from the principle of popular representation. It
was a question of abstract right, not of ordinary procedure. It was
only necessary to bear in mind where the seat of ultimate authority
was placed in order to secure on both sides that fairness and modera-
tion without which no political constituțion could work with smooth-
ness and success. Lord Mayo's government on 1 February, 1871,
accepted this doctrine, as it defined a principle which they had never
intended to question; they were glad, however, to hear that the
ruling would not be applied to ordinary procedure but only “with
great deliberation and on the rarest occasions”.
The enlargements of the legislative councils in 1892, 1909 and 1919
are described in later chapters.
