But before Heytesbury had sailed
for India, Melbourne came back into office and resolved that a
ministerial supporter should be rewarded with the governor-general-
-
ship of India.
for India, Melbourne came back into office and resolved that a
ministerial supporter should be rewarded with the governor-general-
-
ship of India.
Cambridge History of India - v4 - Indian Empire
IV, c.
85, ss.
59, 65.
? Idem, ss. 43, 45.
3 Idem, s. 46.
1
4
## p. 7 (#37) ###############################################
THE LAW MEMBER
7
became universally valid. Experience had indeed shown that the
presidency governments needed more expert advice on legislative
drafts than could be provided by law officers chosen from the local
bar. The new act for the first time made provision for this. An
additional member of council was to be appointed by the Company
with the approval of the crown. The definition of his qualifications
was purely negative. He was not to be a member of the Company's
civil or military service. The only formal indication of the part he
was to play consisted in the declaration that he was to have rights
of speech and vote only at meetings of the council for the consideration
of legislative business. The office thus obscurely defined was that of
law member. The appointment was important in two ways. It con-
stituted the first step taken in India towards the establishment of a
legislature separate from the executive; and it provided the council
with a legal expert to criticise, amend or draft legislative proposals.
“The concurrence of the fourth member of council may be wanting to a law”, wrote
the directors, "and the law may be good still; even his absence at the time of
enactment will not vitiate the law; but parliament manifestly intended that the
whole of his time and attention, and all the resources of knowledge or ability
which he may possess, should be employed in promoting the due discharge of the
legislative functions of the council. "He has indeed no pre-eminent control over
the duties of this department, but he is peculiarly charged with them in all their
ramifications. "
And although he was entitled to sit and vote only when laws were
under consideration, the Company advised that he should be per-
mitted to sit at the executive meetings of the council.
"An intimate knowledge”, it wrote, "of what passes in council will be of essential
service to him in the discharge of his legislative functions. Unless he is in the habit
of constant communication and entire confidence with his colleagues; unless he is
familiar with the details of internal administration, with the grounds on which the
government acts and with the information by which it is guided, he cannot
possibly sustain his part in the legislative conferences or measures, with the know-
ledge, readiness and independence essential to a due performance of his duty. "
The advice was followed. Macaulay (the first law member) and his
successors were summoned to the ordinary as well as to the legislative
meetings.
The third measure taken in this connection was the creation of an
entirely new body. The governor-general in council was directed
to appoint “Indian law commissioners”, who were to enquire into
the jurisdiction, powers and rules of all courts and police-establish-
ments, all forms of judicial procedure, and the nature and operation
of all laws, civil and criminal, written or customary, and to propose
any necessary alterations, due regard being had to the rules of caste,
and the religions and manners of the people. They were to follow
such instructions as they should receive from the governor-general
in council, and to draw the pay that the latter should appoint in the
13 & 4 Will. IV, c. 85, S. 40. · Dispatch, 10 December, 1834, ut supra.
• Idem.
## p. 8 (#38) ###############################################
8
LEGISLATION AND SUPERIOR GOVERNMENTS
scale next below that enjoyed by members of council. 1 Thus came
into existence the first Indian Law Commission. It was designed to
fulfil a double object-to unravel the tangle of existing laws and to
advise on new projects of legislation. In both points the new body
(over which Macaulay and his successors presided without additional
pay) achieved much. It was employed by the new legislature to
consider and report on projected laws submitted by the subordinate
governments, and its reports form an interesting and very valuable
part of the legislative proceedings of the period. But its other and
indeed its principal object proved more difficult than had been
expected. Macaulay in 1833, with his usual lucid and specious gift
of statement, persuaded himself and the House of Commons that the
ideal moment had come in which to codify the Indian laws, and that
codification would be a relatively easy, rapid process, which should
be undertaken without delay. When he became law member, and
presided over the commission, he laboured hard to fulfil his promises.
He produced the first draft of the Penal Code. But that remained
a project until, having been reconsidered, amended, and much
improved, it was at last enacted in 1861. The first Indian Law Com-
mission thus only laid foundations on which other legislators were to
build.
The act of 1833 dealt with two other matters of great importance
-the mode of administering the presidency of Fort William and the
position and recruitment of the Company's civil service. Reform of the
government of Bengal was long overdue. The conquests and policy
of Wellesley had greatly expanded the territories of a province already
over-large. The Agra districts not only lay at a great distance from
the centre of government but also included the imperial city of
Delhi adjacent to the powerful state of Ranjit Singh in the Panjab.
Need therefore existed of a strong and vigilant local authority. Nor
was this all. The governor-general in council was responsible for
the general administration and policy of all British India as well as
for the particular administration of Bengal. This burden was in fact
more than he could bear. The detail of Bengal administration tended
therefore to be relegated to subordinate authorities. The Bengal
Board of Revenue acted largely as the government of the province.
A great part of the administration was thus entrusted to revenue
servants bred up in a revenue system which more than any other
discouraged familiarity with the customs and life of the people
To this unfortunate system, the evils of which were at the time but
partially recognised, the act applied two palliatives. It declared that
the territories under the presidency of Fort William were to be divided
int) two governments. 2 This involved the appointment of a separate
governor, but did not necessitate the appointment of a council. 3
& 4 Will. IV, c. 85, s. 53-5.
2 Idem, s. 38.
3 Idem, ss. 56, 57.
1
3
2
## p. 9 (#39) ###############################################
BENGAL
9
>
In regard to the dual position of the governor-general in council,
though Charles Grant had half-admitted the evils of the existing
system, ' nothing useful was done. The governor-general was declared
1
the governor of the Bengal Presidency. This involved a ridiculous
complication of functions. Till the passing of the act of 1833 the
governor-general of Bengal in council had also been the superin-
tending government of all British India. But now, in order to mark
the new powers and status of the superintending government, it
received a new designation—the governor-general of India in
council2so that while the governor-general and council had
become the central government, the governor-general alone con-
stituted the government of Bengal. The governor-general in council
thus had powers of superintendence, direction and control over the
governor-general, while the governor of Bengal could overrule the
council of India. “A state of things may perhaps occur”, the Com-
pany observed, “which may in some cases occasion embarrassment. ”3
However, another section of the act permitted the governor-general
in council to appoint an ordinary member of council deputy-governor
of Bengal; and in actual practice the senior ordinary member was
generally so appointed. This avoided the absurdity of the legal posi-
tion; but did nothing to improve the administration of the province,
which remained under a minimum of supervision for another twenty
years. In these matters the provisions of the act were far from ade-
quate to the needs of the country.
In regard to the recruitment of the Company's civil service the act
contained provisions of far-reaching but not immediate importance.
As has already been noted, Lord Grenville twenty years earlier had
suggested competition as providing the best means of recruitment.
This project was now introduced in a carefully limited form. The act
directed that estimates of probable vacancies in the civil service should
be sent to England annually; the estimates were to be considered by
the board, which was to certify to the court of directors what number
of nominations—not less than four times the number of expected
vacancies—might be made. The nominees were then to be examined
under rules to be made by the board and a quarter selected for
admission to the Company's college at Haileybury. After three years'
studies there, they were to be re-examined and the appointments
made accordinglyThis system, had it been carried into operation,
would have preserved the advantages of nomination while it intro-
duced those of competition. It would have excluded the bad bargains
who have always been the misfortune of every system of patronage;
it would also have excluded the very clever men, with no interest in
India but as a field for their talents, who have been the bane of the
system open competition. Unfortunately the directors of the day
· Hansard, 3rd Ser. XVIII, 727.
4 Will. IV, c. 85, s. 39.
• Dispatch, ic. December, 1834, ut supra. 3 & 4 Will. IV, c. 85, ss. 103-8.
of
3
&
1
## p. 10 (#40) ##############################################
10
LEGISLATION AND SUPERIOR GOVERNMENTS
felt more acutely the diminution in the value of their patronage than
the advantage of being obliged to exercise their patronage wisely.
They hated this infringement of their former privilege. They were
quite incapable of rebutting the eloquent arguments with which in
the House of Commons Macaulay developed, amplified and defended
the plan which he had borrowed and adapted from Grenville's original
proposal. But though they might be reduced to silence, their hearts
were obstinately unconvinced. In the following year they succeeded
in persuading the casy-going president of the board to move an
amending bill permitting them to defer the execution of these
directions. Macaulay, the one convinced and influential advocate of
the competitive principle, had then left England to take up his new
office of law member. The proposal was thus smuggled through with
little consideration, and the first serious attempt to trench upon the
directors' privilege ended ignominiously and without trial. This was
a great misfortune. Unrestricted competition, as afterwards adopted,
has not lacked its disadvantages. But the plan of 1833 might have
worked greatly to the welfare of India.
Beside this fruitless provision should be set another, equally bene-
volent and even less operative. No Indian subject of the crown
“by reason only of his religion, place of birth, descent, colour, or any
of them”, should "be disabled from holding any place, office, or
employment under the said Company”. 1 Clearly this did not mean
and was not designed to mean, that all offices were in future to be
thrown open indiscriminately to Indians. The clause of the act of
1793 declaring that none but covenanted servants of the Company
could hold any civil office carrying over £800 a year salary still
remained law;so that except for the new councillorship, which was
evidently intended to effect a very different object,none of the
higher civil offices were in law open to Indians until Indians were
included in the covenanted civil service. The object of the section, as
the directors rightly observed, was
not to ascertain qualification, but to remove disqualification. It does not break
down or derange the scheme of our government as conducted principally through
the instrumentality of our regular servants. . . . But the meaning of the enactment
we take to be that there shall be no governing caste in British India; that whatever
other tests of qualification may be adopted, distinctions of race or religion shall
not be of the number. . . . You well know, and indeed have in some important
respects carried into effect, our desire that natives should be admitted to places of
trust as freely and extensively as a regard for the due discharge of the functions
attached to such places will permit. . . Fitness is henceforth to be the criterion of
eligibility. . . . There is one practical lesson which. . . the present subject suggests to
us once more to enforce. While on the one hand it may be anticipated that the
range of public situations accessible to the natives and mixed races will gradually
be enlarged, it is, on the other hand, to be recollected that, as settlers from Europe
find their way into the country, this class of persons will probably furnish candidates
for those very situations to which the natives and mixed races will have admittance.
3 & 4 Will. IV, c. 85, s. 87. 2 33 Geo. III, c. 52, s. 57.
3 Cf. Hansard, 3rd Ser. xix, 664.
!
1
1
1
## p. 11 (#41) ##############################################
SLAVERY
II
Men of European enterprise and education will appear in the field; and it is hy
the prospect of this event that we are led particularly to impress the lesson already
alluded to on your attention. In every view it is important that the indigenous
people of India, or those among them who by their habits, character or position
may be induced to aspire to office, should as far as possible be qualified to mcet
thcir European competitors. 1
The clause therefore became the basis of that educational policy
which took shape, in the years immediately following, under the
influence of Macaulay more than any other individual.
At a time when the slave question was so prominently in the minds
of all men, it was inevitable that the act should attempt to deal with
slavery in India. The act as originally introduced directed that
slavery in the Company's territories should be brought to an end by
12 April, 1837, or earlier if possible. A little consideration, however,
soon made it evident that the question of slavery in India was a
different matter from slavery in the West Indies. In India it was
complicated by caste, by Hindu custom, by Muslim law. A greater
latitude of action was therefore accorded to the government of India.
Instead of requiring abolition by a fixed date, the act only directed
the governor-general in council to take the matter into considera-
tion, to mitigate the position of slaves in India as soon as possible,
and to abolish slave status at the earliest practicable moment. 3 The
Company's instructions under this head were shrewd and cautious.
It pointed out that remedial measures should be so framed as to leave
untouched the authority recognised by both Hindu and Muslim law
in the heads of families. Of real slavery in India, predial slavery
occurred only in certain limited areas, while domestic slavery was
mild. The first reform which it recommended was to make the
punishment of injuries inflicted on slaves as heavy as if they had been
inflicted on free persons; while it was suggested that emancipation
should only be effected where it was desired by the slave, and should
always be “a judicial proceeding, investigated and decided by the
judge”. 4 In social as in political affairs, India was not to be made the
subject of wholesale experiments.
As a whole the act, while very imperfect, was permeated by the
liberal ideas of the age, and some contemporary comment fell far
short of justice. Shore, for example, who should have known better,
observed, “Provided each party could gain its own selfish and short-
sighted objects, the government of India was thrown into the bargain
with as much indifference as if the people in question had been a herd
of cattle”. 5 The act which approached the slavery question with wise
caution, which sought to introduce competition into the recruitment
of the civil service, which abolished the Company's trading rights, and
envisaged though in an over-sanguine spirit the increased employ-
1 Dispatch, 10 December, 1834, ul supra. 2 Bill, s. 88.
* 3 & 4 Will. IV, c. 85, s. 88.
• Dispatch, 4 December, 1834, ul supra.
• Notes an Indian Affairs, 1, 390.
3
## p. 12 (#42) ##############################################
12
LEGISLATION AND SUPERIOR GOVERNMENTS
ment of Indians and the reform of the Indian law, was a good deal
more than a corrupt bargain between two parties in the British
parliament. Its defects were of a very different nature. It did not
sufficiently reorganise the Indian government. The governor-general
should, as had been at first proposed, have been given the assistance
of a councillor from each presidency, and should have been wholly
freed from the duties of local administration in Bengal. Legislation
and administration were both over-centralised. In short the act
imposed on the government of India duties too extensive and detailed
to be carried out by a single group of men. It was probable, there-
fore, that the coming years would be marked by an excessive uni-
formity of policy and a decline in the efficient working of the adminis-
trative machine, due to the development of centralisation in advance
of communications.
The Home Government under the act remained almost as it had
been before, though it was in fact little understood. Indeed the
debates of 1853, when the constitution came up once more for recon-
sideration, revealed the most singular differences of opinion. Some
declared that India had been governed by the board, others that it
had been governed by the Company. In one way at all events the
provisions of the statutes had been considerably modified by usage.
The offices of governor-general, of governor, and of fourth member
of the governor-general's council, were to be filled by the Company's
appointment, subject to the approval of the crown. Further pro-
vision had been made in 1833 that vacant governorships or seats in
council must be filled by the Company within two months after the
receipt of the notification, otherwise its right of appointment would
pass to the crown, and persons so appointed would not be liable to
recall by the Company. It was therefore expected that normally
names would be proposed by the directors for the approval of the
minister, who would exercise a veto over their proposals. But the
time limit of two months, within which the directors had to propose
an acceptable name unless they were to forfeit that exercise of their
patronage, greatly though perhaps undesignedly increased the
minister's influence in this matter; with the result that in practice
names came to be proposed by the minister, and the Company's
power of appointment came to be in effect a right of veto. 2
This became evident almost as soon as the act came into force.
Bentinck announced his intention of coming home, and the directors
were eager to secure the succession as governor-general to their very
distinguished servant, Sir Charles Metcalfe. Charles Grant, still
president of the board, objected, and a long correspondence ensued,
in the course of which the limited two months almost passed away,
and finally the chairman of the court was reduced to writing to the
president of the board that he could not accede to any further delay
1 3 & 4 Will. IV, c. 85, s. 60. 2 Cf. Hansard, 3rd jer. cxxix, 48.
## p. 13 (#43) ##############################################
THE COMPANY AND THE BOARD
13
in proposing the name of a possible successor. " The power of nomina-
tion had already passed out of the Company's hands.
While this question was still at issue, a change of ministry took
place, Lord Heytesbury was proposed by the new president and
accepted by the court of directors.
But before Heytesbury had sailed
for India, Melbourne came back into office and resolved that a
ministerial supporter should be rewarded with the governor-general-
-
ship of India. This was described as a marked breach of precedents.
But while it was agreed that a governor-general exercising his office
in India should not be recalled by a mere change of ministry at home,
it was much less clear that a governor-general who had not yet sailed
from England should as a thing of course be permitted to take up his
office under a government other than that which had nominated him.
The earlier cases—Minto's and Bentinck's—did not illustrate this
position at all. The court of directors did their utmost to prevent
Melbourne from acting on his resolve. They declared their fear and
alarm at any measure which would render "the high and responsible
station of governor-general of India subscrvient to political purposes
in this country”. 2 But in such cases they were really helpless and
were obliged to acquiesce in a change. The discussions ended in the
selection of the unfortunate Auckland as the new governor-general.
The reader must not, however, hastily conclude that the Board
of Control could impose the man of its choice on the court of
directors. The latter possessed and retained down to the end of its
political existence the power of recalling any office-holder in India,
including all governors and the governor-general himself. Even the
most aggressive of presidents was therefore obliged to refrain from
proposing persons who would be really unwelcome to the court of
directors. On at least two occasions within the period covered by the
present chapter was the recall of the governor-general seriously con-
sidered, and on one of these it was actually effected. The first case was
that of Lord Amherst. In 1825, when the news of the Burma War
was followed by that of the Sepoy mutiny at Barrackpore, the directors
were so seriously disturbed at the course events were taking that they
debated the propriety of recalling the governor-general immediately.
The president of the board, Wynn, being unable to dissuade them
from this course, Canning was employed to take the matter up with
them, in Lord Liverpool's absence; and he succeeded in smoothing
matters over with a promise that the papers should be laid before the
Duke of Wellington for his opinion. The second case was that of
Lord Ellenborough in 1844. Despite his great talents Lord Ellen-
borough notably lacked the art of managing others. On arriving in
India he speedily quarrelled with the whole civil service, preferring
to employ soldiers wherever he had any choice, conducting his
i Kaye, Life of Tucker, p. 480.
Kaye, op. cit. p. 46o.
• Canning to Liverpool, 3 October, 1825. Brit. Mus. Add. MSS, 38193, f. 233.
3
## p. 14 (#44) ##############################################
14
LEGISLATION AND SUPERIOR GOVERNMENTS
political correspondence through his private, instead of through the
political, secretary, and quitting Calcutta in order that he might
avoid having to communicate his plans to the members of his council.
This not only increased the difficulties of his work in India, but also
indisposed the directors who resented the slight thus cast upon
their
relations and protégés. Incidentally the same cause inspired the
peculiar acrimony with which Kaye, usually a fair-minded man,
approached every aspect of Ellenborough's conduct. Then too, the
governor-general's impulsive character could not submit to be bound
even by the rules which he himself had laid down. When president
of the board in 1830 he had ordered that no public works costing
over 10,000 rupees should be undertaken without the previous
sanction of the East India Company; but now he established new
and expensive cantonments on his own authority. 1 His Sind policy
provoked strong criticism. Above all he regarded both the Board of
Control and the court of directors with a scorn far too great to be
concealed. 2 In 1843 his close friend, Wellington, had urged him
earnestly to display greater prudence. But this was in vain. Early
in the following year the directors resolved that he should be recalled.
Though there was much truth in the queen's view that this was unwise
and ungrateful, the governor-general's conduct had exhibited too
many irregularities for the ministry to be able to make any effective
defence. Peel therefore acquiesced in his recall, but at the same time
gave him a step in the peerage and the Grand Cross of the Bath. With
these solatia Ellenborough came home.
In its way this episode was as significant as Auckland's appointment
had been. If the latter showed that the ministry possessed the real
power of nomination, the former proved that the Company's veto
was no empty form, for no ministry would venture to insist on the
appointment of a governor-general or governor who might be recalled
before he had even landed in India.
In fact the Company retained and continued to exercise a con-
siderable share in the authority exercised by the Home Government.
It is true that matters of foreign policy, of war, peace, and alliances,
had slipped altogether from its control; and the only way in
which it could mark its disapproval was the extreme course of
recalling a peccant governor-general. As Wood observed in the
debates of 1853, the responsibility for Indian foreign policy lay
exclusively with the president of the board and through him with the
cabinet. 5 But in fact this was the branch of policy in which an
effective home control was least practicable. Macaulay's words-
"India is and must be governed in India. This is a fundamental law
which we did not make, which we cannot alter, and to which we
.
H
1
1
1
1 Cf. Colchester, Ellenborough's Indian Administration, p. 369.
• Law, India under Lord Ellenborough, pp. 104, 165. ; Colchester, ut supra.
• Queen Victoria's Letters, II, 9.
• Hansard, 3rd Ser. cxxix, 764.
1
## p. 15 (#45) ##############################################
THE COMPANY AND THE BOARD
15
should do our best to conform our legislation”—while generally true,
were peculiarly true of foreign affairs. The war in Sind, the war with
Sindhia, the war with Burma, the wars with the Sikhs, were begun,
conducted, and concluded on the responsibility of the governor-
general of the day. So that the province in which at London the
authority of the board was uncontested was also that in which its
authority could be least exercised.
In all other matters the policy of the court of directors had to be
taken into serious consideration. The actual relations between the
court and the board in this period cannot be determined with pre-
cision, for the original and vital conferences, in which their respective
views were stated and discussed between the president and the chairs,
have left no record other than an occasional private letter. Regular
documentary evidence in the “previous communications”) only
appears as a rule when the principal points of difference have been
cleared away. The best account (so far as the present writer is aware)
of these relations is contained in a letter of St George Tucker, who
had enjoyed prolonged experience in his repeated tenure of the chair-
manship of the Company.
“The Board”, he writes, “ have. . . a general and absolute restraining power; but
they cannot propel us forwards if we choose to resist. Our vis inertiae alone is sometimes
sufficient to arrest their proceedings. The present government have on more than
one occasion resorted to a high judicial tribunal for the purpose of coercing us by
a mandamus; but they signally failed. On a late occasion they ordered us to dismiss
all the judges of our court of Sudder Diwanny Adawlut (the head court of appeal
in Bengal)—we refused—they threatened to dismiss them by their own authority-
they were told that this could only be done by a mandate of recall under the sign
manual; but they were not prepared to undertake such a responsibility, and the
case was closed by a peevish censure.
“The court of directors still by law retain the initiative; and although by the
connivance of their organs this privilege may be rendered of no avail, it has hereto-
fore been asserted with very salutary effect. We are also at liberty to protest, and
to expose to public view instances of maladministration; so that, as long as the
court shall be filled by independent and honourable men, they may, not only by
their knowledge and experience, assist in giving a proper direction to the machine
а
of government, but they can also exert a wholesome influence in checking the
career of an unscrupulous government. ”1
Tucker's letter ends on a melancholy note. “I feel most painfully”,
he adds, "that we are gradually sinking. ” There was, no doubt,
a steady growth during the twenty years following 1833 of the idea
that direct crown government was the inevitable and desirable end.
In 1833 that idea had been cherished by extremists on the one side
like Ellenborough and on the other like J. S. Buckingham. In 1853
the idea was much more widely held. That fact of itself would no
doubt have tended to inake the president of the board more assertive
of his powers and more disposed to push them to their extreme length.
But the position of the Company seems to have remained strong
>
1 Kaye, op. cit. p. 483.
## p. 16 (#46) ##############################################
16 LEGISLATION AND SUPERIOR GOVERNMENTS
a
enough to permit an obstinate resistance. At all events the legislators
of 1853 clearly felt that the Company would not decline into a mere
consultative council without a material change in the existing law.
The new act provided for the reduction of the directors from twenty-
four to eighteen, and for the immediate appointment of three (rising
gradually to six) by the crown. Since at the same time the quorum
of directors was lowered from thirteen to ten, it would be possible for
the crown nominees to constitute the majority in a thinly attended
court. 1 The intention evidently was to prepare for the time when the
Company should lapse and its functions be entrusted to a consultative
council. This was frankly recognised in debate. Sir James Graham,
for example, “believed that the introduction into the direction of a
small proportion of directors nominated by the crown would form the
nucleus of a consultative body hereafter which should be the council
of the sole minister of India named by the crown” 2 It is clear
therefore that the plan which was adopted in 1858 was no newly
found expedient, but rather a solution towards which men had been
consciously working.
Affairs in another direction also had moved so far as to abrogate
the chief reason which had demanded the maintenance of the
Company. Ever since 1781 the main obstacle to the Company's
abolition had been the exercise of the Indian patronage, which no
one save Fox had dared seek to appropriate. Grenville in 1813 had
indicated an avenue of escape from the dilemma. Macaulay in 1833
had attempted to open up the avenue. Now in 1853 it was decreed
that the directors' patronage should cease, that the Board of Control
should prepare rules for the examination of candidates for the civil
service, that all natural-born subjects of Her Majesty should be
eligible to compete, subject to the rules that the board should prepare,
and that all appointments should be made on the results of the
examination. 3 Given the success of this experiment, men naturally
began to look for the disappearance of the Company according to
plan in 1873. The Mutiny merely accelerated the foregone and care-
fully anticipated course of events.
Two other small points show how definitely opinion had developed.
When the presidency of the Board of Control had been first instituted,
it had been held in conjunction with other important offices, and
carried a salary of £2000 a year. When in 1810 it had come to be held
alone, the pay had been raised to £5000, but in 1831 “in a hot fit of
economy”4 had been reduced to £3500. It was pointed out that the
post had become either a mere stepping-stone to something better or
a refuge for the politically needy, that the president “did not fill that
office in the cabinet which he ought to do”, that there would be
constitutional objections to making him a secretary of state, but that
1 16 & 17 Vic. c. 95, ss. 2-6. 2 Hansard, 3rd Ser. cxxix, 70.
3 16 & 17 Vic. c. 95, ss. 36-42. • Hansard, 3rd Ser. cxxix, 38,
## p. 17 (#47) ##############################################
LEGISLATION
17
at all events his salary should be raised to the same level. 1 It was
therefore resolved that his salary should not be less than that of a
secretary of state-another preparatory step for the change of 1858.
At the same time the approval of the crown became in future necessary
for all appointments of councillors, whether to the governor-general's
council or to those of the subordinate governments.
The act of 1853 thus strengthened the position of the crown half of
the Home Government and reflected the growing anticipation of the
time when it would be the sole organ of government. Other pro-
visions dealt with the government in India. Some of the most
important modified the governor-general's council. The law member
became an ordinary member, entitled to speak and vote at all meetings,
legislative or executive, of the council,3 thus removing a disability
against which Macaulay had strongly protested. The legislative
authority of the governor-general was materially enlarged. Under
the act of 1833, while the governor-general at executive meetings
could act with one member only and could overrule the decisions
taken by a majority, at legislative mectings his presence was not
necessary, these three ordinary members could act without him, and
he had merely a casting vote. Under the new act no law was to have
force until it had received his assent, so that he was given a power
of
veto which till then had been lodged only in the home authorities.
A long step was also made towards further differentiating the legis-
lature from the executive. Under the act of 1833 the distinction
between the two had consisted only in the right of the law member
to speak and vote. Now a large relative increase in the council was
made for legislative purposes. Certain additional persons were to be
added under the statutory title of “legislative councillors”. These
were to consist of a member nominated by each governor or lieutenant-
governor, from among the civil servants of at least ten years' standing,
the chief justice of the Supreme Court of Calcutta, one of the puisne
judges of the court, and, if the Company authorised the step, two
more civil servants of at least ten years' standing nominated by the
governor-general. Thus the legal element was greatly strengthened,
and new provincial elements appeared. An attempt was made in
committee in the House of Commons to amend the section so as to
introduce on to the council European and Indian non-officials. But
this proposal was defeated by the opposition of the president of the
board, Sir Charles Wood, who, while favouring the extension of the
administrative employment of Indians, declared truly enough that
no two Indians could be found to represent adequately the diversity
of Hindu and Muslim society. 5 It was afterwards averred that the
absence of Indians on the legislative council had facilitated legislation,
3 16 & 17 Vic. c. 95, s. 33.
4 Idem, s. 22.
Hansard, 3rd Ser. cxxix, 822, 854.
* Idem, s. 21.
• Hansard, 3rd Ser. CXXIX, 418 599.
CHIVI
2
## p. 18 (#48) ##############################################
18
LEGISLATION AND SUPERIOR GOVERNMENTS
which by alarming Hindu sentiment had assisted to provoke the
Mutiny. But that criticism, while just in itself, probably misses the
principal defect of the new arrangement. The natural English desire
to create an Indian legislature visibly separate from the executive led
inevitably to the formation of a body free in theory but shackled in
practice. There was in fact no immediate need to separate executive
and legislature. A method, preferable because more elastic and more
easily capable of development, would have been to leave the actual
legislative organ untouched, but to have attached to it a consultative
committee, on which many classes and interests could have been
represented and on which there would have been no need of that
irritating official bloc, the sole purpose of which was to preserve the
executive control over legislation in bodies which had been tech-
nically invested with legislative power.
Another change of some interest in the legislative sphere was also
made. The former act had authorised the establishment of law com-
missioners in India mainly in order to accomplish the codification of
Indian law. This body, though far from inactive, had achieved little
beyond drafts that still awaited final revision. Owing to complaints
from the government of India that it cost far more than it was worth,
it had not been maintained at its full strength, and had been reduced
to one member and a secretary in addition to the law member of
council who acted as its president. 1 The new act therefore recited the
fact that, although numerous reports had been sent to England, no
final decision on them had been taken, and authorised the crown to
appoint persons in England to examine these recommendations and
such other matters as might be referred to them with the approval of
the board, and to report what legislation might be expedient. 2
The Law Commission was thus reconstituted and transferred from
Calcutta to London. This change led to mixed good and evil. As will
be seen from a later chapter,3 it at last led to the enactment of codes
-the Penal Code, the Criminal Procedure Code, the Civil Procedure
Code—which form landmarks in the history of Indian legislation.
But its establishment carried with it a hint of a changing attitude
towards the legislative authority. The Home Government now had
to its hand an instrument by which at more than one period they
hoped to control not merely the general policy but also the detail of
legislative enactments. From the first Wood seems to have regarded
the new legislative council as a tool for the shaping of his projects,
and speedily fell out with Dalhousie over the degree of authority and
independence which the legislative council should enjoy, and though
in 1861 the authority of the council was materially reduced, like
disputes broke out between the Duke of Argyll and Lord Mayo. 5
1 Hansard, 3rd Ser. CXXIX, 562.
2 16 & 17 Vic. c. 95, s. 28.
* Lee-Warner, Life of Dalhousie, 11, 236.
3 Vide pp. 379 399. , infra.
o Parl. Papers, 1876, LVI, 22 599.
## p. 19 (#49) ##############################################
COMPETITIVE EXAMINATIONS
19
2
The changes introduced into the administrative structure in India
were similarly mixed. The great province of Bengal was at last
provided with a separate government. The act permitted the appoint-
ment of a special governor or lieutenant-governor. 1 The latter, as
the cheaper appointment, was of course preferred. · Provision was
also made for the creation of a new province if necessary. ? But against
these improvements must be set the change made in the relative pay
of lieutenant-governors and of ordinary members of the governor-
general's council
. Till 1853 membership of the latter had been the
highest point within reach of the civil service. But now the annual
salary of the councillor was reduced to 80,000 rupees, while that of
the lieutenant-governor was raised to 100,000. The ill-effects of this
alteration still continue to be felt. The governor-general was deprived,
or relieved, of that independent, disinterested advice which might be
expected so long as his council did not look to him for further promo-
tion and dignity. But now the councillors were by law provided with
a motive for acquiescing wherever possible with the governor-general's
views, and the council of the Supreme Government lost the supreme
position commensurate with its dignity and duties.
In another respect also the act led up to an unfortunate situation.
Macaulay declared he was disposed to judge the bill by the effect
which he anticipated from the introduction of open competition on
the civil service. He seized the occasion to deliver a most eloquent
defence of that system of selecting public servants. Lord Stanley in
committee drew pointed attention to one weak side of the plan.
Unlimited cor:1petition which, in fact, would exclude all Indians
from participating he regarded as a step back, not a step forward,
for, he said, “while the old system could not have been permanent,
the present plan would not be felt as an abuse in this country, what-
ever it might be in India, and it would therefore be allowed to con-
tinue without improvement”. 4 But this forecast, which subsequent
events confirmed in every letter, fell unregarded.
It has been said that this act of 1853 was mainly based on a memo-
randum prepared by Dalhousie in 1852. 5 That does not seem to have
been the view of Dalhousie himself. “The India bill is a wretched
thing”, he exclaims; “no wonder Lord John wished to have nothing
to do with it. " Its great fault lay in its clinging too closely to the
ideas which forty years earlier had been wise, far-sighted, liberal,
which even twenty years before had been sound and progressive, but
which had come to need a revision, expansion, reorientation, which
they were not destined to find, either in 1853 or in 1858.
? Idem, ss. 43, 45.
3 Idem, s. 46.
1
4
## p. 7 (#37) ###############################################
THE LAW MEMBER
7
became universally valid. Experience had indeed shown that the
presidency governments needed more expert advice on legislative
drafts than could be provided by law officers chosen from the local
bar. The new act for the first time made provision for this. An
additional member of council was to be appointed by the Company
with the approval of the crown. The definition of his qualifications
was purely negative. He was not to be a member of the Company's
civil or military service. The only formal indication of the part he
was to play consisted in the declaration that he was to have rights
of speech and vote only at meetings of the council for the consideration
of legislative business. The office thus obscurely defined was that of
law member. The appointment was important in two ways. It con-
stituted the first step taken in India towards the establishment of a
legislature separate from the executive; and it provided the council
with a legal expert to criticise, amend or draft legislative proposals.
“The concurrence of the fourth member of council may be wanting to a law”, wrote
the directors, "and the law may be good still; even his absence at the time of
enactment will not vitiate the law; but parliament manifestly intended that the
whole of his time and attention, and all the resources of knowledge or ability
which he may possess, should be employed in promoting the due discharge of the
legislative functions of the council. "He has indeed no pre-eminent control over
the duties of this department, but he is peculiarly charged with them in all their
ramifications. "
And although he was entitled to sit and vote only when laws were
under consideration, the Company advised that he should be per-
mitted to sit at the executive meetings of the council.
"An intimate knowledge”, it wrote, "of what passes in council will be of essential
service to him in the discharge of his legislative functions. Unless he is in the habit
of constant communication and entire confidence with his colleagues; unless he is
familiar with the details of internal administration, with the grounds on which the
government acts and with the information by which it is guided, he cannot
possibly sustain his part in the legislative conferences or measures, with the know-
ledge, readiness and independence essential to a due performance of his duty. "
The advice was followed. Macaulay (the first law member) and his
successors were summoned to the ordinary as well as to the legislative
meetings.
The third measure taken in this connection was the creation of an
entirely new body. The governor-general in council was directed
to appoint “Indian law commissioners”, who were to enquire into
the jurisdiction, powers and rules of all courts and police-establish-
ments, all forms of judicial procedure, and the nature and operation
of all laws, civil and criminal, written or customary, and to propose
any necessary alterations, due regard being had to the rules of caste,
and the religions and manners of the people. They were to follow
such instructions as they should receive from the governor-general
in council, and to draw the pay that the latter should appoint in the
13 & 4 Will. IV, c. 85, S. 40. · Dispatch, 10 December, 1834, ut supra.
• Idem.
## p. 8 (#38) ###############################################
8
LEGISLATION AND SUPERIOR GOVERNMENTS
scale next below that enjoyed by members of council. 1 Thus came
into existence the first Indian Law Commission. It was designed to
fulfil a double object-to unravel the tangle of existing laws and to
advise on new projects of legislation. In both points the new body
(over which Macaulay and his successors presided without additional
pay) achieved much. It was employed by the new legislature to
consider and report on projected laws submitted by the subordinate
governments, and its reports form an interesting and very valuable
part of the legislative proceedings of the period. But its other and
indeed its principal object proved more difficult than had been
expected. Macaulay in 1833, with his usual lucid and specious gift
of statement, persuaded himself and the House of Commons that the
ideal moment had come in which to codify the Indian laws, and that
codification would be a relatively easy, rapid process, which should
be undertaken without delay. When he became law member, and
presided over the commission, he laboured hard to fulfil his promises.
He produced the first draft of the Penal Code. But that remained
a project until, having been reconsidered, amended, and much
improved, it was at last enacted in 1861. The first Indian Law Com-
mission thus only laid foundations on which other legislators were to
build.
The act of 1833 dealt with two other matters of great importance
-the mode of administering the presidency of Fort William and the
position and recruitment of the Company's civil service. Reform of the
government of Bengal was long overdue. The conquests and policy
of Wellesley had greatly expanded the territories of a province already
over-large. The Agra districts not only lay at a great distance from
the centre of government but also included the imperial city of
Delhi adjacent to the powerful state of Ranjit Singh in the Panjab.
Need therefore existed of a strong and vigilant local authority. Nor
was this all. The governor-general in council was responsible for
the general administration and policy of all British India as well as
for the particular administration of Bengal. This burden was in fact
more than he could bear. The detail of Bengal administration tended
therefore to be relegated to subordinate authorities. The Bengal
Board of Revenue acted largely as the government of the province.
A great part of the administration was thus entrusted to revenue
servants bred up in a revenue system which more than any other
discouraged familiarity with the customs and life of the people
To this unfortunate system, the evils of which were at the time but
partially recognised, the act applied two palliatives. It declared that
the territories under the presidency of Fort William were to be divided
int) two governments. 2 This involved the appointment of a separate
governor, but did not necessitate the appointment of a council. 3
& 4 Will. IV, c. 85, s. 53-5.
2 Idem, s. 38.
3 Idem, ss. 56, 57.
1
3
2
## p. 9 (#39) ###############################################
BENGAL
9
>
In regard to the dual position of the governor-general in council,
though Charles Grant had half-admitted the evils of the existing
system, ' nothing useful was done. The governor-general was declared
1
the governor of the Bengal Presidency. This involved a ridiculous
complication of functions. Till the passing of the act of 1833 the
governor-general of Bengal in council had also been the superin-
tending government of all British India. But now, in order to mark
the new powers and status of the superintending government, it
received a new designation—the governor-general of India in
council2so that while the governor-general and council had
become the central government, the governor-general alone con-
stituted the government of Bengal. The governor-general in council
thus had powers of superintendence, direction and control over the
governor-general, while the governor of Bengal could overrule the
council of India. “A state of things may perhaps occur”, the Com-
pany observed, “which may in some cases occasion embarrassment. ”3
However, another section of the act permitted the governor-general
in council to appoint an ordinary member of council deputy-governor
of Bengal; and in actual practice the senior ordinary member was
generally so appointed. This avoided the absurdity of the legal posi-
tion; but did nothing to improve the administration of the province,
which remained under a minimum of supervision for another twenty
years. In these matters the provisions of the act were far from ade-
quate to the needs of the country.
In regard to the recruitment of the Company's civil service the act
contained provisions of far-reaching but not immediate importance.
As has already been noted, Lord Grenville twenty years earlier had
suggested competition as providing the best means of recruitment.
This project was now introduced in a carefully limited form. The act
directed that estimates of probable vacancies in the civil service should
be sent to England annually; the estimates were to be considered by
the board, which was to certify to the court of directors what number
of nominations—not less than four times the number of expected
vacancies—might be made. The nominees were then to be examined
under rules to be made by the board and a quarter selected for
admission to the Company's college at Haileybury. After three years'
studies there, they were to be re-examined and the appointments
made accordinglyThis system, had it been carried into operation,
would have preserved the advantages of nomination while it intro-
duced those of competition. It would have excluded the bad bargains
who have always been the misfortune of every system of patronage;
it would also have excluded the very clever men, with no interest in
India but as a field for their talents, who have been the bane of the
system open competition. Unfortunately the directors of the day
· Hansard, 3rd Ser. XVIII, 727.
4 Will. IV, c. 85, s. 39.
• Dispatch, ic. December, 1834, ut supra. 3 & 4 Will. IV, c. 85, ss. 103-8.
of
3
&
1
## p. 10 (#40) ##############################################
10
LEGISLATION AND SUPERIOR GOVERNMENTS
felt more acutely the diminution in the value of their patronage than
the advantage of being obliged to exercise their patronage wisely.
They hated this infringement of their former privilege. They were
quite incapable of rebutting the eloquent arguments with which in
the House of Commons Macaulay developed, amplified and defended
the plan which he had borrowed and adapted from Grenville's original
proposal. But though they might be reduced to silence, their hearts
were obstinately unconvinced. In the following year they succeeded
in persuading the casy-going president of the board to move an
amending bill permitting them to defer the execution of these
directions. Macaulay, the one convinced and influential advocate of
the competitive principle, had then left England to take up his new
office of law member. The proposal was thus smuggled through with
little consideration, and the first serious attempt to trench upon the
directors' privilege ended ignominiously and without trial. This was
a great misfortune. Unrestricted competition, as afterwards adopted,
has not lacked its disadvantages. But the plan of 1833 might have
worked greatly to the welfare of India.
Beside this fruitless provision should be set another, equally bene-
volent and even less operative. No Indian subject of the crown
“by reason only of his religion, place of birth, descent, colour, or any
of them”, should "be disabled from holding any place, office, or
employment under the said Company”. 1 Clearly this did not mean
and was not designed to mean, that all offices were in future to be
thrown open indiscriminately to Indians. The clause of the act of
1793 declaring that none but covenanted servants of the Company
could hold any civil office carrying over £800 a year salary still
remained law;so that except for the new councillorship, which was
evidently intended to effect a very different object,none of the
higher civil offices were in law open to Indians until Indians were
included in the covenanted civil service. The object of the section, as
the directors rightly observed, was
not to ascertain qualification, but to remove disqualification. It does not break
down or derange the scheme of our government as conducted principally through
the instrumentality of our regular servants. . . . But the meaning of the enactment
we take to be that there shall be no governing caste in British India; that whatever
other tests of qualification may be adopted, distinctions of race or religion shall
not be of the number. . . . You well know, and indeed have in some important
respects carried into effect, our desire that natives should be admitted to places of
trust as freely and extensively as a regard for the due discharge of the functions
attached to such places will permit. . . Fitness is henceforth to be the criterion of
eligibility. . . . There is one practical lesson which. . . the present subject suggests to
us once more to enforce. While on the one hand it may be anticipated that the
range of public situations accessible to the natives and mixed races will gradually
be enlarged, it is, on the other hand, to be recollected that, as settlers from Europe
find their way into the country, this class of persons will probably furnish candidates
for those very situations to which the natives and mixed races will have admittance.
3 & 4 Will. IV, c. 85, s. 87. 2 33 Geo. III, c. 52, s. 57.
3 Cf. Hansard, 3rd Ser. xix, 664.
!
1
1
1
## p. 11 (#41) ##############################################
SLAVERY
II
Men of European enterprise and education will appear in the field; and it is hy
the prospect of this event that we are led particularly to impress the lesson already
alluded to on your attention. In every view it is important that the indigenous
people of India, or those among them who by their habits, character or position
may be induced to aspire to office, should as far as possible be qualified to mcet
thcir European competitors. 1
The clause therefore became the basis of that educational policy
which took shape, in the years immediately following, under the
influence of Macaulay more than any other individual.
At a time when the slave question was so prominently in the minds
of all men, it was inevitable that the act should attempt to deal with
slavery in India. The act as originally introduced directed that
slavery in the Company's territories should be brought to an end by
12 April, 1837, or earlier if possible. A little consideration, however,
soon made it evident that the question of slavery in India was a
different matter from slavery in the West Indies. In India it was
complicated by caste, by Hindu custom, by Muslim law. A greater
latitude of action was therefore accorded to the government of India.
Instead of requiring abolition by a fixed date, the act only directed
the governor-general in council to take the matter into considera-
tion, to mitigate the position of slaves in India as soon as possible,
and to abolish slave status at the earliest practicable moment. 3 The
Company's instructions under this head were shrewd and cautious.
It pointed out that remedial measures should be so framed as to leave
untouched the authority recognised by both Hindu and Muslim law
in the heads of families. Of real slavery in India, predial slavery
occurred only in certain limited areas, while domestic slavery was
mild. The first reform which it recommended was to make the
punishment of injuries inflicted on slaves as heavy as if they had been
inflicted on free persons; while it was suggested that emancipation
should only be effected where it was desired by the slave, and should
always be “a judicial proceeding, investigated and decided by the
judge”. 4 In social as in political affairs, India was not to be made the
subject of wholesale experiments.
As a whole the act, while very imperfect, was permeated by the
liberal ideas of the age, and some contemporary comment fell far
short of justice. Shore, for example, who should have known better,
observed, “Provided each party could gain its own selfish and short-
sighted objects, the government of India was thrown into the bargain
with as much indifference as if the people in question had been a herd
of cattle”. 5 The act which approached the slavery question with wise
caution, which sought to introduce competition into the recruitment
of the civil service, which abolished the Company's trading rights, and
envisaged though in an over-sanguine spirit the increased employ-
1 Dispatch, 10 December, 1834, ul supra. 2 Bill, s. 88.
* 3 & 4 Will. IV, c. 85, s. 88.
• Dispatch, 4 December, 1834, ul supra.
• Notes an Indian Affairs, 1, 390.
3
## p. 12 (#42) ##############################################
12
LEGISLATION AND SUPERIOR GOVERNMENTS
ment of Indians and the reform of the Indian law, was a good deal
more than a corrupt bargain between two parties in the British
parliament. Its defects were of a very different nature. It did not
sufficiently reorganise the Indian government. The governor-general
should, as had been at first proposed, have been given the assistance
of a councillor from each presidency, and should have been wholly
freed from the duties of local administration in Bengal. Legislation
and administration were both over-centralised. In short the act
imposed on the government of India duties too extensive and detailed
to be carried out by a single group of men. It was probable, there-
fore, that the coming years would be marked by an excessive uni-
formity of policy and a decline in the efficient working of the adminis-
trative machine, due to the development of centralisation in advance
of communications.
The Home Government under the act remained almost as it had
been before, though it was in fact little understood. Indeed the
debates of 1853, when the constitution came up once more for recon-
sideration, revealed the most singular differences of opinion. Some
declared that India had been governed by the board, others that it
had been governed by the Company. In one way at all events the
provisions of the statutes had been considerably modified by usage.
The offices of governor-general, of governor, and of fourth member
of the governor-general's council, were to be filled by the Company's
appointment, subject to the approval of the crown. Further pro-
vision had been made in 1833 that vacant governorships or seats in
council must be filled by the Company within two months after the
receipt of the notification, otherwise its right of appointment would
pass to the crown, and persons so appointed would not be liable to
recall by the Company. It was therefore expected that normally
names would be proposed by the directors for the approval of the
minister, who would exercise a veto over their proposals. But the
time limit of two months, within which the directors had to propose
an acceptable name unless they were to forfeit that exercise of their
patronage, greatly though perhaps undesignedly increased the
minister's influence in this matter; with the result that in practice
names came to be proposed by the minister, and the Company's
power of appointment came to be in effect a right of veto. 2
This became evident almost as soon as the act came into force.
Bentinck announced his intention of coming home, and the directors
were eager to secure the succession as governor-general to their very
distinguished servant, Sir Charles Metcalfe. Charles Grant, still
president of the board, objected, and a long correspondence ensued,
in the course of which the limited two months almost passed away,
and finally the chairman of the court was reduced to writing to the
president of the board that he could not accede to any further delay
1 3 & 4 Will. IV, c. 85, s. 60. 2 Cf. Hansard, 3rd jer. cxxix, 48.
## p. 13 (#43) ##############################################
THE COMPANY AND THE BOARD
13
in proposing the name of a possible successor. " The power of nomina-
tion had already passed out of the Company's hands.
While this question was still at issue, a change of ministry took
place, Lord Heytesbury was proposed by the new president and
accepted by the court of directors.
But before Heytesbury had sailed
for India, Melbourne came back into office and resolved that a
ministerial supporter should be rewarded with the governor-general-
-
ship of India. This was described as a marked breach of precedents.
But while it was agreed that a governor-general exercising his office
in India should not be recalled by a mere change of ministry at home,
it was much less clear that a governor-general who had not yet sailed
from England should as a thing of course be permitted to take up his
office under a government other than that which had nominated him.
The earlier cases—Minto's and Bentinck's—did not illustrate this
position at all. The court of directors did their utmost to prevent
Melbourne from acting on his resolve. They declared their fear and
alarm at any measure which would render "the high and responsible
station of governor-general of India subscrvient to political purposes
in this country”. 2 But in such cases they were really helpless and
were obliged to acquiesce in a change. The discussions ended in the
selection of the unfortunate Auckland as the new governor-general.
The reader must not, however, hastily conclude that the Board
of Control could impose the man of its choice on the court of
directors. The latter possessed and retained down to the end of its
political existence the power of recalling any office-holder in India,
including all governors and the governor-general himself. Even the
most aggressive of presidents was therefore obliged to refrain from
proposing persons who would be really unwelcome to the court of
directors. On at least two occasions within the period covered by the
present chapter was the recall of the governor-general seriously con-
sidered, and on one of these it was actually effected. The first case was
that of Lord Amherst. In 1825, when the news of the Burma War
was followed by that of the Sepoy mutiny at Barrackpore, the directors
were so seriously disturbed at the course events were taking that they
debated the propriety of recalling the governor-general immediately.
The president of the board, Wynn, being unable to dissuade them
from this course, Canning was employed to take the matter up with
them, in Lord Liverpool's absence; and he succeeded in smoothing
matters over with a promise that the papers should be laid before the
Duke of Wellington for his opinion. The second case was that of
Lord Ellenborough in 1844. Despite his great talents Lord Ellen-
borough notably lacked the art of managing others. On arriving in
India he speedily quarrelled with the whole civil service, preferring
to employ soldiers wherever he had any choice, conducting his
i Kaye, Life of Tucker, p. 480.
Kaye, op. cit. p. 46o.
• Canning to Liverpool, 3 October, 1825. Brit. Mus. Add. MSS, 38193, f. 233.
3
## p. 14 (#44) ##############################################
14
LEGISLATION AND SUPERIOR GOVERNMENTS
political correspondence through his private, instead of through the
political, secretary, and quitting Calcutta in order that he might
avoid having to communicate his plans to the members of his council.
This not only increased the difficulties of his work in India, but also
indisposed the directors who resented the slight thus cast upon
their
relations and protégés. Incidentally the same cause inspired the
peculiar acrimony with which Kaye, usually a fair-minded man,
approached every aspect of Ellenborough's conduct. Then too, the
governor-general's impulsive character could not submit to be bound
even by the rules which he himself had laid down. When president
of the board in 1830 he had ordered that no public works costing
over 10,000 rupees should be undertaken without the previous
sanction of the East India Company; but now he established new
and expensive cantonments on his own authority. 1 His Sind policy
provoked strong criticism. Above all he regarded both the Board of
Control and the court of directors with a scorn far too great to be
concealed. 2 In 1843 his close friend, Wellington, had urged him
earnestly to display greater prudence. But this was in vain. Early
in the following year the directors resolved that he should be recalled.
Though there was much truth in the queen's view that this was unwise
and ungrateful, the governor-general's conduct had exhibited too
many irregularities for the ministry to be able to make any effective
defence. Peel therefore acquiesced in his recall, but at the same time
gave him a step in the peerage and the Grand Cross of the Bath. With
these solatia Ellenborough came home.
In its way this episode was as significant as Auckland's appointment
had been. If the latter showed that the ministry possessed the real
power of nomination, the former proved that the Company's veto
was no empty form, for no ministry would venture to insist on the
appointment of a governor-general or governor who might be recalled
before he had even landed in India.
In fact the Company retained and continued to exercise a con-
siderable share in the authority exercised by the Home Government.
It is true that matters of foreign policy, of war, peace, and alliances,
had slipped altogether from its control; and the only way in
which it could mark its disapproval was the extreme course of
recalling a peccant governor-general. As Wood observed in the
debates of 1853, the responsibility for Indian foreign policy lay
exclusively with the president of the board and through him with the
cabinet. 5 But in fact this was the branch of policy in which an
effective home control was least practicable. Macaulay's words-
"India is and must be governed in India. This is a fundamental law
which we did not make, which we cannot alter, and to which we
.
H
1
1
1
1 Cf. Colchester, Ellenborough's Indian Administration, p. 369.
• Law, India under Lord Ellenborough, pp. 104, 165. ; Colchester, ut supra.
• Queen Victoria's Letters, II, 9.
• Hansard, 3rd Ser. cxxix, 764.
1
## p. 15 (#45) ##############################################
THE COMPANY AND THE BOARD
15
should do our best to conform our legislation”—while generally true,
were peculiarly true of foreign affairs. The war in Sind, the war with
Sindhia, the war with Burma, the wars with the Sikhs, were begun,
conducted, and concluded on the responsibility of the governor-
general of the day. So that the province in which at London the
authority of the board was uncontested was also that in which its
authority could be least exercised.
In all other matters the policy of the court of directors had to be
taken into serious consideration. The actual relations between the
court and the board in this period cannot be determined with pre-
cision, for the original and vital conferences, in which their respective
views were stated and discussed between the president and the chairs,
have left no record other than an occasional private letter. Regular
documentary evidence in the “previous communications”) only
appears as a rule when the principal points of difference have been
cleared away. The best account (so far as the present writer is aware)
of these relations is contained in a letter of St George Tucker, who
had enjoyed prolonged experience in his repeated tenure of the chair-
manship of the Company.
“The Board”, he writes, “ have. . . a general and absolute restraining power; but
they cannot propel us forwards if we choose to resist. Our vis inertiae alone is sometimes
sufficient to arrest their proceedings. The present government have on more than
one occasion resorted to a high judicial tribunal for the purpose of coercing us by
a mandamus; but they signally failed. On a late occasion they ordered us to dismiss
all the judges of our court of Sudder Diwanny Adawlut (the head court of appeal
in Bengal)—we refused—they threatened to dismiss them by their own authority-
they were told that this could only be done by a mandate of recall under the sign
manual; but they were not prepared to undertake such a responsibility, and the
case was closed by a peevish censure.
“The court of directors still by law retain the initiative; and although by the
connivance of their organs this privilege may be rendered of no avail, it has hereto-
fore been asserted with very salutary effect. We are also at liberty to protest, and
to expose to public view instances of maladministration; so that, as long as the
court shall be filled by independent and honourable men, they may, not only by
their knowledge and experience, assist in giving a proper direction to the machine
а
of government, but they can also exert a wholesome influence in checking the
career of an unscrupulous government. ”1
Tucker's letter ends on a melancholy note. “I feel most painfully”,
he adds, "that we are gradually sinking. ” There was, no doubt,
a steady growth during the twenty years following 1833 of the idea
that direct crown government was the inevitable and desirable end.
In 1833 that idea had been cherished by extremists on the one side
like Ellenborough and on the other like J. S. Buckingham. In 1853
the idea was much more widely held. That fact of itself would no
doubt have tended to inake the president of the board more assertive
of his powers and more disposed to push them to their extreme length.
But the position of the Company seems to have remained strong
>
1 Kaye, op. cit. p. 483.
## p. 16 (#46) ##############################################
16 LEGISLATION AND SUPERIOR GOVERNMENTS
a
enough to permit an obstinate resistance. At all events the legislators
of 1853 clearly felt that the Company would not decline into a mere
consultative council without a material change in the existing law.
The new act provided for the reduction of the directors from twenty-
four to eighteen, and for the immediate appointment of three (rising
gradually to six) by the crown. Since at the same time the quorum
of directors was lowered from thirteen to ten, it would be possible for
the crown nominees to constitute the majority in a thinly attended
court. 1 The intention evidently was to prepare for the time when the
Company should lapse and its functions be entrusted to a consultative
council. This was frankly recognised in debate. Sir James Graham,
for example, “believed that the introduction into the direction of a
small proportion of directors nominated by the crown would form the
nucleus of a consultative body hereafter which should be the council
of the sole minister of India named by the crown” 2 It is clear
therefore that the plan which was adopted in 1858 was no newly
found expedient, but rather a solution towards which men had been
consciously working.
Affairs in another direction also had moved so far as to abrogate
the chief reason which had demanded the maintenance of the
Company. Ever since 1781 the main obstacle to the Company's
abolition had been the exercise of the Indian patronage, which no
one save Fox had dared seek to appropriate. Grenville in 1813 had
indicated an avenue of escape from the dilemma. Macaulay in 1833
had attempted to open up the avenue. Now in 1853 it was decreed
that the directors' patronage should cease, that the Board of Control
should prepare rules for the examination of candidates for the civil
service, that all natural-born subjects of Her Majesty should be
eligible to compete, subject to the rules that the board should prepare,
and that all appointments should be made on the results of the
examination. 3 Given the success of this experiment, men naturally
began to look for the disappearance of the Company according to
plan in 1873. The Mutiny merely accelerated the foregone and care-
fully anticipated course of events.
Two other small points show how definitely opinion had developed.
When the presidency of the Board of Control had been first instituted,
it had been held in conjunction with other important offices, and
carried a salary of £2000 a year. When in 1810 it had come to be held
alone, the pay had been raised to £5000, but in 1831 “in a hot fit of
economy”4 had been reduced to £3500. It was pointed out that the
post had become either a mere stepping-stone to something better or
a refuge for the politically needy, that the president “did not fill that
office in the cabinet which he ought to do”, that there would be
constitutional objections to making him a secretary of state, but that
1 16 & 17 Vic. c. 95, ss. 2-6. 2 Hansard, 3rd Ser. cxxix, 70.
3 16 & 17 Vic. c. 95, ss. 36-42. • Hansard, 3rd Ser. cxxix, 38,
## p. 17 (#47) ##############################################
LEGISLATION
17
at all events his salary should be raised to the same level. 1 It was
therefore resolved that his salary should not be less than that of a
secretary of state-another preparatory step for the change of 1858.
At the same time the approval of the crown became in future necessary
for all appointments of councillors, whether to the governor-general's
council or to those of the subordinate governments.
The act of 1853 thus strengthened the position of the crown half of
the Home Government and reflected the growing anticipation of the
time when it would be the sole organ of government. Other pro-
visions dealt with the government in India. Some of the most
important modified the governor-general's council. The law member
became an ordinary member, entitled to speak and vote at all meetings,
legislative or executive, of the council,3 thus removing a disability
against which Macaulay had strongly protested. The legislative
authority of the governor-general was materially enlarged. Under
the act of 1833, while the governor-general at executive meetings
could act with one member only and could overrule the decisions
taken by a majority, at legislative mectings his presence was not
necessary, these three ordinary members could act without him, and
he had merely a casting vote. Under the new act no law was to have
force until it had received his assent, so that he was given a power
of
veto which till then had been lodged only in the home authorities.
A long step was also made towards further differentiating the legis-
lature from the executive. Under the act of 1833 the distinction
between the two had consisted only in the right of the law member
to speak and vote. Now a large relative increase in the council was
made for legislative purposes. Certain additional persons were to be
added under the statutory title of “legislative councillors”. These
were to consist of a member nominated by each governor or lieutenant-
governor, from among the civil servants of at least ten years' standing,
the chief justice of the Supreme Court of Calcutta, one of the puisne
judges of the court, and, if the Company authorised the step, two
more civil servants of at least ten years' standing nominated by the
governor-general. Thus the legal element was greatly strengthened,
and new provincial elements appeared. An attempt was made in
committee in the House of Commons to amend the section so as to
introduce on to the council European and Indian non-officials. But
this proposal was defeated by the opposition of the president of the
board, Sir Charles Wood, who, while favouring the extension of the
administrative employment of Indians, declared truly enough that
no two Indians could be found to represent adequately the diversity
of Hindu and Muslim society. 5 It was afterwards averred that the
absence of Indians on the legislative council had facilitated legislation,
3 16 & 17 Vic. c. 95, s. 33.
4 Idem, s. 22.
Hansard, 3rd Ser. cxxix, 822, 854.
* Idem, s. 21.
• Hansard, 3rd Ser. CXXIX, 418 599.
CHIVI
2
## p. 18 (#48) ##############################################
18
LEGISLATION AND SUPERIOR GOVERNMENTS
which by alarming Hindu sentiment had assisted to provoke the
Mutiny. But that criticism, while just in itself, probably misses the
principal defect of the new arrangement. The natural English desire
to create an Indian legislature visibly separate from the executive led
inevitably to the formation of a body free in theory but shackled in
practice. There was in fact no immediate need to separate executive
and legislature. A method, preferable because more elastic and more
easily capable of development, would have been to leave the actual
legislative organ untouched, but to have attached to it a consultative
committee, on which many classes and interests could have been
represented and on which there would have been no need of that
irritating official bloc, the sole purpose of which was to preserve the
executive control over legislation in bodies which had been tech-
nically invested with legislative power.
Another change of some interest in the legislative sphere was also
made. The former act had authorised the establishment of law com-
missioners in India mainly in order to accomplish the codification of
Indian law. This body, though far from inactive, had achieved little
beyond drafts that still awaited final revision. Owing to complaints
from the government of India that it cost far more than it was worth,
it had not been maintained at its full strength, and had been reduced
to one member and a secretary in addition to the law member of
council who acted as its president. 1 The new act therefore recited the
fact that, although numerous reports had been sent to England, no
final decision on them had been taken, and authorised the crown to
appoint persons in England to examine these recommendations and
such other matters as might be referred to them with the approval of
the board, and to report what legislation might be expedient. 2
The Law Commission was thus reconstituted and transferred from
Calcutta to London. This change led to mixed good and evil. As will
be seen from a later chapter,3 it at last led to the enactment of codes
-the Penal Code, the Criminal Procedure Code, the Civil Procedure
Code—which form landmarks in the history of Indian legislation.
But its establishment carried with it a hint of a changing attitude
towards the legislative authority. The Home Government now had
to its hand an instrument by which at more than one period they
hoped to control not merely the general policy but also the detail of
legislative enactments. From the first Wood seems to have regarded
the new legislative council as a tool for the shaping of his projects,
and speedily fell out with Dalhousie over the degree of authority and
independence which the legislative council should enjoy, and though
in 1861 the authority of the council was materially reduced, like
disputes broke out between the Duke of Argyll and Lord Mayo. 5
1 Hansard, 3rd Ser. CXXIX, 562.
2 16 & 17 Vic. c. 95, s. 28.
* Lee-Warner, Life of Dalhousie, 11, 236.
3 Vide pp. 379 399. , infra.
o Parl. Papers, 1876, LVI, 22 599.
## p. 19 (#49) ##############################################
COMPETITIVE EXAMINATIONS
19
2
The changes introduced into the administrative structure in India
were similarly mixed. The great province of Bengal was at last
provided with a separate government. The act permitted the appoint-
ment of a special governor or lieutenant-governor. 1 The latter, as
the cheaper appointment, was of course preferred. · Provision was
also made for the creation of a new province if necessary. ? But against
these improvements must be set the change made in the relative pay
of lieutenant-governors and of ordinary members of the governor-
general's council
. Till 1853 membership of the latter had been the
highest point within reach of the civil service. But now the annual
salary of the councillor was reduced to 80,000 rupees, while that of
the lieutenant-governor was raised to 100,000. The ill-effects of this
alteration still continue to be felt. The governor-general was deprived,
or relieved, of that independent, disinterested advice which might be
expected so long as his council did not look to him for further promo-
tion and dignity. But now the councillors were by law provided with
a motive for acquiescing wherever possible with the governor-general's
views, and the council of the Supreme Government lost the supreme
position commensurate with its dignity and duties.
In another respect also the act led up to an unfortunate situation.
Macaulay declared he was disposed to judge the bill by the effect
which he anticipated from the introduction of open competition on
the civil service. He seized the occasion to deliver a most eloquent
defence of that system of selecting public servants. Lord Stanley in
committee drew pointed attention to one weak side of the plan.
Unlimited cor:1petition which, in fact, would exclude all Indians
from participating he regarded as a step back, not a step forward,
for, he said, “while the old system could not have been permanent,
the present plan would not be felt as an abuse in this country, what-
ever it might be in India, and it would therefore be allowed to con-
tinue without improvement”. 4 But this forecast, which subsequent
events confirmed in every letter, fell unregarded.
It has been said that this act of 1853 was mainly based on a memo-
randum prepared by Dalhousie in 1852. 5 That does not seem to have
been the view of Dalhousie himself. “The India bill is a wretched
thing”, he exclaims; “no wonder Lord John wished to have nothing
to do with it. " Its great fault lay in its clinging too closely to the
ideas which forty years earlier had been wise, far-sighted, liberal,
which even twenty years before had been sound and progressive, but
which had come to need a revision, expansion, reorientation, which
they were not destined to find, either in 1853 or in 1858.
