It declared that
the territories under the presidency of Fort William were to be divided
int) two governments.
the territories under the presidency of Fort William were to be divided
int) two governments.
Cambridge History of India - v4 - Indian Empire
.
.
to give a
good government to a people to whom we cannot give a free govern-
ment”. Even James Mill, that zealot of representative institutions,
had declared them to be utterly out of the question. Therefoie
we have to engraft on despotism the natural fruits of liberty. In these circumstances,
Sir, it behoves us to be cautious even to the verge of timidity. . . . We are walking
in darkness—we do not distinctly see whither we are going. It is the wisdom of
a man so situated to feel his way, and not to plant his foot till he is well assured that
the ground before him is firm. 1
Twenty years later he was still the advocate of reform with caution.
“Such a bill”, he declared, “ought to make alterations, and yet it
ought not to be final. The bill. . . ought to be a large yet cautious step
in the path of progress. ”. He seems not to have noticed that the steps
were becoming shorter, or that the rate of progress was slowing down.
The ideas underlying the bill of 1833 were most clearly expressed
in the speech of Charles Grant, afterwards Lord Glenelg, and at
that time president of the Board of Control. The first point which
he emphasised was the need of abolishing the Company's trading
activities and reducing it to a purely administrative body. The union
of the characters of sovereign and trader, he observed, was “calcu-
lated to give a false impression of the character of the government”. 3
In the second place he put the need of improvement in the govern-
mental machinery in India. The presidency of Fort William was
overgrown and should be divided into two. Perhaps the governor-
general should not be required to supervise the whole conduct of
affairs and at the same time to administer a particular government;
certainly he ought to be invested with higher powers of control over
the subordinate presidencies. In the third place the laws should be
amended, the legislatures improved, the anomalous and conflicting
judicatures reformed. Slavery should be abolished, and Europeans
admitted freely into the country.
To a large extent these projects were carried into law. “This
political monster of two natures-subject in one hemisphere, sovereign
in another”, was made much less anomalous by being required with
all convenient speed after 12 April, 1834, to close down its commercial
business, and to pension or otherwise provide for its commercial
servants, under the superintendence of the Board of Control. Its
capital became a charge on the territorial revenues and provision was
· Hansard, 3rd Ser. XIX, 512-13.
2 Idem, CXXVIII, 741.
: Idem, XVIII, 705.
• Idem, XVIII, 727 599.
5 Macaulay, idem, XIX, 509.
3 & 4 Will. IV, c. 85, ss. 4, 6.
6
1-2
## p. 4 (#34) ###############################################
4
LEGISLATION AND SUPERIOR GOVERNMENTS
!
1
1
1
made for its repayment in forty years, or earlier should the govern-
ment of the Indian territories be taken away from it. 1 This was in
fact making leisurely provision for the time when the Company might
at last be abolished. But at the moment abolition was regarded as
premature, for the old jealousy of the executive was still strong.
Macaulay expressed the general attitude with customary point and
vigour. Authority ought not to be vested in the crown alone, for in
such matters parliament could not provide the necessary criticism and
control.
That this house is, or is ever likely to be, an efficient check on abuses practised in
India, I altogether deny. . . . What we want is a body independent of the govern-
ment, and no more than independent—not a tool of the Treasury, not a tool of the
opposition. . . . The Company. . . is such a body. ?
The problems connected with the Indian governments were less
easy of solution. The original bill declared that “the whole civil and
military government of all the said territories and revenues in India
shall be. . . vested in a governor-general and counsellors. . . ”. . But
this proposal met with criticism in both the Commons and the Lords.
It was felt that it would overwhelm the Supreme Government with
unnecessary detail and strip the subordinate governments of all
authority and credit. It was therefore decided to moderate the
section, so as to give the governor-general and council, not the whole
government, but “the superintendence direction and control”. 5
Another proposal directed to the same end had also to be materially
modified. The bill proposed that in future the subordinate pre-
sidencies should be administered by governors only, though per-
mitting the Company to appoint councillors where necessary. At the
same time an additional Company's servant was to be added to the
governor-general's council, making four in all, designed (it seems)
to permit the appointment of a representative from each of the four
contemplated presidencies. This last change would have been a
great improvement, for the governor-general's council possessed no
personal knowledge of the subordinate presidencies. But it was
thought that the change would lead to too much interference on the
part of the central government. The connected proposal to abolish
the subordinate councils was eminently distasteful to the Company,
for it would have diminished the value of its patronage. The addi-
tional Company's servant on the supreme council was therefore
dropped, while the existing form of presidency government was
continued, though the Company was empowered to suspend the
councils or diminish the number of councillors. ?
1
3 Bill, s. 30.
3 & 4 Will. IV, c. 85, ss. 11-17.
2 Hansard, 3rd Ser. xix, 513, 516.
* Hansard, 3rd Ser. xix, 543; cf. xx, 322.
3 & 4 Will. IV, c. 85, s. 39; cf. s. 65.
6 Hansard, 3rd Ser. XVIII, 750; Bill, ss. 37, 39, 55, 56.
3 & 4 Will. IV, c. 85, ss. 40, 56, 57.
5
7
## p. 5 (#35) ###############################################
LEGAL ANOMALIES
5
The draft provisions regarding legislation were more successful in
procuring parliamentary adoption. At this time each of the three
presidencies enjoyed equal legislative powers; though the governor-
general possessed a legal right of veto over the legislation of the
subordinate governments, it had in fact been little exercised. 1 Thus
had come into existence three series of regulations, as these enactments
were called, frequently ill-drawn, for they had been drafted by
inexperienced persons with little skilled advice; frequently conflicting,.
in some cases as a result of varying conditions, but in others merely
by accident; and in all cases enforceable only in the Company's courts
because they had never been submitted to and registered by the king's
courts. Besides these were the uncertain bodies of Muslim and Hindu
law, uncertain because of a variety of texts and interpretations, and
still more uncertain because of the varying application which they
received in the courts themselves. Lastly came English statute and
common law and equity, applied by the king's courts. These con-
flicting series of laws were enforceable by two different and generally
hostile judicatures, with ill-defined jurisdictions. In general the king's
courts exercised jurisdiction within the limits of the presidency towns
of Calcutta, Bombay and Madras, while the Company's courts
exercised jurisdiction over the dependent territories. But apart from
this territorial jurisdiction, the king's courts possessed a personal
jurisdiction over British-born subjects, in some cases involving juris-
diction over Indian-born subjects. This particular aspect of the
matter was clearly destined to be of growing importance. The doors
of India, as the directors said, were to be "unsealed for the first time
to British subjects of European birth”. Englishmen, who had till then
resided in India on sufferance, were to acquire a right to reside and
even to acquire land there. Since the Company's trade was to cease,
a large number of merchants and traders were expected to settle in
India to take advantage of the change. It was evidently inexpedient
that the two classes of subjects, Indian and English, should continue
to live under separate laws administered by separate courts or that the
latter when accused of wronging the former, or accusing the former
of wrong, should be able to insist on the issue being tried by a strange,
unsuitable and probably very distant court.
For these various and cogent reasons it was resolved to modify the
legislative authority in India, to extend its legislative competence,
and to prepare for a general reform of the judicial system. The
subordinate governments, it was felt, should lose their legislative
authority altogether-a measure which appears the more natural
when it is remembered that it was also intended at first to abolish
their councils. The existence of three legislatures had added much to
the complexity of the legal system, the simplification of which would
1 Hansard, 3rd Ser. XVUI, 727.
• Dispatch to the Guvernment of India, 10 December, 1834 (Ilbert, ist ed. Appendix).
## p. 6 (#36) ###############################################
6
LEGISLATION AND SUPERIOR GOVERNMENTS
be aided by concentrating all legislative authority in a single body.
This change was also supported by the proposed extension of power,
which parliament would concede least unreadily to the governor-
general and his council. It was therefore decided to transfer all power
of making laws to them; and it was thought that the need of special
laws to suit local peculiarities would be sufficiently met by empowering
the presidency governments to submit to the governor-general and
council draft laws to be enacted or not as might scem best.
The powers granted to the governor-general and council were much
wider than any till then entrusted to an Indian legislature. They
could make laws to repeal, amend or alter
any laws or regulations whatever now in force or hereafter to be in force in the said
territories. . . , and to make laws and regulations for all persons, whether British
or native, foreigners or others, and for all courts of justice, whether established by
His Majesty's charters or otherwise, and the jurisdiction thereof,
except that they could not modify the new act, the mutiny act, any
future act of parliament relating to India, or the sovereignty of the
crown. But apart from this limitation all their acts should possess
“the same force and effect” as any act of parliament, and “shall be
taken notice of by all courts of justice whatsoever within the said
territories". 2
These were full powers for a dependent legislature. Their particular
importance lay, however, in one main point. Till 1833 no Indian
legislation had the least effect in the Supreme Courts. It is true that
provision had been made by which an Indian regulation would
become binding on those courts once it had been registered by them.
But such registration had lain wholly within the pleasure of the courts
themselves; and the Indian governments had steadily refused to
recognise the veto in effect entrusted to the courts by refusing to
submit their acts for registration. Their legislation had thus been
binding on Indian residents outside the presidency towns and on the
Company's courts established in the Mufassal, but not binding on
either Indian or European residents at government headquarters or
the king's courts established there. Now it became equally binding
on all classes of inhabitants, whatever their place of residence, and
on all courts of law, whatever the authority by which they were
constituted. In order to complete its powers the new legislature was
authorised to modify or define the jurisdiction even of courts esta-
blished by royal charter, though the latter might not be abolished
without the previous sanction of the home authorities. 3
One object of the earlier statutes requiring regulations to be
registered in the Supreme Courts before becoming enforceable in the
presidency towns had been to secure the criticism of the respective
benches before the laws adopted by the Company's governments
3 & Will. 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.
good government to a people to whom we cannot give a free govern-
ment”. Even James Mill, that zealot of representative institutions,
had declared them to be utterly out of the question. Therefoie
we have to engraft on despotism the natural fruits of liberty. In these circumstances,
Sir, it behoves us to be cautious even to the verge of timidity. . . . We are walking
in darkness—we do not distinctly see whither we are going. It is the wisdom of
a man so situated to feel his way, and not to plant his foot till he is well assured that
the ground before him is firm. 1
Twenty years later he was still the advocate of reform with caution.
“Such a bill”, he declared, “ought to make alterations, and yet it
ought not to be final. The bill. . . ought to be a large yet cautious step
in the path of progress. ”. He seems not to have noticed that the steps
were becoming shorter, or that the rate of progress was slowing down.
The ideas underlying the bill of 1833 were most clearly expressed
in the speech of Charles Grant, afterwards Lord Glenelg, and at
that time president of the Board of Control. The first point which
he emphasised was the need of abolishing the Company's trading
activities and reducing it to a purely administrative body. The union
of the characters of sovereign and trader, he observed, was “calcu-
lated to give a false impression of the character of the government”. 3
In the second place he put the need of improvement in the govern-
mental machinery in India. The presidency of Fort William was
overgrown and should be divided into two. Perhaps the governor-
general should not be required to supervise the whole conduct of
affairs and at the same time to administer a particular government;
certainly he ought to be invested with higher powers of control over
the subordinate presidencies. In the third place the laws should be
amended, the legislatures improved, the anomalous and conflicting
judicatures reformed. Slavery should be abolished, and Europeans
admitted freely into the country.
To a large extent these projects were carried into law. “This
political monster of two natures-subject in one hemisphere, sovereign
in another”, was made much less anomalous by being required with
all convenient speed after 12 April, 1834, to close down its commercial
business, and to pension or otherwise provide for its commercial
servants, under the superintendence of the Board of Control. Its
capital became a charge on the territorial revenues and provision was
· Hansard, 3rd Ser. XIX, 512-13.
2 Idem, CXXVIII, 741.
: Idem, XVIII, 705.
• Idem, XVIII, 727 599.
5 Macaulay, idem, XIX, 509.
3 & 4 Will. IV, c. 85, ss. 4, 6.
6
1-2
## p. 4 (#34) ###############################################
4
LEGISLATION AND SUPERIOR GOVERNMENTS
!
1
1
1
made for its repayment in forty years, or earlier should the govern-
ment of the Indian territories be taken away from it. 1 This was in
fact making leisurely provision for the time when the Company might
at last be abolished. But at the moment abolition was regarded as
premature, for the old jealousy of the executive was still strong.
Macaulay expressed the general attitude with customary point and
vigour. Authority ought not to be vested in the crown alone, for in
such matters parliament could not provide the necessary criticism and
control.
That this house is, or is ever likely to be, an efficient check on abuses practised in
India, I altogether deny. . . . What we want is a body independent of the govern-
ment, and no more than independent—not a tool of the Treasury, not a tool of the
opposition. . . . The Company. . . is such a body. ?
The problems connected with the Indian governments were less
easy of solution. The original bill declared that “the whole civil and
military government of all the said territories and revenues in India
shall be. . . vested in a governor-general and counsellors. . . ”. . But
this proposal met with criticism in both the Commons and the Lords.
It was felt that it would overwhelm the Supreme Government with
unnecessary detail and strip the subordinate governments of all
authority and credit. It was therefore decided to moderate the
section, so as to give the governor-general and council, not the whole
government, but “the superintendence direction and control”. 5
Another proposal directed to the same end had also to be materially
modified. The bill proposed that in future the subordinate pre-
sidencies should be administered by governors only, though per-
mitting the Company to appoint councillors where necessary. At the
same time an additional Company's servant was to be added to the
governor-general's council, making four in all, designed (it seems)
to permit the appointment of a representative from each of the four
contemplated presidencies. This last change would have been a
great improvement, for the governor-general's council possessed no
personal knowledge of the subordinate presidencies. But it was
thought that the change would lead to too much interference on the
part of the central government. The connected proposal to abolish
the subordinate councils was eminently distasteful to the Company,
for it would have diminished the value of its patronage. The addi-
tional Company's servant on the supreme council was therefore
dropped, while the existing form of presidency government was
continued, though the Company was empowered to suspend the
councils or diminish the number of councillors. ?
1
3 Bill, s. 30.
3 & 4 Will. IV, c. 85, ss. 11-17.
2 Hansard, 3rd Ser. xix, 513, 516.
* Hansard, 3rd Ser. xix, 543; cf. xx, 322.
3 & 4 Will. IV, c. 85, s. 39; cf. s. 65.
6 Hansard, 3rd Ser. XVIII, 750; Bill, ss. 37, 39, 55, 56.
3 & 4 Will. IV, c. 85, ss. 40, 56, 57.
5
7
## p. 5 (#35) ###############################################
LEGAL ANOMALIES
5
The draft provisions regarding legislation were more successful in
procuring parliamentary adoption. At this time each of the three
presidencies enjoyed equal legislative powers; though the governor-
general possessed a legal right of veto over the legislation of the
subordinate governments, it had in fact been little exercised. 1 Thus
had come into existence three series of regulations, as these enactments
were called, frequently ill-drawn, for they had been drafted by
inexperienced persons with little skilled advice; frequently conflicting,.
in some cases as a result of varying conditions, but in others merely
by accident; and in all cases enforceable only in the Company's courts
because they had never been submitted to and registered by the king's
courts. Besides these were the uncertain bodies of Muslim and Hindu
law, uncertain because of a variety of texts and interpretations, and
still more uncertain because of the varying application which they
received in the courts themselves. Lastly came English statute and
common law and equity, applied by the king's courts. These con-
flicting series of laws were enforceable by two different and generally
hostile judicatures, with ill-defined jurisdictions. In general the king's
courts exercised jurisdiction within the limits of the presidency towns
of Calcutta, Bombay and Madras, while the Company's courts
exercised jurisdiction over the dependent territories. But apart from
this territorial jurisdiction, the king's courts possessed a personal
jurisdiction over British-born subjects, in some cases involving juris-
diction over Indian-born subjects. This particular aspect of the
matter was clearly destined to be of growing importance. The doors
of India, as the directors said, were to be "unsealed for the first time
to British subjects of European birth”. Englishmen, who had till then
resided in India on sufferance, were to acquire a right to reside and
even to acquire land there. Since the Company's trade was to cease,
a large number of merchants and traders were expected to settle in
India to take advantage of the change. It was evidently inexpedient
that the two classes of subjects, Indian and English, should continue
to live under separate laws administered by separate courts or that the
latter when accused of wronging the former, or accusing the former
of wrong, should be able to insist on the issue being tried by a strange,
unsuitable and probably very distant court.
For these various and cogent reasons it was resolved to modify the
legislative authority in India, to extend its legislative competence,
and to prepare for a general reform of the judicial system. The
subordinate governments, it was felt, should lose their legislative
authority altogether-a measure which appears the more natural
when it is remembered that it was also intended at first to abolish
their councils. The existence of three legislatures had added much to
the complexity of the legal system, the simplification of which would
1 Hansard, 3rd Ser. XVUI, 727.
• Dispatch to the Guvernment of India, 10 December, 1834 (Ilbert, ist ed. Appendix).
## p. 6 (#36) ###############################################
6
LEGISLATION AND SUPERIOR GOVERNMENTS
be aided by concentrating all legislative authority in a single body.
This change was also supported by the proposed extension of power,
which parliament would concede least unreadily to the governor-
general and his council. It was therefore decided to transfer all power
of making laws to them; and it was thought that the need of special
laws to suit local peculiarities would be sufficiently met by empowering
the presidency governments to submit to the governor-general and
council draft laws to be enacted or not as might scem best.
The powers granted to the governor-general and council were much
wider than any till then entrusted to an Indian legislature. They
could make laws to repeal, amend or alter
any laws or regulations whatever now in force or hereafter to be in force in the said
territories. . . , and to make laws and regulations for all persons, whether British
or native, foreigners or others, and for all courts of justice, whether established by
His Majesty's charters or otherwise, and the jurisdiction thereof,
except that they could not modify the new act, the mutiny act, any
future act of parliament relating to India, or the sovereignty of the
crown. But apart from this limitation all their acts should possess
“the same force and effect” as any act of parliament, and “shall be
taken notice of by all courts of justice whatsoever within the said
territories". 2
These were full powers for a dependent legislature. Their particular
importance lay, however, in one main point. Till 1833 no Indian
legislation had the least effect in the Supreme Courts. It is true that
provision had been made by which an Indian regulation would
become binding on those courts once it had been registered by them.
But such registration had lain wholly within the pleasure of the courts
themselves; and the Indian governments had steadily refused to
recognise the veto in effect entrusted to the courts by refusing to
submit their acts for registration. Their legislation had thus been
binding on Indian residents outside the presidency towns and on the
Company's courts established in the Mufassal, but not binding on
either Indian or European residents at government headquarters or
the king's courts established there. Now it became equally binding
on all classes of inhabitants, whatever their place of residence, and
on all courts of law, whatever the authority by which they were
constituted. In order to complete its powers the new legislature was
authorised to modify or define the jurisdiction even of courts esta-
blished by royal charter, though the latter might not be abolished
without the previous sanction of the home authorities. 3
One object of the earlier statutes requiring regulations to be
registered in the Supreme Courts before becoming enforceable in the
presidency towns had been to secure the criticism of the respective
benches before the laws adopted by the Company's governments
3 & Will. 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.
