Trade with India

on the 15th may,^* Mr. Wolryche Whitmore moved for a Committee to inquire into the trade between Great Britain and India. Mr. Whitmore rested his demand for investigation upon a specification of grievances; among which he insisted chiefly upon the inequality of the duties on East India and on West India produce; the impediments which, as he affirmed, the East India Company were accused of throwing in the way of private merchants trading to the East Indies; and lastly, the commercial restrictions, which he seemed to suppose existed at Singapore, and other “emporia in the Eastern Archipelago.”¹

On the first of these topics, the discriminating duties on East India produce, our opinion has been already given. The subject was plainly treated, in the course of the debate, by Mr. William Smith; who placed the advocates of these duties in a dilemma from which they cannot possibly escape.² If the duties were equalized, the taxed commodities either could, or could not, be obtained at less cost from the East Indies than from the West. If they could, the discriminating duties are a tax on the people of England, to enable the West Indians to carry on what is, or would otherwise be, a losing business, by means of slave labour. If not, the duties are meant for no purpose except to ward off a danger which does not exist: they ought, therefore, to be repealed, were it for no other reason but because animosities are engendered, and valuable time wasted, by the agitation of the question from year to year.

The complaints of Mr. Whitmore against the East India Company, it is impossible to decide upon without a full inquiry: and if they be persevered in, it is highly proper that they should be subjected to investigation by any committee which may hereafter be appointed to inquire into the East India trade. Judging, however, from what Mr. Whitmore hinted rather than stated concerning the nature Edition: current; Page: [4] of the imputations, we do not imagine them to be of a very serious character. “The Company secured to itself, in some cases, the right of preemption. Their resident agents advanced money to the growers, and then shut up the produce, so as to answer the demands of the Company.”³ This is the sum total of Mr. Whitmore’s complaints: but surely if, as would appear from this statement, the Company actually advances to the producers the capital with which they carry on the production, it is entitled to privileges somewhat greater than those of a simple purchaser; and there is nothing unfair in the transaction, unless it can be shewn, that, by an abuse of the powers of government, the Company extorts from the producers more favourable terms than the private merchants could obtain, for the same equivalent, by the competition of the market. This, however, Mr. Whitmore does not affirm.

The debate chiefly turned upon the question of the discriminating duties; on which subject Mr. Huskisson, though he opposed the motion, expressed his entire concurrence in the general principles laid down by Mr. Whitmore, and declared that he had nothing more at heart than to promote them, “so far as they could be fairly and justly brought into operation.”⁴ This, we believe, is a profession which few men would have any objection to make on any subject. To attach to it any meaning, it would be necessary that we should have the means of knowing how far the speaker’s ideas of fairness and justice extend. Mr. Huskisson, however, took particular care to say nothing which should give the remotest indication of the course he intended to pursue. His speech was according to the old approved parliamentary tactics. Fair words to all parties, pledges to none: impossibility of laying down any principles which could be inflexibly adhered to: necessity of delay; not a short delay, to give time for consideration, but a delay of several years—delay until the House should take into consideration the renewal of the East India Company’s charter, which expires, we believe, in 1834.⁵ It was impossible to shew one single point of contact or connexion between the question of the East India Company’s charter, and that of the duties on East India produce. If the duties on East India sugar are a grievance, they are a grievance whether the King or the Company is to have the government of India, and whether the Company or private merchants are to be, after 1834, the importers of tea from Canton. Yet, so truly parliamentary is the policy of postponing the consideration of whatever appears likely to give trouble or annoyance; so deeply rooted in the hearts of our public men is the desire to put off, till the latest period possible, the evil day when the partial interests of any powerful body are to be interfered with; Edition: current; Page: [5] that almost every member who followed joined with Mr. Huskisson in begging Mr. Whitmore to withdraw his motion, and “leave the matter to Government,”⁶ to be by them postponed until the time comes when attention will be distracted by so many other still more important topics connected with India, that whatever the Government may be pleased to ordain on the subject will pass, comparatively speaking, unchallenged and undiscussed.

The reasons stated for the postponement were far from sufficient to account for the apparent universality of the desire for it. There were “experiments already in progress,”⁷ of which the result was not yet apparent. We are aware of none, the result of which, if known, could have the slightest influence upon the merits of this question. The inquiry would “excite and inflame those anxious alarms,” which Mr. Huskisson said it was his “earnest wish to allay.”⁸ This argument, though it is perfectly en règle, being invariably brought forward as a reason against discussion whenever discussion is inconvenient, is yet such a one as ought never to be heard from the lips of an enlightened statesman. Common sense, if it were listened to, would dictate a directly opposite conclusion. If there are groundless alarms, by what means can they be so effectually dispelled as by laying open promptly and completely the real state of the case? As a general proposition, it will scarcely, we presume, be maintained, that ignorance or misinformation is less likely to produce groundless alarms than correct information; and if it is on the sugar question in particular that correct information is expected to prove so alarming, the reason must be one which it would not answer Mr. Huskisson’s purpose to tell; that, if all the facts were known, so gross and glaring would the injustice appear which is done to the public of Great Britain, for the sake of the planters, that public indignation would at once compel a reform of the system. The absurdity of this plea is the more obvious, because the West Indians, and Mr. Huskisson along with them, profess to believe that the East Indies, even if the duties were equalized, could not supply sugar on equally advantageous terms with the West. Surely, if this be true, an inquiry, the result of which would be to establish this fact, would allay apprehensions, not excite them. True it is that the West Indians, by their strenuous opposition to the removal of these unpopular duties, an opposition which would be without a motive if they themselves believed what they say, prove sufficiently their own insincerity. But every one will acquit Mr. Huskisson of such paltry artifices. The true reason, as we suspect, which would render the granting of a committee a source of real alarm to the planters, is one which Mr. Huskisson Edition: current; Page: [6] could not decently state, however strongly he may have felt it. This reason is simple;—it would convince them that Government was in earnest. At present, they may flatter themselves, with some appearance of justice, that it is not.

It well deserves attention, that such flimsy excuses, when they were excuses for delay, should have been so completely satisfactory to the House. But any reason is good enough, when the conclusion accords with our inclinations: any ostensible motive will suffice, when the course which it recommends falls in with the predominant habit of our minds.

In answer to what had been observed by Mr. Whitmore on the subject of Singapore, and the other “emporia in the Eastern Archipelago,”⁹ Mr. Huskisson stated, that “no tonnage, or duty of any description,”¹⁰ was now demanded at those ports: and the fact is, that Singapore has always been a free port, and that the duties which were formerly levied at Penang and Malacca have recently been discontinued. Mr. Huskisson viewed this circumstance “with great satisfaction, because it was the result of those principles of policy which he had recommended.”¹¹ Were we, also, convinced that the measure was borne out by the principles to which Mr. Huskisson alluded, it could not but have our entire approbation. We are afraid, however, that, instead of being a result of those principles, it is in direct opposition to them; and that the ministry, which recommended or sanctioned such a measure, have been misled by names.

The principle, which Mr. Huskisson supposes to have dictated this course, is the principle of free trade; and if we look to the words alone, free trade undoubtedly implies exemption from all taxes or duties whatsoever. But a principle, when it is expressed in two words, is very seldom expressed accurately; some necessary condition or qualification is almost always omitted: and when we are satisfied with adhering to the terms of a proposition, and are not careful to keep always in view the grounds of it, we are perpetually in danger of acting in contradiction to the very principle which we imagine to be directing our conduct.

The principle of free trade is the principle of leaving undisturbed the natural distribution of capital; and the foundation of it is the observed and well-established fact, that capital, when left to itself, under the guidance of individual interest, always finds out the channels in which, under the existing circumstances, and in the existing state of knowledge, the greatest produce can be obtained at the least expense to the community. When this principle is clearly apprehended, it is evident at once that free trade does not require that the different employments of capital shall be subject to no taxation, but only that, if taxed at all, they shall be taxed equally, so that one employment may not be encouraged more than another.

If there are two modes of obtaining the same commodity, and both are Edition: current; Page: [7] taxed,—taxed moreover to an exactly equal amount,—the commodity will naturally be obtained in the cheaper of the modes; but if a minister awkwardly attempts to introduce free trade, by removing the tax from the more expensive mode of obtaining the article, while the cheaper mode remains taxed, as before, the commodity will probably be obtained in the more expensive mode, and a quantity, greater or smaller, of expense and labour, will be uselessly thrown away.

This is precisely what has been done in the Eastern seas. The ports of Continental India, particularly Calcutta and Bombay, have hitherto been the entrepôts of a very extensive and valuable commerce; but at these places the port charges still continue, while they are now abolished in the Straits of Malacca. The unavoidable consequence will be, that many ships, for unloading which the situation of Bombay or Calcutta is more convenient, will resort to Penang or Singapore in order to save the duties, at the cost of a longer, a more hazardous, or a more expensive voyage. The whole of what is thus expended is sheer loss to the nation and to the world; and a loss, too, of that very kind, which it is the particular object of the principle of free trade to prevent; loss, by substituting a less advantageous disposition of capital for a more advantageous one. It is as if all duties and port charges were to be abrogated in London, while they continued to be levied at Bristol and Liverpool. No doubt, this would give to the commerce of London a most flourishing appearance, since a much larger number of ships, from America and the West Indies, would resort to London, in order to avoid the duties; but it is obvious, that the additional expense of the more circuitous voyage would be a clear and uncompensated loss to the community.

But even if the remission of duties, instead of being partial, had been universal, extending to all India, or even to all the world; we should be prepared to maintain, that the measure was a violation of that principle of which the doctrine of free trade is a consequence,—the principle of not disturbing the natural arrangement of capital. That principle, we contend, absolutely requires that all expenses which are incurred for commerce should be defrayed by commerce. The natural distribution of capital is equally disturbed, when any of its employments is charged with factitious expenses, or when it is relieved from its own.

The settlements of Singapore, Penang, and Malacca, were established, and are maintained, solely for the convenience of commerce; and none of them possesses any resources, independently of commerce, at all adequate to the liquidation of its own expense. The question now is, whether this expense, which must be borne by somebody, shall be borne by those who alone benefit by it, and for whose sake it was incurred; or be charged upon the community in general of Great Britain or India. We maintain that the former, both on the principles of justice and on those of political economy, is the advisable arrangement.

Free trade implies freedom not from restrictions only, but from all partial encouragement. Why is it that Government never thinks of erecting, at its own charge, buildings or machinery for any branch of manufacture—the cotton Edition: current; Page: [8] manufacture, for example? Not because the removal of any source of expense is not in itself advantageous; but because, when it can be removed from one class only by being transferred to another, there is no good reason for giving a bounty to the consumers of cotton, at the expense of the public in general, or any other portion of it.

If, instead of buildings, Government were to supply means of conveyance; if they were to abolish all tolls, and to supply waggons and other vehicles, free of charge, for carrying from place to place all descriptions of goods, could they here plead free trade in their defence? or rather would not such a measure be a direct infringement of the principle on which free trade is founded? The consumers of goods brought from a distance, have no claim to receive a premium at the expense of those who consume goods produced in their immediate vicinity; and as such a system would inevitably cause goods to be brought from a distance, which could be obtained cheaper by being produced at hand, the excess of expense, which would not be taken away, but only be laid upon other shoulders than those of the consumer, would be a clear loss to the community.

To take another illustration still more exactly appropriate to the case in hand: suppose that Government were to purchase the London Docks, and lay them open, with the warehouses adjoining, to all importing merchants, free of charge—would this be a proper application of the public money? Surely not. Let the expense of procuring commodities be borne by the consumers of those commodities: they will then be the more frugal in their consumption; and let not the whole public be taxed to afford, without necessity, a separate advantage to a part.

Such precisely is the case of Singapore, Penang, and Malacca; but with this great aggravation, that as each of those settlements is confessedly only an entrepôt, the parties for whose benefit British money is expended, are, for the most part, not even British subjects. It may be true that the merchants, who resort thither, are generally subjects of Great Britain; but the system which exempts them from all share in the expense incurred specifically for their convenience, is a boon, not to them, but to the consumers of the goods, of which they are only the carriers. They are benefitted indeed, but it is only by that extension of business which proceeds from a diminution of price, and by being freed from the trouble and annoyance attendant on a custom-house. Whatever tax might be imposed upon them, would be ultimately paid by their customers; the people on the east side of the Gulf of Malacca, and those among the people on the west side, who consume goods brought from the east. If the duty were one or two per cent, (or whatever else might be a fair equivalent for the protection given, and the wharfs and warehouses afforded,) one or two per cent would be added to the price of European and Indian goods in the Eastern Archipelago, and one or two per cent to that of the goods carried from thence to Europe and India. The effect, therefore, of this mistaken application of the principle of free trade, is merely to occasion to the purchasers of such goods a saving of that amount. So far as concerns the goods which pass to the Edition: current; Page: [9] east of the Gulf, being exactly one half of all which touch at the settlements, the saving is purely to the nations of Eastern Asia. On the remaining half, our countrymen merely share the advantage with all other nations trading to the east.

We have entered into a somewhat minute examination of this question, not so much for the importance of the subject immediately before us, but rather because we were anxious to clear up the misunderstanding with respect to the scope and effect of the principle of free trade, by which Mr. Huskisson seems, in this instance, to have been misled. We earnestly deprecate the converting any phrase, however unobjectionable in itself, into a catch-word, because it is sure in that case to find its way into the mouths of many who do not understand, or do not attend to its accurate meaning. “Equality,” in a neighbouring nation, and “No Popery” in our own, originally meant nothing but what was innocent and laudable. If the inventors of these expressions had taken for their motto a principle instead of an abbreviation, the one phrase could never have been made a handle wherewith to exterminate men for being unequal to their neighbours, by superiority in riches or talents; nor the other a ground for persecuting the men, whose opinions only it was originally intended to condemn. Such disastrous effects are not likely to arise from any abuse of the terms “Free Trade;” but it is necessary, when that phrase is made use of, always to bear in mind that the real principle of legislation is that of allowing private interest to regulate wholly the disposition of private capital, and avoiding to give any factitious advantage to one employment of it over another. It is by this test alone that every proposition, be its object to free trade from restrictions, or to impose them, must ultimately be tried.

Minute on the Black Act

the petitioners pray that cases of marriage, divorce, and inheritance or succession, respecting Englishmen, should be removed altogether from the Company’s Courts, and that in all other civil cases (viz. debt, contract or trespass) wherein Englishmen are affected either as plaintiffs or defendants, an appeal should lie to the Sudder Adawlut or to the Supreme Court, at the option of the appellant.

The first of these prayers might without impropriety be complied with if the English inhabitants really wish it; because the marriages and divorces of the English, and the succession to their property, cannot in any way affect the interests or rights of the natives. On these matters therefore I, at least, see no reason why the appeal should not lie to the Supreme Court, or even, if the English wish it, why the Supreme Court should not have sole cognizance, until the Indian Code is completed,¹ which is all that the petitioners require.

But on the other question the interests and rights of the natives are most seriously at stake. When an Englishman in India, beyond the bounds of the Presidency, borrows or lends, or enters into contracts of any other kind with natives, he must be understood to do so according to the native laws, the only ones which are known to the parties he contracts with. The same reasoning applies to those cases of civil injury known by the name of trespass. An Englishman has no right to go up the country and say to the natives, I will regulate my transactions with you by the laws of my own country, and if you think I have injured you, you shall not have the redress your own laws would give you, but shall be satisfied with that given by laws you know nothing about. If an Englishman goes there for his own purposes, it is to be expected from him that he will make himself acquainted with the institutions and customs of the country: but it is not to be expected of the natives that they should, previous to dealing with him, make themselves acquainted with his laws and institutions: and their passive character and dread of the name of an Englishman make it necessary to give facilities instead of interposing difficulties to their resisting fraud or oppression when attempted to be practised on them by the more powerful race.

But if it be admitted that the English must be governed by the same laws as the natives, it is absurd to say that the Court which adjudicates their causes in the last Edition: current; Page: [14] resort, shall be the Supreme Court, which administers a totally different system of law, and from which an Englishman might again drag the native he had injured before the Privy Council.

Penal Code for India

it has been for some time, we suspect, the opinion of all who have paid much attention to the vexata quaestio of codification, that, from a question of Theory, it has now passed into one of Practice. The possibility of making a code (for the possibility only, and not the advantage, was contested) has long since been as well proved as words can prove it, and can only be made more evident by actually trying to do that which, until done, the world will never believe can be done, at least well enough to be worth doing. And such, in truth, has been the history of most great improvements in human affairs. That civilization should exist without slavery, or a great state without monarchical government, were not generally believed possible, until seen realized. The multitude, justly distrustful of their own capacity to decide upon the evidence of general reasoning, turn a deaf ear to all demonstrations of the practicability of any great thing hitherto undone. And among such things the reduction of the whole laws of any country into a set of written enactments proceeding from the direct authority of the legislature, must as yet be considered. Of the points usually insisted upon by the later opponents of codification, the one perhaps in which they have been the most successful is in showing that the Code Napoleon¹ (though a prodigious improvement upon the old French law) is no code, in the genuine sense of the word: for as it does not define the technical terms it makes use of, but leaves their meaning and extent to be determined by the decisions of the courts of justice, a real knowledge of the law can only be obtained, as in England, by a study of precedents and cases; and it has even been found worth while to reprint large editions of the old law books,² for the light which they throw upon the principles on which the judges proceed in their interpretation of the so-called code. To frame a body of statute law which should need no such adventitious aid; which should contain in itself all the law that is necessary, all that the judge requires to enable him to execute the will of the legislator when he knows the facts of the particular case; this would be to construct a code. But this, so far as Edition: current; Page: [20] we know, has never been the object aimed at in any of the modern European attempts at codification, anterior to the one now before us.

It is because the present is an attempt to attain that object, and (so far as we can yet venture to judge) an eminently successful one, that we are anxious to invite to it the attention and the criticism of jurists, and of persons practically conversant with the interpretation of language. We believe that this proposed Penal Code has solved the problem; that it has actually done, so far as the penal branch of law is concerned, that which was denied to be possible, namely, to frame adequate definitions of offences, expressed in general language: definitions sufficiently accurate, to leave no doubt that complete accuracy is attainable. Doubtless, as there are imperfections in all works, and especially in all such works, examination will not fail to detect, or experience disclose, cases needful to be provided for, which the framers of these definitions have overlooked; but the emendations necessary to include such cases, can be made without disarranging the plan or disturbing the symmetry of the code; and that is enough.

The Indian Law Commissioners are a body of five persons, appointed under the authority of the last Charter Act to frame a code of law for the inhabitants of India.³ The propriety of such a measure at the particular juncture, appears to have been suggested by the liberty then first granted to Englishmen, for settling in India without license from the East India Company. The great influx of Europeans which was expected to ensue, impressed upon the framers of the Charter Act a sense of the necessity of so revising the laws and tribunals of India, as on the one hand to leave Englishmen no just ground of complaint against the institutions of the country in which they might come to live, and on the other to afford effectual protection to the natives against their encroachments. The anomaly of exempting Europeans from the laws and tribunals of the country, and giving them separate ones of their own, was utterly indefensible in principle; it had been found productive of the most serious oppression and denial of justice to the natives, in cases affecting Europeans, even under the more limited access to the country which the latter had hitherto enjoyed; and now, when the government was no longer to have either the privilege of prohibiting the immigration of persons objectionable in point of character, or that of supplying the defect of legal control by an arbitrary power of banishment, it became an imperative duty to withdrawn all legal immunities from Europeans; to subject them to the only tribunals accessible to the people, and (so far as possible) to the only laws which those tribunals were, or could be made, competent to administer.

Such, therefore, was the more especial and peculiar motive which led to the creation of this Commission of codification. To this inducement, however, we believe may be added, without any undue compliment to the parties concerned, a sense of the importance of the object in itself, and of the value of any experiment which might tend to accelerate its successful accomplishment. We are the more inclined to ascribe this honourable motive to the authors of the measure, inasmuch as Mr. Charles Hay Cameron, the only gentleman who was sent from England specifically as a member of the Commission (and whose remarkable qualifications for such a post, are well known to all who have any knowledge of him and of the subject) was recommended to the choice of the Court of Directors and of the ministry, by the complete reform which he, as a Commissioner of Inquiry, had advised, and her Majesty’s Government effected, in the courts of justice and judicial procedure of Ceylon.⁴ Alone of all known countries, that British colony now actually enjoys a judicial system constructed on the best conceptions of philosophic jurists—a system in which, without any servile deference for the authority of Bentham, the principal improvements made in the theory of the subject by that great man have been, with due consideration of local circumstances, adopted and carried into practice.⁵ The system is understood to have worked admirably during the few years it has been in operation; and the introduction of it does honour to the Colonial Office. The operations of the Indian Law Commission are adding a second instance in support of a prediction once made, that the foreign dependencies of the empire will enjoy the benefits of many reforms, long before the much more compact masses of private interest which oppose themselves to such changes at home, will permit the mother country to share in them.

It was judiciously considered fitting that, of the five Commissioners who were appointed to give laws to India, three should be Company’s servants, of tried abilities and the requisite local knowledge; while the remaining two should be persons sent from England, and conversant with the general principles of law-making. Of these two Mr. Cameron was one; the other was Mr. Macaulay, who, having been appointed a member of the Legislative Council of India, assumed, in addition to his rather scanty functions as such, that of President of the Law Commission. Mr. Cameron’s health having prevented him from taking part in the later proceedings of the Commission, the letter to the Governor-General in Edition: current; Page: [22] Council, which accompanies the project of a penal code, is signed only by the other four members;⁶ and a greater share of the labour of completion than was at first anticipated has devolved upon the accomplished President of the Commission, whose style, pruned of whatever would be unsuitable to the character of the work in hand, is distinctly visible in every part of the volume before us, in which it was possible that style should be discernible.

It is not in its particular application to the circumstances of India, but as a specimen of codification in general, that this proposed body of penal law has claims on the attention of the English reader. We shall therefore omit all consideration of the appropriateness of the punishments, whether as to quality or quantity, and shall confine our notice to the definitions of offences, and the nomenclature and expression of the code at large.

The first four chapters are of a general kind, comprising all those explanations and directions which may be given once for all;⁷ and which, in an unsystematic mass of enactments like the English statute book, are either said over again in every statute (sometimes even in every clause of every statute) or left unsaid altogether. Such, for instance, are these—“The pronoun he is used of any person, whether male or female.” “The word man denotes a male human being of any age; the word woman denotes a female human being of any age.” “The words to do a thing denote omissions as well as acts.” “The word act denotes as well a series of acts as a single act; the word omission denotes as well a series of omissions as a single omission.”⁸ These simple instances, with many of a more complicated character, compose the first chapter, entitled “General Explanations.” The remainder of the generalities are comprised in the three succeeding chapters—“Of Punishments;” “General Exceptions;” and “Of Abetment.” In these chapters some, though not many terms, which require definition, are left undefined, the definition in those instances properly belonging not to the penal, but to the civil code, which has not yet been commenced; and in general it may be remarked, that since all offences are such by virtue of their being violations of rights, the attempt to define offences until rights have been defined (which is the business of the civil code), must be attended with peculiar difficulties; but this code has demonstrated the possibility of surmounting these difficulties in a far greater degree than could have been anticipated. Under the chapter of “General Exceptions” we fear that offences by culpable negligence would in many cases escape punishment; but culpable negligence, when productive of actual mischief, is itself, in the more serious cases, made a distinct offence by the subsequent chapters of the code; and Edition: current; Page: [23] in minor cases it may be presumed to be the opinion of the Commissioners that liability to a civil action for damages is the appropriate remedy.

The remaining chapters (chaps. v to xxvi) are those which treat of the separate classes of offences; and the best mode of exhibiting the peculiarities and the general execution of the code will be to extract at length the first section of one of the most important of its chapters—the section “Of Offences affecting Life.”

294. Whoever does any act, or omits what he is legally bound to do, with the intention of thereby causing, or with the knowledge that he is likely thereby to cause, the death of any person, and does by such act or omission cause the death of any person, is said to commit the offence of “Voluntary culpable homicide.”

The East India Company’s Charter

what connexion have you had with the Government of India? I am one of the assistants to the Examiner of Indian Correspondence, in whose office the greater part of the correspondence with India relating to the Government is conducted.

For what length of time have you been in that office? Since the year 1823, and nearly the whole of that time in the Correspondence Department; in fact, I may say the whole of it.

Have you been exclusively in that department, or in others also? Exclusively in that department.

Have we reason, do you think, on the whole, to feel satisfied with the general working of the Home Government of India? The present constitution of the Indian Government, considering the great difficulties of the case, seems to me to have worked very satisfactorily.

Will you state more specifically the causes to which you attribute the satisfactory working of the Government? I conceive that there are several causes; probably the most important is, that the whole Government of India is carried on in writing. All the orders given, and all the acts of the executive officers, are reported in writing, and the whole of the original correspondence is sent to the Home Government; so that there is no single act done in India, the whole of the reasons for which are not placed on record. This appears to me a greater security for good government than exists in almost any other government in the world, because no other probably has a system of recordation so complete.

In those records do you find the records of opinions? To a very great extent. If the local officer and the Government differ in opinion, or if the opinions of the different members of the Government differ from one another, the reasons on both sides, and the discussions that take place, are put in writing, and reported to the Home Government, who are thus in possession of all the materials of knowledge that the local authorities can supply.

What do you think would be the consequence of Parliament interfering more frequently and more extensively in the government of India? I think that many bad, and few good consequences would result. The public opinion of one country is scarcely any security for the good government of another. The people of one country, whether represented by the public authorities of this country, or by the nation itself, cannot have the same acquaintance with the circumstances and interests of the other country as they may have with their own. The great security Edition: current; Page: [34] for the good government of any country is an enlightened public opinion; but an unenlightened public opinion is no security for good government. The people of England are unacquainted, or very ill acquainted, with the people and the circumstances of India, and feel so little interest in them, that I apprehend the influence of public opinion in this country on the Government of India is of very little value, because there are very few cases in which public opinion is called into exercise; and when it is so, it is usually from impulses derived from the interests of Europeans connected with India, rather than from the interests of the people of India itself.

Supposing that appeals were permitted freely to the English Parliament from the decisions of the Governor-general of India, in cases of resumption, such as have taken place at different times, do you think that that would tend greatly to impair the power of the Government of India? I think that anything which causes the people of India to look beyond the Government of India to any authority here, of which they have no knowledge, and concerning which they have most indefinite ideas, would tend to weaken the local Government. Of course that inconvenience must be submitted to in so far as it has any tendency to increase the security for good government; but the real security for the good government of India depends, as it seems to me, upon a careful review of the Acts of the local Government, grounded on the transmission of all the recorded proceedings to this country. The proceedings are subjected to a very rigid examination, not, of course, as to all their details, but as to their general principles, and the spirit in which those general principles are applied to particular cases; this seems to me the only kind of appeal that is of any considerable value in regard to the government of a country at such a distance, and in the peculiar circumstances of India.

Will you state the successive checks which operated upon the occasion of the deposition of the Rajah of Sattara?¹ There was first the decision of the Bombay Government; and then that decision could not take effect without the concurrence of the Government of India, which was, therefore, the first check or appeal, as it may be called. In the next place, that decision was subject to reversal by the joint action of the Court of Directors and the Board of Control; and, finally, it was open to any Member of either House of Parliament to bring forward a Motion, which, if it had been effectual, might have led to a Parliamentary inquiry, or eventually to a reversal of the Act.

And to a certain extent there might have been the interposition of the Court of Proprietors? The Court of Proprietors would have had no power of reversing what had been done. They have the power of holding a public discussion, which, as a means of publicity, is not without value.

In regard to the action on that occasion of the Government of Bombay, was there not a minute recorded of the Governor, and were there not also minutes recorded of each member of Council? There were. In the first place, there was the report of the local officer, the Resident at Sattara; this report was then the subject of discussion in the Council, and the Governor and each member of Council recorded their opinion. When they, either unanimously or by a majority, had formed their opinion, they communicated it in a despatch to the Governor-general in Council, who issued the final orders—final as far as India was concerned.

When this despatch, accompanied by the recorded minutes, was forwarded to the Government of India, were there not further minutes written by the Governor-general and the members of Council, each giving his opinion separately upon the subject? Whether that was so in that particular case, I am not certain, but I believe so. In cases of importance it almost invariably happens that the opinion of each member of Council is recorded separately.

With his reasons? With his reasons.

All those reports were then forwarded to the Court of Directors? Yes.

And the subject was discussed by the Court of Directors? Yes.

Were there further minutes entered upon the journals of the Court of Directors upon the same subject? It is not usual to enter on the records of the Court any minutes of opinions, except dissents.² After a resolution is passed, any member of the Court who dissents from the resolution, if he thinks the matter of sufficient importance, records his dissent, accompanied with reasons, and those are, as a matter of course, communicated to the Board of Control.

Are those dissents communicated to the general Court, or to the Committee? The dissents are recorded on the minutes of the Court, and have nothing to do with any Committee.

The expression of all those opinions was submitted to the Board of Control before the ultimate decision was taken upon the subject? Yes; it does occasionally, but seldom, happen, that the ultimate decision is taken before the dissent has been sent to the Board.

It is only in cases where the question has been so repeatedly discussed, that it is thought hardly necessary to send up the dissents; but in the first instance, all the dissents are sent up? The dissents are sent to the Board as soon as they are copied; but cases have happened, though not, I believe, in matters of importance, when the despatch has been sent back approved by the Board before the dissent reached Edition: current; Page: [36] them: it is only in those cases that the Board has not had the advantage of the dissents before its final decision.

Any member of the Court of Proprietors moreover may, if he thinks fit, raise a question for public discussion, and appeal to the public in England upon the subject? Any nine members may sign a requisition for a special meeting of the Court of Proprietors, or any one proprietor may, at a quarterly meeting, after notice, make a motion on any matter connected with Indian affairs.

You think that those successive checks operate more beneficially for the protection of the natives of India than any constant interference of Parliament on their behalf? No one will deny that it is necessary that Parliament should be open to appeals on all subjects connected with the government of any part of the British Empire; but, so far as my experience goes, I should say that the security for the good government of India derived from discussions in Parliament is far short of that derived from the habitual examination of all papers of any importance by persons specially devoted to that object.

Persons who have no sinister interest? It is next to impossible to form in one country an organ of government for another which shall have a strong interest in good government; but if that cannot be done, the next best thing is, to form a body with the least possible interest in bad government; and I conceive that the present governing bodies in this country for the affairs of India have as little sinister interest of any kind as any government in the world.

Have the natives of India shown a disposition to employ agents in this country for the prosecutions of appeals against the decisions of the Governor-general? Yes; and I think with increasing frequency.

If the opinion became prevalent in India that changes of decision on matters of individual and immediate interest might be readily produced by such appeals to Parliament, do you think that they would become very frequent? Those best acquainted with India say, that the natives are exceedingly averse to giving up any pretension whatever, until they have tried every resource within their reach for getting a hostile decision reversed. I think if it were the habit of the people of India to look to a revision of their cases in England, as a thing which could be procured by sending vakeels, or delegates, here, they would very frequently do so, incurring much useless expense, and often ultimate disappointment. But the proper remedy is, that the Home Government should so act as to convince the natives of India that if their case is just, they will have full justice done to them, on a review of the papers, without sending any one here to represent them; and that if their case is unjust, however many people they may send, it will do them no good.

Would money be wanting on their part to prosecute such appeals? There are many natives who have ample means for the purpose.

Can you suggest any improvements in the present Home Government of India? It is difficult to suggest alterations in a system of Government, of which the good working, so far as it has worked well, could not have been predicted beforehand. The present constitution of the Government of India has been very much the Edition: current; Page: [37] growth of accident, and has worked well, in consequence of things which were not foreseen, and were not in the contemplation of those who established it in a great measure, from causes not provided for in the received theories of government. So much of the good working of the present Government being the result of accident, accident would probably have a great share in determining the operation of any new system which might be substituted for it; but it would be necessary to keep in view in any alteration the circumstances, so far as they can be assigned, which have been the causes of the beneficial working hitherto. Among the first of those seems to me to be, that those who are sent to administer the affairs of India, are not sent to any particular appointment; they go out merely as candidates; they go out when young, and go through the necessary course of preparation in subordinate functions before they can arrive at the higher ones. That seems to me the first essential requisite for the good government of India. A second great advantage of the present system is, that those who are sent out as candidates to rise by degrees to the higher offices, are generally unconnected with the influential classes in this country, and out of the range of Parliamentary influence. The consequence is, that those who have the disposal of offices in India have little or no motive to put unfit persons into important situations, or to permit unjustifiable acts to be done by them. Any change in the government of India which would bring the appointment to Indian offices into the ordinary channels of political or Parliamentary influence would, I think, take away one of the chief causes of whatever is beneficial in the present working of the Government of India.

Would the sale of such appointments, in your opinion, operate injuriously? It would probably bring a much greater proportion of them than at present into the channels in which political influence flows in this country, and in so far as it did so I think it would deteriorate the Indian Government. At present, the civil servants, appointed very young, and by individual members of the Court, do not usually become eligible for any very high appointment during the time that the Directors who appointed them can be supposed to have any influence over their promotion. Partly from this circumstance, and partly because the person who gives the appointment is only one of 24, it is my belief there is hardly any government existing in which there is so little personal jobbing as in the Government of India.

Is there not a tendency, from the patronage being administered from private and personal motives, to the service of India becoming a sort of caste of particular families and particular connexions? I should say not more than is in the nature of the case, and not to such an extent as to be an evil. It will happen under any system that persons who have served in India will look by preference to Indian appointments for their sons; and they would under any system be likely to have readier access to Indian than to any other appointments. In whatever manner the Home Government might be constituted, it would doubtless be partly composed of persons who have served in India, and, if so, the patronage in their gift would flow in the same channels as at present.

Is it not generally supposed that the patronage in the hands of the Directors is Edition: current; Page: [38] made use of to obtain elections to the Court? I have heard of such things; I do not know how far that is the case. I have no doubt the directors bestow their patronage on those who have served them in that, or any other way. But the main point appears to me to be, that neither a Director, nor any one else connected with the Home Government, has it in his power to appoint an unfit person to any situation in India: the only thing he can do is, to send out a candidate, who will ultimately obtain an important situation if he is considered fit for it by the local Government; but since the appointment here is only the appointment of a candidate, who is to go to India, and make himself fit for an important situation before he can receive it, the bestowing of this patronage from private motives is not attended with the evils which would arise from making appointments to office on private grounds.

Has not the influence of the proprietors, in the bestowal of the patronage, the effect of distributing the patronage more largely and more widely among the community? No doubt it has; the general course in which the patronage flows is among the middle classes.

What do you mean by the middle classes? I mean, in the present case, by the middle classes, the classes unconnected with politics, or with the two Houses of Parliament.

It has been frequently observed that a very large proportion of the servants of the East India Company have been selected from that part of the kingdom north of the Tweed; is it your opinion that such is the case, or not? It was the case at one time, from accidental circumstances. One of the causes was said to be, that the first Lord Melville was so long President of the Board of Control;³ at present I am not aware that there is a larger proportion of Scotch in the Indian service than in other departments of the public service.

It is your opinion that there are not a greater number of Scotchmen in the East India Company’s service than Englishmen or Irishmen? I do not think there are.

Do you consider a tradesman to belong to the middle class, or not? I do.

Are there not a great many sons of tradesmen sent to India? I am not aware what the proportion is; but I have no doubt that there are some.

What circumstance, in your opinion, leads to the appointment of sons of tradesmen to writerships, or cadetships? I cannot answer that question; I have no knowledge of the motives which operate on Directors in disposing of their patronage.

Is it not a curious circumstance that the son of a horse-dealer should be sent to India as a cadet? The son of a horse-dealer is as likely to qualify himself in the subordinate situations for succeeding to the higher as the son of any one else.

But that is not exactly the class from which you would select persons to be the companions of gentlemen who are to fill honourable professions? It is not the class Edition: current; Page: [39] from whom cadets or writers are generally selected; but I see no reason why such persons should be excluded.

Do you see any reason why the aristocracy should be excluded? I see no reason for excluding any one; but it does seem to me undesirable that those who are appointed to situations in India should be persons permanently connected with political parties, or with Parliamentary influence at home.

Do not you think that the higher the class of men who are appointed to fill our civil situations in India, the greater the security for the connection between India and England? I think that the permanence of the connection between India and England depends upon our being able to give good government to India, and to persuade the people of India that we do so.

Is it your opinion that those persons ought to be excluded from the Indian service who have any connection with the great political parties in this country? I would exclude no one; but I think it is a recommendation of the present system that those appointed under it are mostly unconnected with the possessors of Parliamentary influence.

You think that that is advantageous to the Government of India? It is the greatest protection that can be obtained against improper appointments.

Hitherto there has not been even a suspicion against the manner in which the Governor-general has exercised his power of selection? The Governor-general can seldom have any motive to appoint unfit persons to situations in India, because while the service is taken from one class, the Governor-general belongs to another, and none of his personal or political connexions are in the class from which the service is taken. He has thus no personal interest in appointing persons to situations for which they are unfit, and I believe it is very seldom that such appointments take place, except by mistake, or negligence.

Should you think it an extraordinary circumstance if you heard that a gentleman, on being appointed Governor-general, had, in the course of ten days, before he could get out to India, no less than 400 letters asking him for appointments? I should not be surprised to hear of any number of applications for appointments.

What is the second circumstance to which you alluded as a recommendation of the existing constitution of the Government of India? The two circumstances which I mentioned were, in the first place, that those who are sent out are merely candidates; they are never, or very rarely, appointed from England to any situation in India. The second circumstance was, that by the time those candidates come to be eligible for high situations, it generally happens that the Director from whom they received their nomination is no longer a Director.

Those circumstances that you have stated have reference solely to the appointment and promotion of civil servants. Do you see any other circumstance in the working of the Government at home which would recommend it to Parliament for renewal? The great reason, as it seems to me, recommending it for Edition: current; Page: [40] renewal, is the difficulty, if not impossibility, of forming a system of government which would be likely to work better.

The late Sir Charles Forbes was not a Director? He was not; but he had a son a Director at one time.⁴

He took a great deal of interest in the election of Directors? He had great influence in the elections.

Was he not connected with a party which hung together with the view of influencing the election of Directors? I am not aware that he was.

Should you be surprised to hear that Sir Charles Forbes, in the course of his life, had obtained 40 different appointments, and that he had the curiosity to have the likeness taken of every young man for whom he obtained an appointment, and those likenesses were hung round his room? From his long connexion with the Court of Directors, I should not be surprised at his having obtained that number of appointments. Those who were appointed on his recommendation have been as good servants as any others. If it were only from having a son a Director, he might obtain in a number of years almost that number of appointments.

Have you ever looked at the list of voters for the election of Directors for the purpose of seeing how many gentlemen can obtain a majority of votes?⁵ I have never examined the list with that particular view.

Should you be surprised if you found, on looking into it, that 413 gentlemen had 910 votes?⁶ I should not. That might be the result under any system which gives a plurality of votes on account of the property held.

Have you looked into the list which has been presented from the India House of the number of persons having more than one vote, and the number of voters and the number of votes? I know that there is a considerable number who have two, three, or four stars opposite to their names. If I am asked whether I think it would be better to give only one vote to each elector, I am inclined to think that it would make no practical difference of any importance. The proprietors are not a body which any one would have selected à priori for the election of Directors. Any other body whatever of respectable men would be as likely to elect proper persons as this, and this as likely as any other. As you cannot constitute an elective body in this country identified with the interests of the people of India, it does not appear to me to matter much what the body is.

Need the present body be identified with the interests of India, looking to what the qualification of the elector is beyond this, that it is their interest to see that the interest of the debt is paid? That is the only interest they have in India.

Do you think that the existence of the proprietors as an elective body has the effect of distributing more widely the patronage of the Court of Directors who now distribute it, than if such proprietory body did not exist, and had no claim upon the distribution? I cannot answer that question; I am ignorant what proportion of the patronage of India goes to the proprietors; and whatever the proportion may be, some considerable part of it would go into the same channels if no such body as the proprietors existed.

The more limited the number of persons who distribute the patronage, and the more limited the claims upon them, the more likely that patronage would be to pass in narrow channels connected with the individuals who gave it? It seems to me the primary and essential object that appointments in India should not be held by persons who have Parliamentary and political influence at home, that being the source from which inducements to make bad appointments, or to sanction bad measures, are most likely to come.

What is there in the constitution of the present Court of Proprietors which prevents any political party in this country from becoming proprietors, and, therefore, electors of the Court of Directors? There is nothing to prevent it; but it has not been the fact, and it is not likely to be the fact.

Is there any necessary connexion between the possession of a certain amount of stock, which gives a vote to the party holding it, and interest in the good government of India; and do you think that it would be desirable to introduce some more direct connexion with India on the part of the electors? I think there is a good deal to be said both for and against any such proposition.

Will you have the goodness to state what the arguments are for and against it? If the question were put with reference to some particular proposition, I might be able to answer more satisfactorily.

Is it your opinion that it would be desirable to allow the holders of the debt in India to vote for the Directors, or to give a right of voting to the Company’s servants? I think the constitution of the body of proprietors is of less importance than almost any other question connected with the Government of India; but the main fault of the present system is the long and troublesome canvass which is necessary to enable any person to be appointed a Director; and if there were an increase of the constituency, it is a question whether it would tend to make this canvass a greater or a less burden; it might do either the one or the other.

What objection should you have to Mr. Wynne’s proposal,⁷ that the Crown Edition: current; Page: [42] should have the power of appointing Indian servants as Directors on their return from India to this country? I think the fact that all Indian proceedings are reviewed by two separate bodies, independent of one another, is a much greater security for good government than would exist under any system by which those two bodies were merged into one. The double revision by persons of a different class, in a different position, and probably with different prepossessions, tends greatly to promote a close and rigid examination.

Do you suppose that the present system operates as a sufficient check upon the President of the Board of Control? To judge of the present system, it must be compared with some other. If we compare it with the system of an Indian Minister, who should have both the initiation and the final decision, he would act under a much less check than he now does. The Court of Directors, who are the initiating body, not being the body which finally decides; not being able to act but by the concurrence of a second authority, and having no means of causing their opinion to be adopted by that authority, except the strength of their reasons, there is much greater probability that a body so situated will examine and weigh carefully the grounds of all proceedings, than if the same body which had the initiative gave the final order.

On the whole, you conceive that the Court of Directors are the best administrative body that could be found under the peculiar circumstances of the Government of India? I would not pretend to say that no better could be found; but it seems to me they are as good a body as there is any probability of obtaining. Not having the final power, all the power which they exercise depends upon the care which they bestow upon the examination and consideration of the matters committed to them.

Are you acquainted yourself with the details of the correspondence between the Court of Directors and the Board of Control; can you trace a letter from the moment when it originates, to its final arrival before the Board of Control, or does your position enable you to know anything about it? In most cases it does.

With whom does the letter originate? With the Chairman.

Nominally and officially it originates with the Chairman; but does the Chairman, in fact, gives instructions for writing the letter? That depends upon circumstances. There is a vast mass of ordinary business respecting which the Chairman neither feels called upon to give previous instructions, nor do those who have the care of the department think it necessary to ask for them.

In point of fact, does it not frequently happen that the correspondence is examined by the clerk, or the secretary, and he suggests what the reply shall be? Sometimes so, and sometimes not. In the course of business, the papers come first into the hands of the secretary or clerk, or the person who is in charge of the correspondence; it is his duty, in bringing those papers to the notice of the Chairman, to be able to answer all questions concerning them, and it is expected of him that he shall have formed an opinion upon the subject.

It is expected that he shall suggest what the answer shall be? It is not expected; but he is always at liberty to do so.

Is it not the practice? It is not the practice universally; it is the practice in ordinary matters.

Is it general practice? There is no general practice. It is usual for the person in charge of the correspondence to ask the previous instructions of the Chairman, when he thinks there is any doubt of what the opinions of the Chairman would be.

Does he not write a memorandum first of all of the facts? That is sometimes done in complicated and important cases.

Is it not done universally; is not the substance of the papers in the collection stated in a memorandum, for the convenience of the Chairman; how can he possibly read all the papers himself? It is sometimes stated in the form of a memorandum, and sometimes in that of a proposed letter.

But in all cases the substance, at least, is stated in some manner to the Chairman? Yes.

Together with the opinion of the clerk who makes the statement? With an opinion, or without an opinion. Sometimes the officer who makes the statement thinks it desirable to ask the Chairman’s instructions first on the facts merely, without giving any opinion. In some cases again the Chairman does not wait till he has the facts brought before him, but sends for the officer, interrogates him on the facts, and gives instructions for preparing the reply, after calling for whatever papers he thinks necessary to understand it. The modes of proceeding vary according to the degree of importance ascribed to the matter, and according to the degree of interest the Chairman takes in the subject.

Do not they vary according to the business-like habits of the Chairman? They do; but since the last Charter,⁸ it has very seldom happened that the Chairman has not been a man of business.

Is it not a rare circumstance that the view of the Chairman is disregarded? By no means. On subjects on which a difference of opinion can fairly exist, it very often happens.

What is the character of the opinion expressed by the clerk; does it consist in remarks upon the correspondence in the way of censure or approval? Yes.

Do you know any one measure which has originated at home? It is scarcely possible to say where measures really originate. In cases of emergency, such as war, anything done must necessarily depend upon the Governor-general on the spot; and all that can be done by the home authorities is to express an opinion upon it after it is done, which may have an influence on the Government in future cases. But with reference to internal government, I am not aware of any great measures which have been adopted until after there has been a great deal of discussion between the Local Government and the Home Government on the subject; and Edition: current; Page: [44] though the measure may have originated nominally with the Government of India, the suggestions may often be traced to instructions which had been given, or principles laid down in despatches sent from the home authorities.

At the distance of many years? The despatches from the India House have in many cases tended greatly to form the opinions of Indian politicians in India.

In the case of the abolition of the 160 duties in the North-western frontier in the year 1843,⁹ did that measure originate here? I am not conversant with the details of the Revenue department, though I am, of course, acquainted with its general principles.

Should you not say that the general government of India proceeds on all great occasions without receiving special instructions from home? I think a case can hardly happen in which the Government of India is not tolerably well aware, from previous despatches, whether the course which is about to be adopted is likely to have the approval of the home authorities. There is hardly any measure adopted of which the general principle might not be found discussed in the previous correspondence.

Do not you know whether the abolition of 160 duties upon the North-western frontier was approved or not? I am not aware whether it was approved at the time, but it was sanctioned.

You spoke of the working of the Government being, considering the difficulties, very satisfactory. Can you point out any of the difficulties to which you allude which would be removable by Parliament? It is difficult to foresee in what way alterations would work. But any alteration which placed the control of the Government in some one authority, instead of leaving it divided between two, would, I think, be for the worse.

Would you carry the same principle into effect in every case; instead of having a single Government, do you think it would be convenient to have a double Government? My opinion, if I were able to form any, would depend upon the nature of the case. I am inclined to think that such a double Government would be useful, wherever it was necessary to have a body of a permanent character specially conversant with a subject not generally studied by politicians in this country, while, at the same time, the general Government of the country must also have a voice.

Would you introduce the system of double Government with reference to the 52 colonies of the Crown? I am not sufficiently acquainted with the Colonial department to be able to express a positive opinion; but I should conceive that there might be great advantage from having some body analogous to the Court of Directors as a Council to assist the Colonial Minister.

A Council to represent each colony? It does not follow that there should be a separate body for each colony, any more than that there should be a separate body for each Presidency, or each Zillah, in India.¹⁰

Between Australia and Canada there is no connexion; one permanent body would not be able to advise the Minister of the Crown on Australian and Canadian matters? In Canada and Australia there are local representative bodies perfectly competent to exercise that antagonistic discussion, which seems to me an essential element of good government everywhere; but for India you cannot have any local body which shall produce that result.

Is there not a good deal of antagonistic discussion between the Government of India and the authorities at home; are not the Government of India capable of taking their own part, and giving their reasons for their measures? Certainly; but the discussion between the Government here and the Government there, I apprehend, is not sufficient security where there is nothing else to trust to; where there is no body representing the people of the country, and no body of persons ex officio conversant with their interests.

Should you say that the Court of Directors represent the people of India? Certainly not.

Is not their position directly antagonistic to that of the people of India? The antagonism which I contemplated was a discussion between persons who could not be supposed beforehand to be likely to be of the same opinion; discussion, by persons all of one mind, is of no use; where you have not the advantages given by a representative Government of discussion by persons of all partialities, prepossessions and interests, to secure that the subject shall be looked at in many different lights, though you cannot have a perfect substitute for this, still some substitute is better than none. If you can have a body unconnected with the general Government of the country, and containing many persons who have made that department of public affairs the business of their lives, as is the case with the Court of Directors, there is much better discussion and much better sifting of the matters committed to their charge, by having such a body in addition to the Minister of the Crown, than by having the Minister of the Crown without such a body, or the Minister of the Crown acting as Chairman of the body.

Do you think that if the Court of Directors, in its present form, is to be maintained, advantage would be derived from giving a quasi representative character to the Court of Proprietors, so that their representatives might be more identified in feeling with the people of India? I am not aware how the Court of Proprietors could be so constituted as to be identified with the people of India.

Could you not give to the Court of Proprietors more knowledge of the affairs of India: it appears, by a Return which has been presented to the Committee, that out of 1,760 persons who vote in the election of Directors, there are but 253 persons who have ever been in the service of the Government?¹¹ I cannot foresee what would be the effect of making the circumstance of having served a certain time in India a qualification for the Court of Proprietors; but I should think it could not have a bad effect, unless by multiplying the body, and rendering the canvass more onerous than at present; the difficulty of the canvass has prevented some of the most eminent servants of the Company from seeking a place in the Court of Directors.

Might not the Court of Proprietors be so extended in number, as to render a canvass impossible; and might it not be so improved in its composition, as to give the means of knowing the respective qualifications and claims of the several candidates who desired to belong to the Direction, having served in India? It is difficult to say; there is no popular election at present, however public in its character, in which there is not a canvass; and in this case it is probable that the canvass would always continue onerous.

For instance, do you think that the 899 ladies who have votes, exercise a sound discretion in the selection of the individuals, knowing their qualifications and claims? I do not believe any portion of the Court of Proprietors exercise much discretion of that kind; I do not believe that to any great degree the election by the proprietors is determined by public grounds. I believe, however, that those who are influential among the proprietors are sufficiently before the public, and are themselves sufficiently interested in Indian affairs, not to use their influence on behalf of persons who would be considered discreditable. That is the extent to which there is now a security, and I doubt whether more would be obtained under any system, because I do not think there are the means of forming an electoral body sufficiently identified with the interests of India to afford much security for a good choice.

Do you think the English and foreign Jews, who hold a large amount of stock, exercise a sound discretion in the election of Directors, with reference to the good government of India? I have already said that I do not think the elections of the Court of Directors are made on public grounds; they are mainly the result of private influence; but those who possess the influence, exercise it under a sufficiently Edition: current; Page: [47] strong sense of responsibility to the public to prevent them from selecting any person very objectionable. The security at present depends rather on the kind of persons who are candidates, than on the kind who are electors. The candidates being, as a general rule, persons of Indian experience, who wish to keep up their connexion with Indian affairs, that is in itself some evidence of their not being wholly unfit for the station, inasmuch as persons who have gone through the Indian service, and retired from it, are not likely to retain a taste for Indian employment, unless they retain in some degree their fitness for it.

Has the tendency of the elections in the last 20 years of the Court of Proprietors, as at present constituted, been to strengthen the connexion of the Court of Directors with India, or otherwise? Nearly all the Directors chosen since the last renewal of the Charter have been persons who have served in India; but that I attribute not to the constitution of the Court of Proprietors, but to the fact, that since the Company has ceased to be commercial, there are not the same inducements as formerly to the merchants and bankers of London either to hold stock, or to become Directors, and in consequence few such have been elected.

Has not the circumstance of the Company having ceased to trade, and having ceased to transact all the business which was connected with that trade, increased the number of the Directors who take part in the consideration of the general Government of India? Very much so; it has rendered the personal participation of the whole of the 24 Directors in the general business of India much more complete than it was before. Under the former constitution of the Company, the administration of India rested, with the exception of the Chairs, entirely with the Committee of Correspondence, composed of the nine senior Directors, the remainder of the Directors having no voice in that portion of the business of the Court; of course they had a voice in the deliberations of the Court itself; but not having been previously prepared, by examination of papers and discussion in Committee, they had not so much influence, and were, besides, occupied with other things. The Committee of Correspondence, composed of the senior Directors, and, therefore, necessarily including any members of the Court who might be superannuated, were extremely overladen with business, and made a much more cursory examination of the papers than the Committees do now. At present the Government of India being the only business of the Court, it is divided among three Committees, to all of which every Director is eligible, and the consequence is, that every Director takes a more active part than formerly in the consideration of the draft despatches that are laid before them by the Chairs.

Has not one effect of that been that the Chairs have much less authority than they used to have in the Court? I think it has.

Has it not produced, whether for good or evil, a great practical revolution in the system of government; formerly the business having been conducted through the Chairs by a small body of persons who had the cognizance and general transaction of political cases; and now the 24 Directors take part in the discussions? There is Edition: current; Page: [48] generally a great indisposition to oppose the Chairs; and they are never opposed, except where there is fair ground for a difference of opinion.

Is it not the fact, that in former times, before the commencement of the present Charter Act, when the President of the Board of Control had settled any matter with the Chairs, it was practically a final settlement, and the view taken by the Court, was not in fact different from theirs; but now a settlement between the Chairs and the President, by no means brings after it, as a matter of course, the acquiescence of the Court? I am not aware whether or not there is so great a difference as the question seems to contemplate: there is certainly some difference, and there is a much more active part taken by individual Directors than formerly.

Is not that, again, a great practical alteration in the system of Government? I do not think it is a great practical alteration; it is some practical alteration.

So that we have now to consider whether it is expedient to retain a Government very different from that which existed in 1834? I should not say very different; in some degree it is different.

Does not the addition of three-fourths to a cabinet, which is the change that has been made, produce a very great change in the mode in which cases are judged of and discussed; are not cases now judged of and discussed as they would be in a popular assembly? On great questions which are likely to lead to a difference of opinion between the Court of Directors and the Board of Control, I doubt whether there is any difference; because on questions which were interesting to the collective body of the Court, all the Directors would at any time have given their minds to the subject, and the opinion expressed would have been the opinion of the collective body; I think the difference which has been produced is in the details; it happens much more frequently now that the draft despatches submitted by the Chairs undergo alterations of details in Committees, or the Court; but these are seldom of a kind that materially alter the Government of India.

Does not the influence of the Chair depend very much upon the individual Chairman? Yes.

This change goes, to a certain extent, to diminish the value of the previous communications? There still is very great advantage in the previous communications.

With regard to the active participation taken by the whole body of Directors in the transaction of the business, what is your opinion of that part of the law which requires one-fifth of the Court to go out annually?¹² I think it makes very little difference for either good or harm; I have no decided opinion about it.

With this active part taken by those 24 gentlemen, might it not happen that, merely on account of rotation, a member connected with a department of public business, for which he was peculiarly qualified, might be obliged to go out, and the Court might be deprived of his aid in the transaction of that business? Yes; but that happens much more seldom than might be supposed, because it is always Edition: current; Page: [49] endeavoured to conclude the business of the year within the year. Subjects are begun at such times that they shall not be under discussion at the time of the renewal of the Directors, as in the case of the Session of Parliament, except that there is no interval, as in that case.

Whatever inconvenience exists in that case, your opinion is that care is taken to diminish that inconvenience? I think so.¹³

The Petition of the East-India Company

To the Right Honourable the Lords Spiritual and Temporal, and the Honourable the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled,

^aHumbly sheweth,

That^a your Petitioners, at their own expense, and by the agency of their own civil and military servants, originally acquired for this country its magnificent empire in the East.

That the foundations of this empire were laid by your Petitioners, at that time neither aided nor controlled by Parliament, at the same period at which a succession of administrations under the control of Parliament were losing to the Crown of Great Britain another great empire on the opposite side of the Atlantic.

That during the period of about a century which has since elapsed, the Indian possessions of this country have been governed and defended from the resources of those possessions, without the smallest cost to the British Exchequer, which, to the best of your Petitioners’ knowledge and belief, cannot be said of any other of the numerous foreign dependencies of the Crown.

That it being manifestly improper that the administration of any British possession should be independent of the general Government of the empire, Parliament provided, in 1783, that a department of the Imperial Government should have full cognizance of, and power of control over, the acts of your Petitioners in the administration of India;¹ since which time the home branch of the Indian Government has been conducted by the joint counsels, and on the joint responsibility of your Petitioners and of a Minister of the Crown.

That this arrangement has at subsequent periods undergone reconsideration from the Legislature, and various comprehensive and careful Parliamentary inquiries have been made into its practical operation; the result of which has been, on each occasion, a renewed grant to your Petitioners of the powers exercised by them in the administration of India.²

That the last of these occasions was so recent as 1853, in which year the arrangements which had existed for nearly three-quarters of a century, were, with certain modifications, re-enacted, and still subsist.³

That, notwithstanding, your Petitioners have received an intimation from Her Majesty’s Ministers of their intention to propose to Parliament a Bill for the purpose of placing the government of Her Majesty’s East-Indian dominions under the direct authority of the Crown,⁴—a change necessarily involving the abolition of the East-India Company as an instrument of government.

That your Petitioners have not been informed of the reasons which have induced Her Majesty’s Ministers, without any previous inquiry, to come to the resolution of putting an end to a system of administration, which Parliament, after inquiry, deliberately confirmed and sanctioned less than five years ago, and which, in its modified form, has not been in operation quite four years, and cannot be considered to have undergone a sufficient trial during that short period.

That your Petitioners do not understand that Her Majesty’s Ministers impute any failure to those arrangements, or bring any charge, either great or small, against your Petitioners. But the time at which the proposal is made, compels your Petitioners to regard it as arising from the calamitous events which have recently occurred in India.

That your Petitioners challenge the most searching investigation into the mutiny of the Bengal army, and the causes, whether remote or immediate, which produced that mutiny. They have instructed the Government of India to appoint a commission for conducting such an inquiry on the ^bspot.⁵ And^b it is their most anxious wish that a similar inquiry may be instituted in this country by your [Lordships] Honourable House;⁶ in order that it may be ascertained whether Edition: current; Page: [79] anything either in the constitution of the Home Government of India, or in the conduct of those by whom it has been administered, has had any share in producing the mutiny, or has in any way impeded the measures for its suppression; and whether the mutiny itself, or any circumstance connected with it, affords any evidence of the failure of the arrangements under which India is at present administered.

That, were it even true that these arrangements had failed, the failure could constitute no reason for divesting the East-India Company of its functions, and transferring them to Her Majesty’s ^cGovernment. For,^c under the existing system, Her Majesty’s Government have the deciding voice. The duty imposed upon the Court of Directors is to originate measures and frame drafts of instructions. Even had they been remiss in this duty, their remissness, however discreditable to themselves, could in no way absolve the responsibility of Her Majesty’s Government, since the Minister for India possesses, and has frequently exercised, the power of requiring that the Court of Directors should take any subject into consideration, and prepare a draft despatch for his approval. Her Majesty’s Government are thus in the fullest sense accountable for all that has been done, and for all that has been forborne or omitted to be done. Your Petitioners, on the other hand, are accountable only in so far as the act or omission has been promoted by themselves.

That, under these circumstances, if the administration of India had been a failure, it would, your Petitioners submit, have been somewhat unreasonable to expect that a remedy would be found in annihilating the branch of the ruling authority which could not be the one principally in fault, and might be altogether blameless, in order to concentrate all powers in the branch which had necessarily the decisive share in every error, real or supposed. To believe that the administration of India would have been more free from error had it been conducted by a Minister of the Crown without the aid of the Court of Directors, would be to believe that the Minister, with full power to govern India as he pleased, has governed ill because he has had the assistance of experienced and responsible advisers.

That your Petitioners, however, do not seek to vindicate themselves at the expense of any other ^dauthority. They^d claim their full share of the responsibility of the manner in which India has practically been governed. That responsibility is to them not a subject of humiliation, but of pride. They are conscious that their advice and initiative have been, and have deserved to be, a great and potent element in the conduct of affairs in India. And they feel complete assurance that the more attention is bestowed and the more light thrown upon India and its administration, the more evident it will become that the government in which they have borne a part has been not only one of the purest in intention, but one of the Edition: current; Page: [80] most beneficent in act, ever known among mankind; that, during the last and present generation in particular, it has been, in all departments, one of the most rapidly improving governments in the world; and that, at the time when this change is proposed, a greater number of important improvements are in a state of more rapid progress than at any former period. And they are satisfied that whatever further improvements may be hereafter effected in India can only consist in the development of germs already planted, and in building on foundations already laid, under their authority, and in a great measure by their express instructions.

That such, however, is not the impression likely to be made on the public mind, either in England or in India, by the ejection of your Petitioners from the place they fill in the Indian administration. It is not usual with statesmen to propose the complete abolition of a system of government, of which the practical operation is not condemned, and it might be generally inferred from the proposed measures, if carried into effect at the present time, that the East-India Company, having been intrusted with an important portion of the administration of India, have so abused their trust as to have produced a sanguinary insurrection, and nearly lost India to the British empire; and that having thus crowned a long career of misgovernment, they have, in deference to public indignation, been deservedly cashiered for their misconduct.

That if the character of the East-India Company were alone concerned, your Petitioners might be willing to await the verdict of history. They are satisfied that posterity will do them justice. And they are confident that even now justice is done to them in the minds, not only of Her Majesty’s Ministers, but of all who have any claim to be competent judges of the subject. But though your Petitioners could afford to wait for the reversal of the verdict of condemnation which will be believed throughout the world to have been passed on them and their government by the British nation, your Petitioners cannot look without the deepest uneasiness at the effect likely to be produced on the minds of the people of India. To them, however incorrectly the name may express the fact, the British Government in India is the Government of the East-India Company. To their minds the abolition of the Company will, for some time to come, mean the abolition of the whole system of administration with which the Company is identified. The measure, introduced simultaneously with the influx of an overwhelming British force, will be coincident with a general outcry, in itself most alarming to their fears, from most of the organs of opinion in this country as well as of English opinion in India, denouncing the past policy of the Government on the express ground that it has been too forbearing and too considerate towards the natives. The people of India will at first feel no certainty that the new Government, or the Government under a new name, which it is proposed to introduce, will hold itself bound by the pledges of its predecessors. They will be slow to believe that a Government has been destroyed only to be followed by another which will act on the same principles and adhere to the same measures. They cannot suppose that the existing organ of Edition: current; Page: [81] administration would be swept away without the intention of reversing any part of its policy. They will see the authorities, both at home and in India, surrounded by persons vehemently urging radical changes in many parts of that ^epolicy. And^e interpreting, as they must do, the change in the instrument of government, as a concession to these opinions and feelings, they can hardly fail to believe that, whatever else may be intended, the Government will no longer be permitted to observe that strict impartiality between those who profess its own creed and those who hold the creeds of its native subjects which hitherto characterized it; that their strongest and most deeply-rooted feelings will henceforth be treated with much less regard than heretofore; and that a directly aggressive policy towards everything in their habits, or in their usages and customs, which Englishmen deem objectionable, will be no longer confined to individuals and private associations, but will be backed by all the power of Government.

And here your Petitioners think it important to observe, that in abstaining as they have done from all interference with any of the religious practices of the people of India, except such as are abhorrent to humanity, they have acted not only from their own conviction of what is just and expedient, but in accordance with the avowed intentions and express enactments of the Legislature, framed “in order that regard should be had to the civil and religious usages of the natives,” and also “that suits, civil or criminal, against the natives,” should be conducted according to such rules “as may accommodate the same to the religion and manners of the natives.”⁷ That their policy in this respect has been successful, is evidenced by the fact, that during a military mutiny, said to have been caused by unfounded apprehensions of danger to religion, the heads of the native states, and the masses of the population, have remained faithful to the British Government. Your Petitioners need hardly observe how very different would probably have been the issue of the late events, if the native princes, instead of aiding in the suppression of the rebellion, had put themselves at its head, or if the general population had joined in the revolt; and how probable it is that both these contingencies would have occurred, if any real ground had been given for the persuasion that the British Government intended to identify itself with ^fproselytism. And^f it is the honest conviction of your Petitioners that any serious apprehension of a change of policy in this respect would be likely to be followed, at no distant period, by a general rising throughout India.

That your Petitioners have seen with the greatest pain the demonstrations of indiscriminate animosity towards the natives of India, on the part of our countrymen in India and at home, which have grown up since the late unhappy Edition: current; Page: [82] events. They believe these sentiments to be fundamentally unjust; they know them to be fatal to the possibility of good government in India. They feel that if such demonstrations should continue, and especially if weight be added to them by legislating under their supposed influence, no amount of wisdom and forbearance on the part of the Government will avail to restore that confidence of the governed in the intentions of their rulers without which it is vain even to attempt the improvement of the people.

That your Petitioners cannot contemplate without dismay the doctrine now widely promulgated that India should be administered with an especial view to the benefit of the English who reside there; or that in its administration any ^gadvantage^g should be sought for Her Majesty’s subjects of European birth, except that which they will necessarily derive from their superiority of intelligence, and from the increased prosperity of the people, the improvement of the productive resources of the country, and the extension of commercial intercourse. Your Petitioners regard it as the most honourable characteristic of the government of India by England, that it has acknowledged no such distinction as that of a dominant and a subject race; but has held that its first duty was to the people of India. Your Petitioners feel that a great portion of the hostility with which they are assailed, is caused by the belief that they are peculiarly the guardians of this principle, and that so long as they have any voice in the administration of India, it cannot easily be ^hinfringed. And^h your Petitioners will not conceal their belief that their exclusion from any part in the Government is likely at the present time to be regarded in India as a first successful attack on that principle.

That your Petitioners, therefore, most earnestly represent to your [Lordships] Honourable House, that even if the contemplated change could be proved to be in itself advisable, the present is a most unsuitable time for entertaining it; and they most strongly and respectfully urge on your [Lordships] Honourable House the expediency of at least deferring any such change until it can be effected at a period when it would not be, in the minds of the people of India, directly connected with the recent calamitous events, and with the feelings to which those events have either given rise or have afforded an opportunity of manifestation. Such postponement, your Petitioners submit, would allow time for a more mature consideration than has yet been given, or can be given in the present excited state of the public mind, to the various questions connected with the organization of a government for India; and would enable the most competent minds in the nation calmly to examine whether any new arrangement can be devised for the Home Government of India uniting a greater number of the conditions of good administration than the present; and, if so, which among the numerous schemes Edition: current; Page: [83] which have been, or may be, proposed, possesses those requisites in the greatest degree.⁸

That your Petitioners have always willingly acquiesced in any changes which, after discussion by Parliament, were deemed conducive to the general welfare, although such changes may have involved important sacrifices to themselves. They would refer to their partial relinquishment of trade in 1813;⁹ to its total abandonment, and the placing of their Commercial Charter in abeyance, in 1833;¹⁰ to the transfer to India of their commercial assets, amounting to £15,858,000, a sum greatly exceeding that ultimately repayable to them in respect of their capital, independent of territorial rights and claims;¹¹ and to their concurrence, in 1853, in the measure by which the Court of Directors was reconstructed, and reduced to its present number.¹² In the same spirit, your Petitioners would most gladly co-operate with Her Majesty’s Government in correcting any defects which may be considered to exist in the details of the present system; and they would be prepared, without a murmur, to relinquish their trust altogether, if a better system for the control of the Government of India can be devised. But, as they believe that in the construction of such a system there are conditions which cannot, without the most dangerous consequences be departed from, your Petitioners respectfully ⁱand deferentiallyⁱ submit to the judgment of your [Lordships] Honourable House their view of those conditions; in the hope that if your [Lordships] Honourable House should see reason to agree in that view, you will withhold your legislative sanction from any arrangement for the Government of India which does not fulfil the conditions in question in at least an equal degree with the present.

That your Petitioners may venture to assume that it will not be proposed to vest the home portion of the administration of India in a Minister of the Crown, without the adjunct of a Council composed of statesmen experienced in Indian affairs. Her Majesty’s Ministers cannot but be aware that the knowledge necessary for governing a foreign country, and in particular a country like India, requires as much Edition: current; Page: [84] special study as any other profession, and cannot possibly be possessed by any one who has not devoted a considerable portion of his life to the acquisition of it.

That in constituting a body of experienced advisers to be associated with the Indian Minister, your Petitioners consider it indispensable to bear in mind that this body should not only be qualified to advise the Minister, but also, by its advice, to exercise, to a certain degree, a moral check. It cannot be expected that the Minister, as a general rule, should himself know India; while he will be exposed to perpetual solicitations from individuals and bodies, either entirely ignorant of that country, or knowing only enough of it to impose on those who know still less than themselves, and having very frequently objects in view other than the interests or good government of India. The influences likely to be brought to bear on him through the organs of popular opinion will, in the majority of cases, be equally misleading. The public opinion of England, itself necessarily unacquainted with Indian affairs, can only follow the promptings of those who take most pains to influence it, and these will generally be such as have some private interest to serve. It is, therefore, your Petitioners submit, of the utmost importance that any council which may form a part of the Home Government of India should derive sufficient weight from its constitution, and from the relation it occupies to the Minister, to be a substantial barrier against those inroads of self-interest and ignorance in this country from which the Government of India has hitherto been comparatively free, but against which it would be too much to expect that Parliament should of itself afford a sufficient protection.

That your Petitioners cannot well conceive a worse form of government for India than a Minister with a Council whom he should be at liberty to consult or not at his pleasure, or whose advice he should be able to disregard, without giving his reasons in writing, and in a manner likely to carry conviction. Such an arrangement, your Petitioners submit, would be really liable to the objections, in their opinion, erroneously urged against the present system.¹³ Your Petitioners respectfully represent that any body of persons associated with the Minister, which is not a check, will be a screen.¹⁴ Unless the Council is so constituted as to be personally independent of the Minister, unless it feels itself responsible for recording an opinion on every Indian subject, and pressing that opinion on the Minister, whether it is agreeable to him or not; and unless the Minister, when he overrules their opinion, is bound to record his reasons, their existence will only serve to weaken his responsibility, and to give the colourable sanction of prudence Edition: current; Page: [85] and experience to measures in the framing of which those qualities have had no share.

That it would be vain to expect that a new Council could have as much moral influence, and power of asserting its opinion with effect, as the Court of Directors. A new body can no more succeed to the feelings and authority which their antiquity and their historical antecedents give to the East-India Company, than a legislature under a new name, sitting in Westminster, would have the moral ascendancy of the Houses of Lords and Commons. One of the most important elements of usefulness will thus be necessarily wanting in any newly constituted Indian Council, as compared with the present.

That your Petitioners find it difficult to conceive that the same independence in judgment and act, which characterizes the Court of Directors, will be found in any Council all of whose members are nominated by the Crown. Owing their nomination to the same authority, many of them probably to the same individual Minister, whom they are appointed to check, and looking to him alone for their re-appointment, their desire of recommending themselves to him, and their unwillingness to risk his displeasure by any serious resistance to his wishes, will be motives too strong not to be in danger of exercising a powerful and injurious influence over their conduct. Nor are your Petitioners aware of any mode in which that injurious influence could be guarded against, except by conferring the appointments, like those of the Judges, during good behaviour; which, by rendering it impossible to correct an error once committed, would be seriously objectionable.

That your Petitioners are equally unable to perceive how, if the controlling body is entirely nominated by the Minister, that happy independence of Parliamentary and party influence, which has hitherto distinguished the administration of India and the appointment to situations of trust and importance in that country, can be expected to continue. Your Petitioners believe that in no government known to history have appointments to offices, and especially to high offices, been so rarely bestowed on any other considerations than those of personal fitness. This characteristic, but for which in all probability India would long since have been lost to this country, is, your Petitioners conceive, entirely owing to the circumstance that the dispensers of patronage have been persons unconnected with party, and under no necessity of conciliating parliamentary support; that, consequently, the appointments to offices in India have been, as a rule, left to the unbiassed judgment of the local authorities; while the nominations to the civil and military services have been generally bestowed on the middle classes, irrespective of political considerations, and, in a large proportion, on the relatives of persons who had distinguished themselves by their services in India.

That your Petitioners, therefore, think it essential that at least a majority of the Council which assists the Minister for India with its advice, should hold their seats independently of his appointment.

That it is, in the opinion of your Petitioners, no less necessary that the order of the transaction of business should be such as to make the participation of the Council in the administration of India a substantial one. That to this end, it is, in the opinion of your Petitioners, indispensable that the despatches to India should not be prepared by the Minister and laid before the Council, but should be prepared by the Council and submitted to the Minister. This would be in accordance with the natural and obvious principle that persons chosen for their knowledge of a subject should suggest the mode of dealing with it, instead of merely giving their opinion on suggestions coming from elsewhere. This is also the only mode in which the members of the Council can feel themselves sufficiently important or sufficiently responsible to secure their applying their minds to the subjects before them. It is almost unnecessary for your Petitioners to observe, that the mind is called into far more vigorous action by being required to propose than by merely being called on to assent. The Minister has necessarily the ultimate decision. If he has also the initiative, he has all the powers which are of any practical moment. A body whose only recognized function was to find fault, would speedily let that function fall into desuetude. They would feel that their co-operation in conducting the Government of India was not really desired; that they were only felt as a clog on the wheels of business. Their criticism on what had been decided without their being collectively consulted would be felt as importunate, as a mere delay and impediment; and their office would probably be seldom sought but by those who were willing to allow its most important duties to become nominal.

That with the duty of preparing the despatches to India, would naturally be combined the nomination and control of the home establishments. This your Petitioners consider absolutely essential to the utility of the Council. If the officers through whom they work are in direct dependence upon an authority higher than theirs, all matters of importance will in reality be settled between the Minister and the subordinates, passing over the Council altogether.

That a third consideration, to which your Petitioners attach great importance, is, that the number of the Council should not be too restricted. India is so wide a field, that a practical acquaintance with every part of its affairs cannot be found combined in any small number of individuals. The Council ought to contain men of general experience and knowledge of the world; also men specially qualified by financial and revenue experience, by judicial experience, diplomatic experience, military ^jexperience. It^j ought to contain persons conversant with the varied social relations and varied institutions of Bengal, Madras, Bombay, the North-Western Provinces, the Punjab, and the native states. Even the present Court of Directors, reduced as it is in numbers by the Act of 1853, does not contain all the varieties of knowledge and experience desirable in such a ^kbody. Neither,^k your Petitioners Edition: current; Page: [87] submit, would it be safe to limit the number to that which would be strictly sufficient, supposing all the appointments to be the best possible. A certain margin should be allowed for failures, which, even with the most conscientious selection, will sometimes occur. Your Petitioners, moreover, cannot overlook the possibility that, if the nomination takes place by Ministers at the head of a political party, it will not always be made with exclusive reference to personal qualifications; and it is indispensable to provide that such errors or faults in the nominating authority, so long as they are only occasional, shall not seriously impair the efficiency of the body.

That while these considerations plead strongly for a body not less numerous than the present, even if only regarded as advisers of the Minister, their other office, as a check on the Minister, forms, your Petitioners submit, a no less forcible objection to any considerable reduction of the present number. A body of six or eight will not be equal to one of eighteen, in that feeling of independent self-reliance which is necessary to induce a public body to press its opinion on a Minister to whom that opinion is unacceptable. However unobjectionably in other respects so small a body may be constituted, reluctance to give offence will be likely, unless in extreme cases, to be a stronger habitual inducement in their minds than the desire to stand up for their convictions.

That if, in the opinion of your [Lordships] Honourable House, a body can be constituted which unites the above enumerated requisites of good government in a greater degree than the Court of Directors, your Petitioners have only to express their humble hope that your endeavours for that purpose may be successful. But if, in enumerating the conditions of a good system of Home Government for India, your Petitioners have in fact enumerated the qualities possessed by the present system, then your Petitioners pray that your [Lordships] Honourable House will continue the existing powers of the Court of Directors.

That your Petitioners are aware that the present Home Government of India is reproached with being a double Government; and that any arrangement by which an independent check is provided to the discretion of the Minister will be liable to a similar reproach. But they conceive that this accusation originates in an entire misconception of the functions devolving on the Home Government of India, and in the application to it of the principles applicable to purely executive departments. The Executive Government of India is, and must be, seated in India itself. The Court of Directors is not so much an executive, as a deliberative body. Its principal function, and that of the Home Government generally, is not to direct the details of administration, but to scrutinize and revise the past acts of the Indian ^lGovernments^l; to lay down principles, and issue general instructions for their future guidance, and to give or refuse sanction to great political measures, which are referred home for approval. These duties are more analogous to the functions of Edition: current; Page: [88] Parliament, than to those of an Executive Board: and it might almost as well be said that Parliament, as that the Government of India, should be constituted on the principles applicable to Executive Boards. It is considered an excellence, not a defect, in the constitution of Parliament, to be not merely a double but a triple Government. An executive authority, your Petitioners submit, may often with advantage be single, because promptitude is its first requisite. But the function of passing a deliberate opinion on past measures, and laying down principles of future policy, is a business which, in the estimation of your Petitioners, admits of, and requires the concurrence of more judgments than one. It is no defect in such a body to be double, and no excellence to be single; especially when it can only be made so by cutting off that branch of it which by previous training is always the best prepared, and often the only one which is prepared at all, for its peculiar duty.

That your Petitioners have heard it asserted that, in consequence of what is called the double Government, the Indian authorities are less responsible to Parliament and the nation, than other departments of the Government of the Empire, since it is impossible to know on which of the two branches of Home Government the responsibility ought to rest. Your Petitioners fearlessly affirm, that this impression is not only groundless, but the very reverse of the truth. The Home Government of India is not less, but more responsible, than any other branch of the administration of the State; inasmuch as the President of the Board of Commissioners,¹⁵ who is the minister for India, is as completely responsible as any other of Her Majesty’s Ministers, and in addition, his advisers also are responsible. It is always certain, in the case of India, that the President of the Board of Commissioners must have either commanded or sanctioned all that has been done. No more than this, your Petitioners submit, can be known in the case of the head of any department of Her Majesty’s Government. For it is not, nor can it rationally be supposed, that any Minister of the Crown is without trusted advisers; and the Minister for India must, for obvious reasons, be more dependent than any other of Her Majesty’s Ministers, upon the advice of persons whose lives have been devoted to the subject on which their advice has been given. But in the case of India, such ^madvisers^m are assigned to him by the constitution of the Government, and they are as much responsible for what they advise as he for what he ordains: while in other departments the Minister’s only official advisers are the subordinates in his office—men often of great skill and experience, but not in the public eye; often unknown to the public even by name; official reserve precludes the possibility of ascertaining what advice they give, and they are responsible only to the Minister himself. By what application of terms this can be called responsible government, and the joint government of your Petitioners and the India Board an irresponsible government, your Petitioners think it unnecessary to ask.

That without knowing the plan on which Her Majesty’s Ministers contemplate the transfer to the Crown of the servants of the Company, your Petitioners find themselves unable to approach the delicate question of the Indian Army, further than to point out that the high military qualities of the officers of that army have unquestionably sprung in a great degree from its being a principal and substantive army, holding Her Majesty’s commissions and enjoying equal rank with Her Majesty’s officers, and your Petitioners would earnestly deprecate any change in that position.

That your Petitioners, having regard to all these considerations, humbly pray your [Lordships] Honourable House, that you will not give your sanction to any change in the constitution of the Indian Government during the continuance of the present unhappy disturbances, nor without a full previous inquiry into the operation of the present system. And your Petitioners further pray that this inquiry may extend to every department of Indian administration. Such an inquiry your Petitioners respectfully claim, not only as a matter of justice to themselves, but because, when, for the first time in this century, the thoughts of every public man in the country are fixed on India, an inquiry would be more thorough, and its results would carry much more instruction to the mind of Parliament, and of the country, than at any preceding period.

Memorandum of the Improvements in the Administration of India during the Last Thirty Years

at this time, when a calamity unexampled in the history of British India has excited an unusual amount of interest in Indian affairs, while the statements publicly made, and the opinions expressed, concerning the administration of the Indian Government, strikingly manifest the deficiency of correct information on the subject; a brief survey of the principal measures which have been of late adopted for improving the internal government of the country, and the physical and mental condition of its inhabitants, may be serviceable in removing false impressions, and in supplying materials for a deliberate judgment.

It may be thought that this survey would most fitly commence from the last renewal of the powers of the East-India Company, with some modifications, in 1853;¹ and it must be said that the years which have since elapsed have been marked by a degree of activity in every description of public improvement, not only greater than that exhibited previously, but unsurpassed, it is believed, in any country and in any age. An interval, however, of only four years is evidently too short to afford an intelligible view of a course of progressive improvement. The foundation of all the great measures which were in active progress during that interval, was laid at an earlier period: and the new measures which have been initiated during that brief term have not yet had time to exhibit tangible results. It is therefore necessary to trace the stream of Indian improvement from a point much higher up in its course; beginning at the origin of the measures which have contributed most, in each department, to give to the administration of India its present enlightened character.

Report to the General Court of Proprietors, Drawing Attention to the Two Bills Now before Parliament Relating to the Government of India

it is the duty of your Directors to lay before the Proprietors the two Bills which have been introduced into Parliament by the late and by the present Ministry, for divesting the East-India Company of all participation in the government of India, and framing a new scheme of administrative agency.¹

On former occasions when the Ministers of the Crown have submitted measures to Parliament for altering, in any manner, the constitution of the Indian Government, the substance of the measures has been officially communicated to the Court of Directors, and an opportunity allowed to them of offering such remarks as their knowledge and experience in Indian affairs might suggest. The correspondence being afterwards laid before the Court of Proprietors, formed the most appropriate report which the Directors could make to their constituents on the measures under consideration by the Legislature. In the present instance, this opportunity not having been afforded to them, it appears desirable that they should adopt the present mode of laying before the proprietary body the observations which it is entitled to expect from its executive organ, on the Bills now before Parliament, and on the present posture of the Company’s affairs.

The Directors cannot but advert with feelings of satisfaction to the altered tone which public discussion has assumed in regard to the character of the East-India Company, and the merits of the administration in which the Company has borne so important a part. The intention of proposing the abolition of the Company’s government was announced in the midst of, and it may be surmised, in deference Edition: current; Page: [164] to, a clamour, which represented the government of India by the Company as characterized by nearly every fault of which a civilized Government can be accused, and the Company as the main cause of the recent disasters.² But in the parliamentary discussions which have lately taken place, there has been an almost universal acknowledgment that the rule of the Company has been honourable to themselves and beneficial to India; while no political party, and few individuals of any consideration, have alleged anything seriously disparaging to the general character of the Company’s administration. So far, therefore, the stand made by the Company against the calumnies with which they have been assailed, may be considered to have been successful.

But the admission generally made, and made explicitly by the proposers of both the Bills, that the existing system works well, has not had the effect of inducing doubt of the wisdom of hastily abolishing it. Neither does it seem to have been remembered, that if the system has worked well, there must be some causes for its having done so, and that it would be worth while to consider what these are, in order that they might be retained in any new system. If the constitution which has made the Indian Government what it is, must be abolished, because it is thought defective in theory, what is substituted should at least be theoretically unobjectionable. But the constitution of the East-India Company, however anomalous, is far more in accordance with the acknowledged principles of good government than either of the proposed Bills.

The nature of the case is, indeed, itself so anomalous, that something anomalous was to be expected in the means by which it could be successfully dealt with.

All English institutions and modes of political action are adapted to the case of a nation governing itself. In India, the case to be provided for is that of the government of one nation by another, separated from it by half the globe; unlike it in everything which characterizes a people; as a whole, totally unacquainted with it; and without time or means for acquiring knowledge of it or its affairs.

History presents only two instances in which these or similar difficulties have been in any considerable degree surmounted. One is the Roman Empire; the other is the government of India by the East-India Company.

The means which the Bills provide for overcoming these difficulties consist of the unchecked power of a Minister. There is no difference of moment in this respect between the two Bills. The Minister, it is true, is to have a Council. But the most despotic rulers have Councils. The difference between the Council of a despot and a Council which prevents the ruler from being a despot is, that the one is dependent on him, the other independent; that the one has some power of its own, Edition: current; Page: [165] the other has not. By the first Bill, the whole Council is nominated by the Minister; by the second, one-half of it is nominated by him.³ The functions to be intrusted to it are left, in both, with some slight exceptions, to the Minister’s own discretion.⁴

The Minister is indeed subject to the control of Parliament and of the British nation. But though Parliament and the nation exercise a salutary control over their own affairs, it would be contrary to all experience to suppose that they will exercise it over the affairs of a hundred millions of Hindoos and Mahomedans. Habitually, they will doubtless be hereafter, as they have been heretofore, indifferent and inattentive to Indian affairs, and will leave them entirely to the Minister. The consequence will be, that in the exceptional cases in which they do interfere, the interference will not be grounded on knowledge of the subject, and will probably be for the most part confined to cases where an Indian question is taken up from party motives, as the means of injuring a Minister; or when some Indian malcontent, generally with objects opposed to good government, succeeds in interesting the sympathies of the public in his favour. For it is not the people of India, but rich individuals and societies representing class interests, who have the means of engaging the ear of the public through the press, and through agents in Parliament. And it is important to remark, that by the provisions of either of the Bills the House of Commons will be rendered even less competent, in point of knowledge of Indian affairs, than at present, since by both Bills all the members of the Council of India will be excluded from it.

The government of dependencies by a Minister and his subordinates, under the sole control of Parliament, is not a new experiment in England. That form of colonial government lost the United States, and had nearly lost all the colonies of any considerable population and importance. The colonial administration of this country has only ceased to be a subject of general condemnation since the principle has been adopted of leaving all the important colonies to manage their own affairs,—a course which cannot be followed with the people of India. If the control of Parliament has not prevented the habitual mismanagement of countries inhabited by Englishmen like ourselves, who had every facility for representing and urging their grievances, it is not likely to be any effectual protection to Musselmans and Hindoos.

All governments require constitutional checks; but the constitutional checks applicable to a case of this peculiar kind, must be found within the governing body itself.

Though England as a whole, while desiring nothing but to govern India well, is necessarily ignorant of India, and feels, under ordinary circumstances, no particular interest in its concerns, there are in England a certain number of persons who possess knowledge of India, and feel an interest in its affairs. It seems, Edition: current; Page: [166] therefore, very desirable, for the sake of India, that England should govern it through, and by means of, these persons. This would be the case if the organ of government principally consisted of persons who have passed a considerable portion of their lives in India, or who feel that habitual interest in its affairs which is naturally acquired by having aided in administering them; and if this body, or a majority of it, were periodically elected by a constituency composed of persons in England who have served the Government for a certain length of time in India, or whose interests are connected with that country by some permanent tie. It would be an additional advantage if this constituency had the power of requiring information, and compelling a public discussion of Indian questions. These are conditions which, to a considerable extent, the existing constitution of the East-India Company fulfils.

The other great constitutional security for the good government of India lies in the forms of business. This is a point to which sufficient importance is not generally attached. The forms of business are the real constitution of India.

From the necessity of the case, recognized in both the proposed measures, the administration must be shared, in some proportion, between a Minister and a Council. The Council may consist of persons possessing knowledge of India. The Minister, except in very rare cases, can possess little or none. He is placed in office by the action of political party, which is governed by considerations totally unconnected with India, and, in the common course of politics, he is removed from office by the time he has been able to learn his duty. Even in the unusual case, of which present circumstances are an example, when the Minister has made himself acquainted with India through the discharge of high functions in India itself,⁵ his knowledge is but the knowledge of one man; and one man’s knowledge of a subject like India, until corrected and completed by that of other men, is, it may safely be affirmed, wholly insufficient, and if implicitly trusted, even dangerous. The good government, therefore, of India, by a Minister and a Council, depends upon the amount of influence possessed by the Council; and their influence depends upon the forms of business.

However experienced may be the Council, and however inexperienced the Minister, he will have the deciding voice. The power will rest with one who may know less of the subject than any member of the Council, and is sure to know less than the Council collectively, if they are selected with ordinary judgment. The Council will have no substantive power, but only moral influence. It is therefore all important that this influence should be upheld. Unless the forms of business are such as to insure that the Council shall exercise its judgment on all questions; that all matters requiring decision shall be considered by them, and their views recorded in the initiatory stage, before the Minister has committed himself to an opinion, they will possess no more weight or influence than the same number of Edition: current; Page: [167] clerks in his office (whom also he can consult if he pleases), and the power of the Minister will be practically uncontrolled.

In both the Bills these considerations are entirely disregarded. The first Bill does not establish any forms of business, but leaves them to be determined by the Minister and his Council; in other words, by the Minister.⁶ Even, therefore, if the Minister first appointed should be willing to establish forms which would be any restraint upon himself, a subsequent Minister would have it in his power to alter the forms in any manner he pleased.

The second Bill, unlike the first, does establish forms of business; but such alone as would effectually prevent the Council from being a reality, and render it a useless pageant.

To make the Council a merely consultative body, without initiative, before whom subjects are only brought after the Minister has made up his mind, is already a fatal inroad upon its usefulness. But by the second Bill the Council are not even a consultative body. The Minister is under no obligation to consult them. They are not empowered to hold any regular meetings. They are to meet only when the Minister convenes them, or on a special requisition by six members. He may send orders to India without their knowledge when the case is urgent, of which urgency he is the sole judge. When it is not urgent, his orders must be placed in the council-room for the perusal of the members for seven days, during which they are not required, but permitted, to give their opinion, not collectively, but individually. Their only power, therefore, is that of recording dissent from a resolution not only taken, but embodied in a despatch. And as if this was not enough, provision is made that an office always invidious, shall be incapable of being fulfilled in any but the most invidious manner. The members of Council must come forward individually in declared opposition to the Minister, by volunteering a protest against his announced intentions, or signing a requisition for a meeting of Council to oppose them.⁷ Such a Council is fitted to serve as a shield for the Minister’s responsibility when it may suit him to seek, and them to accord, their adhesion, rather than as a restraint on his power to administer India according to his individual pleasure.

The Directors are bound to admit, that the first of the Bills contains several provisions indicative of a wish to assure to the Council a certain, though small, amount of influence. The administration is to be carried on in the name of the President in Council, and not, as by the second Bill, in that of the Secretary of State alone.⁸ The Council, as well as the President, has a voice in the appointment of the home establishment; while in the second Bill all promotions and all appointments to the principal offices under the Council, rest with the Secretary of State, Edition: current; Page: [168] exclusively, a provision which divests the Council of all control or authority over their own establishment.⁹ Again, by section XII of the first Bill, no grant involving increase of expenditure, and no appointment to office or admission to service, can be made without the concurrence of half the Council. This, as far as it goes, is a real power, but its value is much diminished by the consideration that those by whom it is to be exercised, are the nominees of the Minister, dependent on him for their continuance in office after a few years.

In some other points the provisions of the second Bill seem to have the advantage. Its Council is more numerous;¹⁰ to which, however, little importance can be attached, if the Council has no substantial power. It also recognizes that the whole of the Council ought not to be nominated by the Minister, and that some part of it should be elected by a constituency specially qualified by a knowledge of India.¹¹ But even in these, the best points of the Bill, it is, in the opinion of the Directors, very far from unexceptionable. The nomination of even half the Council by the Minister, takes away all security for an independent majority. It may, indeed, be doubted whether there is any sufficient reason for the Minister’s nominating any portion, except the supposed reluctance of some eligible persons to encounter a canvass. The proportion of one-third, whom the Minister now nominates to the Court of Directors, seems the largest which, consistently with full security for independence, can be so appointed.

The provision that each of the members nominated by the Crown shall be selected as the representative of some particular branch of the service in India, is still more objectionable. Not only would it preclude the nomination of the most distinguished man, if the seat in Council appropriated to the department in which he had served were not at the time vacant, but it would introduce a principle which cannot be too strongly deprecated,—that of class legislation. The Council should comprise the greatest attainable variety of knowledge and experience, but its members should not consider themselves as severally the representatives of a certain number of class interests.

The clause which continues to the Proprietors the power of electing some portion of the Council is, so far, deserving of support; and the principle of enlarging the constituency by the addition of persons of a certain length of Indian service and residence, is, in itself, unexceptionable;¹² but unless guarded by provisions, such as have never yet been introduced into any electoral system, so large and scattered a constituency as that proposed would greatly add to the inconvenience of canvass, especially as it is not certain that the new electoral body would adopt, from the old, the salutary custom of re-electing, as the general Edition: current; Page: [169] practice, whoever has been once chosen, and has not, by misconduct or incapacity, deserved to forfeit their confidence. The duties of a Member of Council would be entirely incompatible with a continually-recurring canvass of the constituency.

Respecting the proposition for giving the choice of five Members of Council to the Parliamentary constituencies of five great towns,¹³ the Court of Directors can only express a feeling of amazement. It is not the mere fact of election by a multitude that constitutes the benefits of the popular element in government. To produce those benefits, the affairs of which the people are enabled to control the management must be their own affairs. Election by multitudinous bodies, the majority of them of a very low average of education, is not an advantage of popular government, but, on the contrary, one of its acknowledged drawbacks. To assign to such a constituency the control, not of their own affairs, but of the affairs of other people on the other side of the globe, is to incur the disadvantages of popular institutions without any of the benefits. The Court of Directors willingly admit the desirableness, if not necessity, of some provision for including an English element in the Council of India; but a more objectionable mode than the one proposed of attaining the object, could scarcely, in their opinion, be devised.

Besides the provisions which relate to the organ of Government in England, the Bills contain provisions relating to India itself which are open to the strongest objection.

The appointments to the Councils at Calcutta and at the subordinate Presidencies, which are now made by the Court of Directors, with the approbation of the Crown, are transferred by both Bills to the Governor-General, and to the Governors of Madras and Bombay.¹⁴ The Court of Directors are convinced that this change would greatly impair the chances of good government in India. One of the causes which have most contributed to the many excellences of Indian administration, is that the Governor-General and Governors have always been associated with Councillors selected by the authorities at home from among the most experienced and able members of the Indian service, and who, not owing their appointments to the head of the Government, have generally brought to the consideration of Indian affairs an independent judgment. In consequence of this, the measures of a Government, necessarily absolute, have had the advantage, seldom possessed in absolute Governments, of being always preceded by a free and conscientious discussion; while, as the head of the Government has the power, on recording his reasons, to act contrary to the advice of his Council, no public inconvenience can ever arise from any conflict of opinion. These important officers, who, by their participation in the Government, form so salutary a restraint on the precipitancy of an inexperienced, or the wilfulness of a despotically-tempered, Edition: current; Page: [170] Governor-General or Governor, are henceforth to be appointed by the great functionary whom they are intended to check. And this restraint is removed, when the necessity for an independent Council will be greater than ever, since the power of appointing the Governor-General, and of recalling him, is taken away from the Company, and from the body which is to be their substitute.¹⁵ It may be added, that the authorities at home have had the opportunity of being acquainted with the conduct and services of candidates for Council from the commencement of their career. The Governor-General or Governor would often have to nominate a councillor soon after their arrival in India, when necessarily ignorant of the character and merits of candidates, and would be entirely dependent on the recommendation of irresponsible advisers.

Another most objectionable provision demands notice, which is to be found only in the second Bill. A commission, appointed in England, is to proceed to India, for the purpose of inquiring and reporting on the principles and details of Indian finance, including the whole revenue system, and, what is inseparably involved in it, the proprietary rights and social position of all the great classes of the community.¹⁶ The Court of Directors cannot believe that such a project will be persisted in. It would be a step towards the disorganization of the fabric of government in India. A commission from England, independent of the local government of the country, deriving its authority directly from the higher power to which the local government is subordinate, and instructed to carry back to the higher power information on Indian affairs which the local government is not deemed sufficiently trustworthy to afford, would give a most serious shock to the influence of the local authorities, and would tend to impress all natives with the belief that the opinions and decisions of the local government are of small moment, and that the thing of real importance is the success with which they can contrive that their claims and objects shall be advocated in England. Up to the present time it has been the practice of the Home Government to uphold in every way the authority of the governments on the spot; even when reversing their acts, to do so through the governments themselves, and to employ no agency except in subordination to them.

From this review of the chief provisions of the Bills, which embody the attempts of two great divisions of English statesmen to frame an organ of government for India, it will probably appear to the Proprietors, that neither of them is grounded on any sufficient consideration of past experience, or of the principles applicable to the subject; that the passing of either would be a calamity to India; and that the attempt to legislate while the minds of leading men are in so unprepared a state, is altogether premature.

The opinion of your Directors is, that by all constitutional means the passing of Edition: current; Page: [171] either Bill should be opposed; but that if one or the other should be determined on for the purpose of transferring the administration, in name, from the East-India Company to the Crown, every exertion should be used in its passage through committee to divest it of the mischievous features by which both Bills are now deformed, and to maintain, as at present, a really independent Council, having the initiative of all business, discharging all the duties, and possessing all the essential powers of the Court of Directors. And it is the Court’s conviction, that measures might be so framed as to obviate whatever may be well founded in the complaints made against the present system, retaining the initiative of the Council, and that independence of action on their part which should be regarded as paramount and indispensable.

A Constitutional View of the India Question

the proposal to extinguish the East-India Company,¹ and to place the whole administration of India in the hands of a Minister and a Council, without any substantial power, is an ominous advance in that centralisation of all the functions of Government in the hands of the Cabinet, so justly deprecated by the soundest thinkers, whether of Liberal or Conservative opinions.

Next to a national representation, the most important of all political principles is, that the only affairs directly administered by the Imperial Government should be the general affairs of the nation; and that all local affairs, whether they be those of any particular part of the United Kingdom or of any foreign dependency, should, if possible, be administered by some intermediate body, constituted expressly for the purpose.

The general concerns of the empire are sufficient to occupy the whole time and thoughts of her Majesty’s Ministers. They cannot possibly make themselves properly acquainted with the affairs of every separate locality or dependency of the empire. They are not, and cannot be, appointed to office on account of their knowledge of the affairs of localities or dependencies.

Besides, it is admitted that the only security for the good conduct of any portion of the national affairs which is entrusted to Ministers, lies in the control of Parliament. And with regard to the general affairs of the empire, this control is efficacious. But Parliament, no more than Ministers, has time either to study or to deliberate on local affairs; and it is not in the nature of things that more than a few members of Parliament should be well acquainted with, or feel any strong interest in, the affairs of any particular locality. Local affairs, therefore, unless when private interests were concerned, would generally be left entirely to Ministers; and not only would they be almost sure to be mismanaged, but the power and patronage which their management would confer, and the habit engendered of looking entirely to the Ministers of the Crown as the source of all authority, would be dangerous to the liberty and safety of the nation.

These are not new doctrines, but the acknowledged principles of the Edition: current; Page: [176] Constitution. All sound thinkers in other countries are sensible of their value, and declare with one accord that the power which the central Governments of the Continent exercise in local affairs, and the dependence upon the Government of every intermediate body which discharges important administrative functions, are the great cause why the principal nations of the Continent, among all their revolutions, have never yet succeeded in acquiring liberty.²

In England this evil has hitherto been avoided. The English people have always managed their local affairs for themselves, without the interference of the Government. Almost all the British Colonies have, from their first foundation or acquisition, enjoyed in a great degree the same advantage. They have had local Parliaments for their domestic administration; and though a Minister in London long continued to control and thwart the action of those local bodies, each colony as it advanced in prosperity showed such a determination to emancipate itself from the interference of the Imperial Government in affairs not of Imperial interest, that they at last succeeded in attaining their object.

The greatest dependency of the Crown, India, is, by general admission, not capable of administering its own affairs by a representative system. This, however, does not diminish, but increases, the mischief and danger of its administration by the unchecked power of a Cabinet Minister. There is far more danger in India than in any Colony, of the ignorant or corrupt misuse of Ministerial power; because India is less understood than any Colony, because its people are less capable of making their voice heard, and because it is more difficult for Parliament to interfere in its administration with adequate knowledge, than in the affairs of any Colony.

India has hitherto been administered, under the general control of Parliament, by a body, who holding aloof from the party conflicts of English politics, devoted their whole time and energies to Indian affairs. The great Corporation, which gained India for this country, has hitherto been considered the best qualified to conduct its administration, under the authority of the Crown, subject, when necessary, to the veto of the Board of Control.

It is now proposed to abolish this intermediate body, and to impose upon India the exclusive government of a Cabinet Minister, which every important Colony has found it impossible to bear. The yoke of the old Colonial Office, which the Colonies, one after another, have rejected and thrown off, is to be laid upon India.

The reason assigned is, the supposed evil of double government and divided responsibility.

Without discussing what is the value of these objections in the case of India, it is sufficient to observe that they are applicable to every British institution, under Edition: current; Page: [177] which any of the affairs of the public are administered by an authority independent of the Cabinet.

Already the management of the Light-houses of Great Britain by the Corporation of the Trinity-House, a management which is the admiration of Europe, is assailed as a “double government,” by (among others) a member of the late Administration.³ The Trinity-House is apparently marked out as the next victim.

The management of the poor, and the control of the poor-rates, are shared between a Government Board and the local Boards of the various Poor Law Unions.⁴ Double government; divided responsibility. Abolish the Boards of Guardians. Concentrate all power in the Central Board. Let the Crown appoint all overseers; and let them, under the Board’s orders, fix the parochial rates, and exclusively control their expenditure.

The sanitary administration of towns is shared between a Government Board, and the Corporations and other local authorities.⁵ Double government; divided responsibility. Give all the power to the Board of Health; allow the Board to construct works and establish sanitary regulations at its pleasure, and to tax the inhabitants of the towns for defraying the expense.

The popular education of the country is partly administered by the Committee of Council for Education, and partly by private trustees or voluntary associations.⁶ The schools of the country are mostly supported by the one authority, and inspected by the other. Double government; divided responsibility. Let no trustees or voluntary associations have anything to do with schools. Place the whole responsibility on the Committee of Council: let them maintain schools for the whole country, levy school-rates to pay their expenses, appoint the teachers, and fix the course of instruction.

There was lately a Railway Board; and its powers still exist, though transferred to the Board of Trade.⁷ The general Government interferes largely in the affairs of railway companies. Parliament sanctions the lines, and fixes a maximum of rates. A Government officer inquires into all accidents, and no line can be opened until declared safe by a Government engineer. Double government; divided responsibility. Let the Government take possession of all the railways; or let it appoint the Edition: current; Page: [178] chairman of every railway company, and let him govern, consulting or not the directors and proprietors, as he pleases.

The highways, the gaols, the county rates, and the administration of justice at sessions, are conducted by intermediate bodies—the Justices of Peace. These are already nominated by the Minister (on the recommendation of the Lord Lieutenant), and removable by him; but as it is not usual to remove them except for proved misconduct, they are practically independent, and in the exercise of their functions they are not obliged to be the instruments of a Minister. This, in the opinion of the enemies of double government, must be a great evil. Why should not magistrates be appointed for six years only? Why should not the chairman of sessions be appointed by the Crown, and all county business be transacted by him and a few clerks; the other magistrates being only summoned when he thinks fit, and, when summoned, their opinion being only attended to if he chooses?

The general administration of justice is shared between a judge appointed by the Crown, and a jury of citizens. Double government; divided responsibility. Let the judge alone decide: if he pleases, he may consult a jury; and if he pleases, he may adopt their verdict.

It is superfluous to carry the illustration further. If the cry of Double Government is to prevail, none of the free institutions of this country, except perhaps the House of Commons, are safe; and we may be thankful if the principle is not applied to Parliament too. All government, except the single government of one man, is double government, or treble government, or quadruple government; and if the people of England, in a case of such magnitude as India, allow this plea to be successful, and the intermediate body which administers that country under the Crown to be superseded by the undivided power of a Minister and his subordinates, they will sanction a principle and establish a precedent which they may before long have reason to regret.

Observations on the Proposed Council of India

the house of commons has virtually decided that the home administration of India shall be carried on by a Minister of the Crown with the assistance of a Council.

It is still to be determined in what manner the Council shall be composed.

The three principal leaders of sections in Parliament, have proposed as many different plans for the composition of the Council.

Lord Derby proposes that it should be partly nominated by the Minister, and partly elected by a constituency.¹

Lord Palmerston proposes that it should be wholly nominated by the Minister, and that each member should hold office for only six years, unless reappointed.²

Lord John Russell proposes that it should be wholly nominated by the Minister, but that the members should hold office, like the judges, during good behaviour, that is, virtually for life.³

Which of these is the preferable scheme?

The answer depends on whether it is intended that the Council to be associated with the Minister, should be a check, or a screen.⁴ It will necessarily be either the one or the other.

If it is intended to be a screen, Lord Palmerston’s plan deserves the preference. The Council should be selected by the Minister, and should be dependent on him for remaining in office.

But if it is to be anything else than a screen, independence must be secured to it. For this purpose it is best of all, that either every member of Council, or a preponderant majority, should be elected. But if nominated, then it ought not to be in the power of any Minister to remove them.

If any one thinks that it is a matter of small importance whether the Council is independent or not, he must think that it is of small consequence whether there is a Edition: current; Page: [182] Council or not. For it is better there should be no Council at all, than a sham Council.

But to suppose that the existence and the independence of the Council are of little importance, is to overlook all the essential circumstances of the case. The good government of India will entirely depend upon the Council. If India is well governed, it will be because the Council will be capable of well governing it: for the Minister, as distinguished from the Council, usually will not.

All the requisites for the good government of India will be found in the Council, if rightly composed. None of the requisites are likely to be often found in the Minister to whom the tactics of party may transfer the Indian Department.

The members of Council may be, and are intended to be, chosen for their knowledge of India. The Minister is chosen because he has a Parliamentary position, either from his rank, or from his powers of speaking, which are more likely to have been exercised on any other subject whatever than on India.

The Minister, before he has had time to learn his business, is out of office. The Council may be, and ought to be, a permanent body.

Even while the Minister is in office, India will be one of the smallest of his concerns. The maintenance in power of the Ministry and the party to which he belongs, and the support of the general policy of the Ministry and of the party, will be at all times his principal objects. And these objects will not be much promoted by good government in India, nor much impeded by bad; because neither the English Parliament, nor the English public, will generally know anything either of the one or of the other.

There is one point in which the Minister’s position is supposed to be more favourable to good government than the position of the Council; responsibility. But there cannot be a greater error. The sort of responsibility to which the Minister is subject, is no security at all for good government. The only way to make responsibility of any use, is to impose the responsibility on the Council.

The Council, in the first place, has nothing to do with the general business of the empire. It is concerned with India, and India only. All its thoughts must be given to India. All the credit it can hope for, must be derived from India only.

The Council, moreover, is or ought to be a permanent body. Its interest, then, is identified with the permanent results of the mode in which India is governed. Its estimation, its position in opinion, perhaps its tenure of office, depend on permanent results. This is not the case with the Minister. He will have ceased to be in office long before the permanent results of his policy can disclose themselves; and when they do disclose themselves, it will hardly be remembered, and perhaps will hardly be distinguishable, whether his acts, or those of his predecessors or successors, are accountable for them.

The responsibility of the Minister, therefore, will not depend on the general results of his policy. He will seldom have either the credit of them if they are good, or the discredit if bad. What is called his responsibility to Parliament, will not be of Edition: current; Page: [183] the kind which would maintain him in well-doing. It will operate in a totally different manner. Its principal tendency will be, to make him afraid of doing anything which any person who has the ear of the House of Commons, opposes; or of opposing anything which any such person demands. His responsibility will not be to Parliament, but to a few speakers in Parliament. It will mean, liability to a debate in the House of Commons. To get rid of a debate, by every sort of concession, will be the course to which his responsibility will prompt him; for he will have no reason to expect that he will be the person to answer for the ultimate consequences of the concession. And on these occasions, it is always the people of India who will be sacrificed. The people of India have no means of interesting any one in standing up for them; while all who prey upon the people of India have. It may be said, the Minister may be a man of principle; he may disregard these considerations, and follow his own conviction of right. But if he does so, it will not be in consequence of his responsibility. It will be in spite of his responsibility. It will be because he cares less for his responsibility than for his duty.

It is believed that an examination of several recent instances in which the responsibility for measures has been transferred from a Board out of Parliament, to a Minister in it, would show, that the result has been not to accelerate, but on the contrary, to arrest improvement. The permanent Boards were identified with the general success of their administration. The Minister is only responsible for keeping on good terms with all individuals and all interests powerful enough to give him trouble.

Practical Observations on the First Two of the Proposed Resolutions on the Government of India

The Moral of the India Debate

the proceedings at home, consequent on Lord Canning’s proclamation,¹ have a most important bearing on the intended changes in the mode of administering India. They are a timely warning, how a Minister governs India, when he is under no check but responsibility to Parliament, and how Parliamentary responsibility, when really enforced, is likely to work.

In writing his despatch, Lord Ellenborough was in the position, in which the Minister for India will always be, under the proposed new constitutions.² He was without a Council: or rather, he passed over his Council. The despatch was in the Secret Department, that is to say, it was not brought before the Court of Directors. There was no compulsion on Lord Ellenborough to write on this subject in the Secret Department. It would have been perfectly regular to lay the papers before the Directors, and allow, or if necessary require them, to prepare a despatch to the Governor-General on the proposed proclamation. But no such despatch as Lord Ellenborough’s could have passed the Court of Directors; nor could such a despatch have been substituted for theirs by his authority as President, without giving rise to remonstrances and protests which no Minister would have liked to see produced in Parliament.

This despatch is therefore a fair specimen of what a Minister may do, when he is at liberty to disjoin himself from his Council. Let us now for a moment consider the despatch itself.

Observe, that it is the production of a man who is a favourable specimen of an Indian Minister. He is not such a man as we may generally expect, ignorant of India, appointed because a Cabinet office must be found for him, and because public opinion will not allow him to be placed in any other than that of Indian Minister. Again, the despatch was written with the very best intentions. Not only Edition: current; Page: [196] was its purpose good, but its principles were sound. Its principles were, to stigmatize confiscation, and condemn vindictive severity against a conquered enemy.

Wherein then did the despatch err? Its epigrammatic style was a minor fault, to which importance was only given by the publication of the despatch. Its errors were substantial and serious.

In the first place it gave Lord Canning no benefit from his well-ascertained and dearly-earned character for mercy. It did not allow the presumption drawn from the whole of his past conduct, to count in explanation of the particular act incriminated. If instead of firmly resisting the ravenous cry for blood, which by its effects has nearly rendered the good government of India impossible for a generation to come, Lord Canning had implicitly yielded to that savage howl, a worse interpretation could scarcely have been put on his intentions, than Lord Ellenborough hastened to put upon a single unexplained act of the man who had merited the designation of “Clemency Canning.”

But the despatch had another fault no less grave, and which would have been equally a fault, even if Lord Canning had been less deserving of consideration. In a time of emergency, it arrested a policy in mid-course. There could be no doubt that Lord Canning had made a deliberate choice among several modes of action, each of which had its peculiar advantages. Lord Ellenborough might think that he had not chosen the best; but unless he was totally unfit to be Governor-General, the course he selected must have had some considerable recommendations, some chances, to say the least, of attaining the object. To have instructed him beforehand not to adopt that course, would have been one thing, which might have been either wise or foolish. But to stop him when he had adopted it, and committed himself to it, but before it had produced its results, was to throw away the chances of good which that course held out, without gaining those of any other. It was as if the Minister, under the belief that it would have been better to clear Rohilcund before attacking Oude, had by telegraph recalled Sir Colin Campbell from the gates of Lucknow.³

Contrast with this the conduct of the Court of Directors.

A few days after the date of Lord Ellenborough’s despatch, but without being aware of it, they framed instructions to Lord Canning respecting the treatment of the Oude insurgents, which have been laid before Parliament, and which embodied all the sound and humane principles of the despatch, without its irritating language.⁴ As soon as they were made acquainted with the unmerited censure passed on Lord Canning, they recorded a vote of undiminished confidence Edition: current; Page: [197] in his merciful intentions.⁵ They thus combined the inculcation of what is admitted to be the right rule of conduct, with full justice to the functionary who was prematurely charged with having infringed it.

This is what took place under the calumniated double government. Lord Ellenbourgh’s despatch exemplifies the single government of a Minister responsible only to Parliament.

Let us now consider the second lesson to be derived from these proceedings; the light which they throw on the natural working of the boasted Parliamentary responsibility. For, through the rare accident that a Ministry is in office which does not possess a majority in the House of Commons, the present has happened to be the one case in a thousand in which the responsibility is real. The Minister really has lost office in consequence of his despatch.⁶ Now see at what price this result has been obtained.

In the first place, the greatest practical evil of the despatch arose from the publicity given to it. As long as its existence was a secret between Lord Canning and the Minister, it might have tied his hands in an emergency, but it could not have impaired his influence in India, and his justification might have arrived in time to change the reproof into approbation. But the publication of the despatch, which the Government itself condemns, and which all agree in regarding as the worst part of what has taken place, is the direct consequence of the accountability to Parliament. But for that accountability, Mr. Bright would not have asked for the despatch,⁷ nor would Lord Ellenborough have produced it. Neither was this premature publicity a casual consequence. It will be a natural and frequent one, when there is no check upon the administration of India except the control of Parliament. If the Minister is to be called to account there for the mistakes he commits in governing India, it must be done immediately. What Minister ever was censured by Parliament for the part he took in events long past and gone? His party opponents will seize on the subject while the public mind is intent on it; and unless he is strong enough to defy responsibility, all he has done or written will be published then, and will then become the text of criminatory or defensive declamation; while the effect of the publicity on the interests of India, or on the security of our empire there, will be secondary to the important question, whether one man, or another much the same as he, shall sit for a while on the Treasury bench.

The accountability of Ministers to Parliament was carried into effect in this instance by a debate of one night’s duration in the House of Lords, and three nights Edition: current; Page: [198] in the House of Commons.⁸ A full half of the discussion, and the whole of the result, turned not upon India, but upon whether Members of Parliament desired, for English purposes, that Lord Derby’s Government should or should not continue in office. Had it been known beforehand which of these was the desire of the majority, the issue of the debate could have been predicted. It issued in nothing at all, because neither party knew, and both shrunk from having it brought to the test of a division, whether there was a majority or not for turning Lord Derby out of office. This fortunate uncertainty has prevented great mischief. For if the debate had ended in any vote, that vote would have been understood in India either as a condemnation of clemency, or as a condemnation (followed probably by the resignation) of Lord Canning, the patron of clemency. Even as it is, the mischief is not trifling. On those great questions relating to the future government of India on which it was of the utmost importance that England should seem to be unanimous, she has been held forth as divided. Our enemies in Europe have been supplied with a fresh stock of calumnies against us from our own lips; while all Indian malcontents have had arguments put into their mouths which they themselves would never have dreamt of, and have been encouraged to hope that they may make or find a party in Parliament. All respect and fear of England as a nation will be materially weakened in the East; for, that there may be firm action notwithstanding divided councils, or that a government can be really formidable which allows itself to be bearded and its acts railed at to its face, is a truth which it requires a much higher civilization than that of Orientals to understand or credit.

All these things are necessary results of the play of the machinery through which Parliamentary responsibility operates. And if all other checks are taken away, these results may be expected more and more. No one denies it to be necessary that Parliamentary responsibility should exist in reserve; but the object should be, to dispense as much as possible with the need of actual recourse to it, by providing another restraint; a restraint acting before the mischief is done, not after, and producing its effect not by acrimonious controversy in the face of the world, but by peaceful discussion in a council-room. This can only be done by giving the Minister an independent Council, having the initiative of business, and by making it impossible for him to take any important measure without first listening to their advice.

A President in Council the Best Government for India

there are two political functions devolving on the British nation. It has to provide for its own government; and for the government of the much more extensive and populous countries which are dependent on it.

The majority however of its dependencies it has, wisely and necessarily, divested itself of the duty of governing; having found, after long trial, that it was unable to govern them satisfactorily. The only great outlying possession of the British Crown which is not now left substantially to its own government, is India.

The question is, in what manner Great Britain can best provide for the government, not of three or four millions of English colonists, but of 150 millions of Asiatics, who cannot be trusted to govern themselves. This is evidently a far more difficult task, than the one which the British nation acknowledges itself to have failed in. It is not likely that the very plan which has failed everywhere else, should be perfectly sufficient and satisfactory in the case in which the difficulties are the greatest. One would say, even before the subject is considered, that if success can be attained in such a case, it must be by some arrangement much more carefully and nicely adapted to the purpose.

Consider in what way the government of England itself is conducted. The English people may be supposed to know something of their own affairs. It may also be reasonably presumed that they feel an interest in them. They have every possible means of making their necessities, their grievances, and their opinions, known. When they have any wish in regard to their own Government, they usually demonstrate the wish in a thousand channels, by the press, petitions, and public meetings, before the Government takes the first step on the subject. And if the Government adopts any measure which the people, or even any fraction of the people, consider injurious to their interest, the first announcement causes it to be at once questioned in the press and in the House of Commons, and if general opinion is unfavourable there is time for the measure to be stopped before it has come into practical effect. These securities, as we know and lament, do not always prevent bad measures; but they do, for the most part, suffice to prevent inconsiderate ones. No Government feels it safe, in the home affairs of England, to take any step likely to lead to serious consequences, without previous weighing and deliberation. The checks do not operate so quickly in foreign affairs, and therefore it is generally felt Edition: current; Page: [202] that foreign, much more than home affairs, are conducted according to the individual and private preferences of the Minister, and much less according to either the interests or the wishes of the nation.

But in the government of India by a Parliamentary Minister, none of the checks exist at all. The public are never likely to hear of what is meditated, until actually done. When done, they seldom hear of it until the mischief, if there be mischief, is in part accomplished, and its reversal may be attended with greater evils than that of allowing it to subsist. Even when they do hear of it, they scarcely ever obtain, until long afterwards, the materials for judging whether the measure was right or wrong. There would be all these difficulties in controlling the Minister, even if the public and Parliament were deeply interested and intent on Indian affairs. But, on the contrary, all except a few are in general entirely without interest in the subject, because they have no knowledge of it, and because their time and attention are taken up by things nearer at hand. Among the few who do attend to the subject, neither the public nor Parliament have the means of distinguishing those who, from character and knowledge, have the best claim to be followed as guides. A Minister, probably very little acquainted with the questions which he is to decide, has nothing to compel him either to study them and deliberate on them in his own mind, or to attend to the suggestions of those who have already studied them, except a nominal responsibility to a body who have no means of accurate knowledge, and who are in general too indifferent to the subject to apply to it even such knowledge as they might obtain.

It is in circumstances like these that Parliament is asked to give over India to the sole government of a Minister, usually altogether ignorant of it when first appointed, and changed every two or three years. And it is gravely said that we need not fear to confide absolute power to absolute ignorance, in reliance that if the natural effects follow, Parliament will punish the Minister for his misconduct.

As it cannot be desired that the policy of the Indian Government should be a policy of ignorance, or that it should be changed every time a Minister is promoted or turned out; and as there is no public or Parliament to supply knowledge of Indian affairs, as knowledge of English affairs is in some measure supplied, the knowledge must be furnished to the Minister in his own office. There must be in the department itself a body which knows India, and is the guardian and conservator of the principles of administration which experience has approved, or which knowledge sanctions. Those who object to a Council constituted for the purpose, must intend that the clerks in the office should be this body. But the proposal to confide the habitual Government of India to persons whom the public generally do not know even by name, and never know whether their advice is taken or not, is rather remarkable as coming from the zealots for responsibility. The real friends of responsibility are those who would have this function exercised by a Council, who can be made responsible.

But a Council which the Minister need not consult, will be little better, if not worse, than leaving him with no other competent advisers than the clerks in his Edition: current; Page: [203] office. He cannot shelter his own responsibility behind the clerks. They cannot serve him as a screen. The Council may. And if it is left to him to determine their functions, that is the chief use to which he will probably apply them. In no one of the three plans brought before the House of Commons by its accustomed leaders,¹ is there any inducement given to the Minister for consulting the Council, if he has reason to expect that they will differ from him in opinion. Lord Ellenborough has very truly and laudably said, that the Minister will want their support, to protect India from the mistakes of Parliament and of English opinion.² But India needs protection also against the Minister’s own mistakes. Parliament, however misled, can only exert its power slowly, and after discussion: the Minister, in half an hour, may issue a despatch, the evil consequences of which years may not suffice to cure. If the Council is fit to support the Minister when he is right, it will be fit to check him when wrong. And its support is not likely to carry any weight when it agrees with him, if it is not allowed to differ, or is not asked its opinion unless willing to agree.

To make the Council a real security for good government, all business which requires deliberation, or admits of difference of opinion, ought to be transacted by the Minister in Council. It is on this principle that the British Government in India itself is constructed, and it works most effectively. The Governor-General, or the Governor of a Presidency, performs his manifold duties in conjunction with Councillors, not of his own nomination. They are appointed, theoretically, by the same authority which appoints himself; but practically by a different authority, the Governor-General or Governor being in fact selected by the Queen’s Minister, the Members of Council by the Court of Directors. As an ordinary rule, all questions are decided in Council according to the opinion of the majority; but their opinion is not binding on the head of the government. When he pleases, he can, recording his reasons, set aside the opinion of the Council, and act on his own sole responsibility; but he must go through a particular form for that purpose, which gives a deliberate, and in some degree a solemn, character to the act. On this system the members of Council feel themselves a real and substantial element in the government; their best thoughts are given to every question which presents itself, their opinion is recorded and has its just weight, while they have no power of authoritatively opposing themselves to the deliberate opinions and purposes of the head of the government.

The same principle, applied to the home administration, would give probably the Edition: current; Page: [204] best organ of Government for India, which circumstances admit of. The authority should be that of the President, but of the President in Council. The deliberation should be as much that of the whole body, as if the body and not the head had the power of deciding in the last resort. The general practice in that case would probably be, to decide, (as at Calcutta,) according to the sense of the majority, the President’s vote only counting for one. But he would have the power, after he had consulted his Council, on declaring his intention in a prescribed form, and recording his reasons, to act on his own separate opinion in opposition to theirs. According to this plan, the ordinary conduct of business falls by the natural working of things, without any special provision for the purpose, into the hands of those who know most of the subject; and the minds which really determine what is done, are associated, as they ought to be, in the responsibility. Yet the Minister’s responsibility, even for the ordinary business, would never be felt to be impaired, no more than the responsibility of Lord Wellesley or Lord Dalhousie was impaired by the advisers with whom they were associated; while the Minister would be subjected to an additional and special responsibility, when he chose to set aside his Council. And this is surely right. If there be any case whatever in which deliberation, and a sense of responsibility, are peculiarly necessary, it is when one man, often not qualified by special training, assumes to be a better judge of a subject, than a body of men expressly selected for their knowledge of it, and their competency to advise on it.

Letter from the East India Company to the President of the Board of Control

1. Although the Bill which has been newly brought in by Her Majesty’s Ministers “for the better government of India”¹ has not yet been formally communicated to the Court of Directors, the Court, influenced by the desire which they have already expressed to give all aid in their power towards rendering the scheme of government which it is the pleasure of Parliament to substitute for the East India Company as efficient for its purposes as possible, have requested us to lay before your Lordship, and through you before Her Majesty’s Government, a few observations on some portions of the Bill.

2. Having in documents which have been presented to Parliament expressed their sentiments fully on all the general features of the subject,² the Court refrain from offering any further arguments on points upon which the Government and the House of Commons seem to have pronounced a decided opinion. The joint government of a minister and a council, composed in majority of persons of Indian experience, deriving their appointments only partially from ministerial nomination, and all of them holding office on a tenure independent of the minister, is a combination which fulfils, to a considerable extent, the conditions of a good organ of government for India. The Court would have much preferred that in the constitution of the Council more extensive recourse had been had to the elective principle. But if they cannot hope that this course will be adopted, they see many advantages in the provision by which one-half the number, instead of being named by the Government, will be selected by a responsible body, intimately connected with India, to whom the qualifications of candidates will in general be accurately known, and who will be under strong inducements to make such a choice as will tend to increase the credit and consideration of the body.³

3. With regard to the qualifications prescribed for members of council, the Edition: current; Page: [208] Court desire to offer a suggestion. Her Majesty’s present Government have, on many occasions expressed a desire to secure the Crown appointments against the evils of abuse of patronage. The security against such abuse has hitherto consisted in the strict limitation of the appointments to persons who have served a considerable number of years in India. While the Court fully agree with Her Majesty’s Government in recognising the desirableness of an English element, it does not seem to them advisable that this element should extend to nearly half the Council, only a bare majority being reserved for persons of Indian experience. Knowledge of India is, after all, the most important requisite for a seat in the Indian Council: while it is chiefly in the English nominations that there is any present danger lest appointments should be obtained through political or parliamentary influence; from which influence, unless introduced through that channel, the Council, like the Court of Directors, may be expected to be altogether free. The Court, therefore, recommend that the qualification of ten years’ Indian service or residence⁴ be made imperative on at least two-thirds instead of a mere majority of the fifteen members of council. They also think it questionable if the interests of India will be promoted by the exclusion of the whole of the Members of the Council from seats in Parliament.⁵ These are the only modifications which we are requested to suggest in the provisions respecting the composition of the Council.

4. But we lament to see that the clauses which define its functions are liable to far greater objections. From the sentiments which have been publicly expressed both by your Lordship⁶ and by other Members of the Administration, as well as from the terms of clause 19, which declare that the Council, under the direction of the Secretary of State, is to “conduct the business transacted in the United Kingdom in relation to the Government of India and the correspondence with India,” the Court are persuaded that Her Majesty’s Government regard the Council, not as a body without regular functions or duties, whom the Minister is at full liberty habitually to disregard, but as a substantive part of the working organ of government. It is therefore incumbent on the Court to represent to your Lordship that the details of the Bill not only do not carry out this conception, but would appear to be inconsistent with it.

5. It is hardly necessary to remark that the Council cannot “conduct the business transacted in the United Kingdom in relation to the Government of India and the correspondence with India,” unless provision be made for their meeting regularly at short intervals to dispose of the business as it arises. The Bill, however, makes no provision for any regular or periodical meetings of the Council, but leaves the time of convening it, and even the convening it at all, to the entire discretion of the Secretary of State, saving the case necessarily exceptional of a requisition in Edition: current; Page: [209] writing by five members, which would impose on the requisitionists the necessity of appearing to place themselves in a posture of opposition to him.⁷

6. By the 16th clause the Council are denied all power over the establishment, beyond the first appointments to junior clerkships and inferior offices, all promotions being made by the Secretary of State alone, and the appointment of secretaries or assistant secretaries and heads of departments being wholly reserved to him. While the officers, including those whose duty it is to prepare drafts of despatches, are thus entirely withdrawn from the control of the Council; the Bill does not even provide that the drafts, when prepared, shall, as a matter of necessity, be considered and discussed in Council. It only provides that they shall, seven days before being sent to India, be placed in the Council room for inspection by the Members, to afford them an opportunity for the invidious office of recording objections; and this power of dissent from a measure or a document already sanctioned by the Minister, is the only positive function which the Bill secures to the Council.⁸ It is obvious that the same comments which, if made in the early stage of the proceedings, before the Minister has made up his mind, have the character of cordial and zealous co-operation, will, if delayed until his intentions have been declared, assume the aspect of opposition or remonstrance, and are therefore much less likely either to be made at all, or if made, to be of any efficacy, unless by way of a protest.

7. The Court submit that the only mode by which the direct action of the Minister and the substantive existence of the Council as a co-operating body, can be brought into complete harmony, would be by enacting that all ordinary business, and as far as possible all business, shall be transacted by the Minister in Council. A perfect and most successful example of this mode of transacting business is afforded by the Local Government of India. All business is as a matter of course transacted by the Governor-General, or Governor in Council, and, as a general rule, the decision is according to the vote of the majority. But the Governor-General, or Governor, has the power of setting aside the decision, on assuming the formal responsibility and recording his reasons. No inconvenience of any kind has ever been experienced from this arrangement; it has never been found either to hamper the discretion, or in any degree impair the responsibility of the head of the Government. It cannot be doubted that the Minister for India would find the same advantage from this principle in superintending the Administration, which a Wellesley and a Dalhousie found in conducting it in all its complicated details.

8. The Court see no reason for withdrawing from the deliberation and knowledge of the Council even such subjects as are at present disposed of through the Secret Committee. It is their conviction that the power of carrying into effect Edition: current; Page: [210] measures of the highest importance without the advice, or even the knowledge of the Court of Directors, has been the source in times past of some of the greatest errors, and of the greatest calamities, which are recorded in our Indian history; and they earnestly recommend that a barrier be raised against the future exercise of this dangerous power, and that since it may be presumed that the Council will possess the confidence of Her Majesty’s Ministers, the right and duty of advice be vested in the Council on all subjects of Indian administration, without excepting, as hitherto, from their cognizance, some of the most important of all.

9. The Court are of opinion that, on all questions regarding expenditure, the Council should have more than a consultative voice, and that these questions should be an exception to the power which the Secretary of State will in all other cases possess, of setting aside their opinion. The disposal of the entire revenues of India by the mere fiat of a minister, freed from the necessity of the assent of any co-ordinate authority, would, the Court conceive, be neither consistent with the principles of the constitution, nor conducive to the good administration of the Indian finances. The propriety of allowing to the Council in this one department a negative voice, was recognised in one of the Bills introduced into Parliament,⁹ and the omission to include such a provision in the present Bill is, the Court hope, only the effect of inadvertence.

10. The Court think it of great importance that the Council should be associated with the Minister in deciding on appointments to the higher as well as the inferior situations of the establishment, and on the position and the remuneration of the officers. They deem this important, both for securing the due influence of the Council over the establishment, and for promoting the legitimate interests of the officers themselves, with whose merits and services the Council, being a permanent body, is likely to possess a more intimate and detailed acquaintance than will generally be possessed by the Secretary of State.

11. The Court would also suggest that the Vice-President, who is to preside over the Council in the absence of the Secretary of State, should be chosen periodically by the Secretary of State in Council, but not by the Minister alone, it being of importance that this officer should possess the confidence of the Council, and should be their representative with the Minister in the intervals of their sittings.

12. There are other provisions not connected with the functions of the Council which the Court greatly regret to see transferred from the former into the present Bill. By one of these, forming clause 29, the Governments in India itself are radically altered in constitution, and their most characteristic excellence destroyed. Instead of a Governor-General or Governor and an independent Council, appointed by the authority to which he is himself responsible, the Government is now to consist of the Governor-General or the Governor, and advisers selected by himself. The Court have reason to believe that this proposal has met with Edition: current; Page: [211] unanimous reprobation in India, and they would regard its adoption as one of the most fatal blows which could be struck against good government in that country. The association of the head of the government with advisers not of his own choice, but chosen for him by superior authority, has given to a government, necessarily absolute, an advantage rarely possessed by absolute governments, and the absence of which in India would be peculiarly mischievous; that of free, unrestrained, and conscientious discussion and deliberation. This advantage would be entirely sacrificed if the head of the government selected his constitutional advisers. Advisers who will merely echo his own opinions he can never want; what he is in need of are advisers who will think for themselves; who by the collision of judgments will cause subjects to be examined in a variety of lights; who will correct his mistakes, complete what is imperfect in his information, and whose very errors will be useful by being of a different kind from his own. Such are not the colleagues whom, even with the best intentions, that high functionary can safely be relied on for selecting; not to mention that for some time after his first arrival he will not be in a condition to distinguish such persons, even if he looks out for them.

13. The 48th clause proposes the appointment by the Crown of an auditor of the home accounts; a provision which, if carried into effect, must materially interfere with the independent action of the new government, and the necessity of which is completely obviated by the existing system both of pre-audit and post-audit, which is recognised and apparently approved in the 47th clause of the Bill, and which system would be greatly weakened by the introduction of a distinct auditor, acting under another authority.

14. The Court regret that it should be contemplated by the 50th clause to send a Commission to India to inquire and report to Her Majesty, on many important branches of Indian administration, passing over the local governments. It is impossible that such persons, however judiciously chosen, should collect in three years a tithe of the information which already exists so abundantly on the records of the Home Government, and is daily added to by the labours of the ablest functionaries in India; while their appearance in the country will be considered as opening up for re-consideration all the vital questions included in “the collection, receipt, and management of the revenues,” as well as “the application of such revenues and public moneys in India:”¹⁰ the first, embracing the whole subject of the landed tenures and proprietary and possessory rights of the agricultural population, the other, the entire economy of the public resources, whether in relation to civil or military administration, public works, the contraction or liquidation of debt, or any other of the multifarious matters which require to be decided by a finance minister. The Court are as desirous as Her Majesty’s Government that all practicable and well devised improvements should be made in Edition: current; Page: [212] these branches of administration, and many such have been, and are even now being, made; but they are convinced that the proper mode of making these improvements is through the Governments on the spot, by whose instrumentality alone India can be governed or held, and whose ascendancy it is of the utmost importance to maintain, by making all orders and all benefits which proceed from the supreme authority, flow through them as the intermediate channel.

15. The Court are also apprehensive that the effect of clause 34 may be to remove from the Military College at Addiscombe the education of cadets for the engineers and artillery. That College has, during a long course of years, been most successful in training highly qualified cadets for the scientific branches, a result greatly attributable to the earnest competition for engineer and artillery appointments which exists within the College amongst the cadets appointed to it; and the Court would consider any change which involved the transfer of the education for these branches from the Military College to private establishments as being injurious to the public service.

16. These are the observations which, by the desire of the Court, we take the liberty of submitting to your Lordship, and we hope to be favoured with a communication from your Lordship of the intentions of Ministers on the several points hereinbefore adverted to, at a sufficiently early period to admit of their taking any further measures which may be necessary for bringing their views before Parliament.

Maine on Village Communities

this book is an important contribution to a branch of knowledge in which the author is as yet unrivalled—the philosophy of the history of institutions. It pursues into ulterior developments (at least in one great department, that of property) the line of research and speculation so brilliantly commenced in Ancient Law: its Connection with the Early History of Society, and its Relation to Modern Ideas.¹ It is superfluous at this time of day to say anything either in the way of information or of recommendation, concerning a treatise which has already become classical; but we may remark that its title indicates the double aspect of the important vein of thought which it has opened—the historical aspect, and the practical: the light which it throws on the ancient condition of mankind, and the intimate connection which it establishes between “the early history of society” and “modern ideas,” through the connection of both of them with “ancient law,” the great transmitter (next to religion) of influences from a barbarous age to a civilised one. Political thinkers, who at one time may have been over-confident in their power of deducing systems of social truth from abstract human nature, have now for some time shown a tendency to the far worse extreme, of postponing the universal exigencies of man as man, to the beliefs and tendencies of particular portions of mankind as manifested in their history. But if so much weight is attached to these historical characteristics, it is most essential to inquire how they came to be what they are; which of them are grounded in permanent necessities of humanity, and which are but relics of facts and ideas of the past, not applicable to the present. In this point of view, the historical truths brought into so strong a light by Mr. Maine have more than an historical value. Though assuredly not written with a view to any such purpose, his Ancient Law is a most powerful solvent of a large class of conservative prejudices, by pointing out the historical origin not only of institutions, but also of ideas, which many believe to be essential elements of the conception of social order.

The lesson is not less instructive, when the result of the researches is to prove, not that institutions and ideas belonging to past times have been unduly prolonged into an age to which they are unsuitable, but that old institutions and ideas have been set aside in favour of others of comparatively modern origin. For this result, as much as the other, strikes at the tendency to accept the existing order of things as Edition: current; Page: [216] final—as an indefeasible fact, grounded on eternal social necessities. The question is opened whether the older or the later ideas are best suited to rule the future; and if the change from the one to the other was brought about by circumstances which the world has since outgrown—still more if it appears to have been in great part the result of usurpation—it may well be that the principle, at least, of the older institutions is fitter to be chosen than that of the more modern, as the basis of a better and more advanced constitution of society. A question of this nature in regard to property in land is raised by Mr. Maine’s new work; which has clearly shown that the absolute ownership, which constitutes the idea of landed property as commonly conceived in England, is both modern as to time and partial as to place.

Having been called, subsequently to the publication of Ancient Law, to take part in legislating for a country far less widely removed than civilised Europe from that early state of society which it is usual to call “primitive,” Mr. Maine found that the state of things in regard to landed property which exists in India wherever it has not been disturbed by British legislation, is strikingly in accordance with that which recent historical investigations prove to have once existed in what are now the most advanced communities. The obstinate persistence of custom in India makes that country “the great repository of verifiable phenomena of ancient usage and ancient juridical thought” (p. 22), well worth studying, therefore, by all students of human nature and history, and by all English lawyers who consider “the study of historical and philosophical jurisprudence” not alien to their pursuit. The value of Mr. Maine’s book for this purpose is the greater, since much of his materials has not yet found its way into books, but is derived from the “large and miscellaneous official literature” in the records of the Indian Government, and from “the oral conversation of experienced observers who have passed their maturity in administrative office.”

Of these the Village Mark was the only one of which the several portions were individual property in the modern English sense. The ownership of the Common Mark was “a strict ownership in common, both in theory and in practice. When cattle grazed on the common pasture, or when the householder felled wood in the common forest, an elected or hereditary officer watched to see that the common domain was equitably enjoyed.” (P. 79.) But it will be more of a surprise to many readers to learn that the arable land also was held and cultivated on the same principle of common ownership. The Arable Mark “seems always in theory to have been originally cut out of the Common Mark, which, indeed, can only be described as the portion of the village domain not appropriated to cultivation” [p. 79]; and the Arable Mark “was occasionally shifted from one part of the general village domain to another” (p. 81).

The evidence seems to show “that the original distribution of the arable area was always into exactly equal portions, corresponding to the number of free families in the township. Nor can it be seriously doubted, upon the evidence, that the proprietary equality of the families composing the group was at first still further secured by a periodical redistribution of the several assignments.” (P. 81.) This periodical redistribution has continued to our own day in the Russian villages, and “there appears to be no country inhabited by an Aryan race” in which traces of it do not remain [p. 82].

It is to “the school of German writers, among whom Von Maurer is the most Edition: current; Page: [218] eminent” (p. 21), that we are indebted for the establishment of this important portion of the ancient history of society in relation to the Teutonic countries. Its extension to England is mainly the work of Professor Nasse, of Bonn, whose valuable treatise is about to be made, by translation, conveniently accessible to the ordinary English reader.³ But the simple statement of the ancient practice of Teutonic cultivation brings at once to the mind of any one acquainted with English rural usages, the traces of a similar village constitution in England. The remains of the former collective ownership of the lands of a village still linger among us under the denominations of Common Fields and Lammas lands.

Our law books trace all landed tenures in England to a feudal grant. From such grant, either actual or presumed, they all technically proceed; and the law writers seldom trouble themselves with anything anterior. But there were landed possessions and landed rights in England before there was feudality. The feudal lords were the successors of former holders; and in order to know what the lord could either claim for himself or grant to others, it is necessary to know whose rights he succeeded to. In this there is now no obscurity. The feudal lord took the place of the collective village community; the Mark system passed by transformation into the Manorial. The rights which had belonged to the village as a collective body, became the rights of the lord; the customary rights which the several households of the village could claim from the collective body, were not lost, but remained valid against the lord. The Common Mark became the lord’s waste; but the village families retained their rights of pasture and of turf or wood cutting over it. Of the Arable Mark, a great though a gradually decreasing portion continued to be cultivated under much the same rules as before.

The minutely exact agreement of this description with what has been ascertained by quite independent evidence to have been the ancient custom of village communities in the countries from which our ancestors came, leaves no doubt that originally ownership of land was conceived in the same manner in both cases. And the rights which still survive in our own country over the lands which were once the collective property of the village—the rights of commoners over the common land, and of those who are entitled to the joint use of Lammas lands or common fields—are older than any manorial rights, older than any grants from a feudal^a superior, and can claim more of the sacredness which the friends of existing land institutions consider to attach to prescription.

How dear these rights were to the people is strikingly shown by their persistency through many centuries, notwithstanding the powerful causes which have been at work during the whole time for their destruction. Beneficent and noxious influences conspired to favour the conversion of collective into individual property. On the one hand, the rigid customs which prevailed in the cultivation of the common fields provoked opposition by their tendency to perpetuate a bad system of agriculture; and as to the waste, then occupying so large a portion of the soil of the island, it was thought to be for the public good to promote almost any arrangement by which it could be brought into cultivation. This was the honourable side of the movement. There is a deeply disgraceful side which remains to be mentioned. The great landed proprietors, and owners of manorial rights, were the rulers of the country. From 1688 downwards they ruled it through the Parliament; but before the Parliament became absolute ruler of the State, each of them ruled his own neighbourhood with a power almost above legal control. Edition: current; Page: [220] Among the consequences were perpetual encroachments by the great landholders, not only on the customary rights of the people in the land, but even on their separate properties: encroachments sometimes by abuse of the processes and forms of law, sometimes altogether lawless. ^bIn the words of the great Sir Thomas More, tenants were “got rid of by force or fraud, or tired out by repeated injuries into parting with their property.” Bishop Gilpin “complained that the great landowners scrupled not to drive people from their property, alleging that the land was theirs, and turning them out of their shelter like vermin.”^* When even the separate properties of the peasantry were thus treated, no wonder that their rights of common were taken from them, in many cases without any compensation.^b This dreary history is not to be found in Mr. Maine’s work, but it has been related in other books, and recently by Mr. Cliffe Leslie, in his instructive volume on the Land Systems of England, Ireland, and the Continent.

Yet, notwithstanding the constant tendency of these customary rights to extinction, sometimes by usurpation and sometimes by voluntary agreement, the great extent of them as late as the early part of the present century is attested by Marshall, a writer of that period, of high authority on the statistics of agriculture, and whose facts have been largely used in the work of Professor Nasse. According to Marshall, “In almost all parts of the country, in the Midland and Eastern counties particularly, but also in the west—in Wiltshire, for example—in the south, as in Surrey, in the north, as in Yorkshire,” there were still, in his time, “extensive open and common fields. Out of 316 parishes in Northamptonshire, 89” were in this condition; “more than 100 in Oxfordshire; about 50,000 acres in Warwickshire; in Berkshire, half the county; more than half of Wiltshire; in Huntingdonshire, out of a total area of 240,000 acres, 130,000 were commonable meadows, commons, and common fields.” (Maine, pp. 88-9.)⁴ Mr. Maine adds: “The extent of some of the fields may be inferred from the fact, stated to me on good authority, that the pasturage on the dividing baulks of turf, which was not more than three yards wide, was estimated in one case at 80 acres” (p. 89). Since that time the commonable and common lands have undergone constant and rapid diminution, first by private Acts of Parliament, and at a still more accelerated pace since 1836, by inclosure, agglomeration, and exchange, under the Common Fields Edition: current; Page: [221] Inclosure Act of that year,⁵ and under the general powers of the Inclosure Commissioners;⁶ “but both common fields and common meadows are still plentiful on all sides of us. Speaking for myself personally,” says Mr. Maine, “I have been greatly surprised at the number of instances of abnormal proprietary rights, necessarily implying the former existence of collective ownership and joint cultivation, which comparatively brief inquiry has brought to my notice.” (Pp. 87-8.)

It was not Mr. Maine’s business, in a purely historical and jurisprudential work, to deduce practical inferences from these facts; nor have we any knowledge^c whether he would coincide in the inferences which we ourselves draw from them. But there are certain truths, of a very important character, which the facts we have abridged from Mr. Maine’s work seem to us to support and illustrate very impressively.

They show, first, that even in our own history property in land has not been, and is not, one simple idea, one conception of rights always the same; but that different systems of property in land have existed, and even coexisted, both in this and in other countries; and that, by an operation not sudden, but extending over our entire history since the Norman Conquest, we have been gradually transforming one of these systems into another:

That the system under which nearly the whole soil of Great Britain has come to be appropriated by about thirty thousand ^dfamilies—the far greater part of it by a few thousands of these—^d is neither the only nor the oldest form of landed property, and that there is no natural necessity for its being preferred to all other forms:

That if the nation were to decide, after deliberation, that this transmutation of collective landed ownership into individual shall proceed no further, and that the various rights of the public or of particular neighbourhoods which in many cases still limit the absolute and exclusive control of the land by the proprietor—rights generally of older date than his—shall no longer be allowed to be extinguished, to the detriment of posterity; the nation, in so deciding, would not overpass the limits of its moral right. Nay, further, that if the nation thought proper to reverse the process, and move in the direction of reconverting individual property into some new and better form of collective, as it has so long been converting collective property into individual, it would be making a legitimate use of an unquestionable moral right; subject to the moral obligation which arises whenever rights sanctioned by established law are annulled by an act of authority, of satisfying all just claims to compensation:

That, having thus a full right to retrace the steps which it has taken under the Edition: current; Page: [222] predominant influence of the class of large landed proprietors, the nation ought to take into serious consideration which among the many footings on which the right of landed ownership might be placed, is the one most beneficial to the whole community, with a view to adopting, with the precautions justly demanded by vested interests, that most beneficial system. And, in the meantime, it should absolutely suspend all further proceedings in the old direction—all further conversion into the absolute property of individuals, of land which is now only their limited or qualified property, or which is not the private property of individuals at all. In particular, the inclosure of commons should be absolutely discontinued, until the principles on which it can rightly take place have been deliberately reconsidered, the classes who have been the chief sufferers by what has hitherto been done being included in the deliberation.^e

This is the moral which we deduce from that part of Mr. Maine’s researches which relates to the ancient landed institutions of England. The part which relates to India gives a practical warning of an even more urgent nature; since it shows that we have done, and are still doing, irreparable mischief, by blindly introducing the English idea of absolute property in land into a country where it did not exist and never had existed, and into which its introduction could only be effected by trampling upon the rights of all except some one of the classes which, by the customs of the country, shared among them the right of using and disposing of the soil. This injustice has been done by the English rulers of India, for the most part innocently, from sheer inability to understand institutions and customs almost identical with those which prevailed in their own country a few centuries ago.

In the purely native governments of India, property in land has never emerged from that primitive state in which absolute and unconditional ownership by individuals had no existence. Various beneficial interests existed in the soil. There was, first, the interest of the sovereign, who had at least one attribute of an universal proprietor; he was an universal receiver of rent. The share of the produce to which he was entitled, and which formed the bulk of the public revenue, was nominally limited by custom, but practically, in most cases, only by the impossibility of extracting more. Whether we call it rent or land-tax, it was usually of such an amount as to leave no surplus to constitute rent in the hands of any private individual, except those to whom, by a not uncommon act of favour, the sovereign made a grant of the revenues of a village or district. At the opposite extremity of the social scale were the actual cultivators. In some cases the whole of these, in others only certain classes of them, had a right to retain their holdings as long as they paid the Government demand. Between these co-proprietors (as they may be called), the sovereign and the cultivator, there were intermediate classes who had rights, of greater or less extent, and who were often extremely different in Edition: current; Page: [223] different places. But there was nobody who could be called a proprietor in the absolute sense of English law. The English, however, when they came into possession of the Bengal provinces, assumed, as indisputable, that there must be an absolute proprietor of all land, the only question being how to find him; and the indication of ownership by which they were at first guided was the collection of rent. In the provinces over which the British dominion was first extended, this attribute was exercised by officers of Government, each of whom, at the head of an armed force, collected the rents of a particular district; and who were mostly hereditary, for all things tend to become hereditary in the East. In these officers the English rulers thought they had found the proprietors of the soil. It was not considered, that these collectors of rent were bound to pay over the whole of their collections to the State, except a commission of ten per cent deducted as their own remuneration. In spite of this, they were declared absolute owners of the land, and received a pledge that the Government demand of revenue from them should never be increased. The cultivating classes became their tenants. A reservation was made of the right of the tenants to be protected against eviction while they paid the customary rents; but the distance and expensiveness of the only courts of justice which for a long time were provided, put it out of the power of the cultivators to enforce this right. In the words used many years later by a British-Indian judge, the rights of the Bengal ryots (or peasants) passed away sub silentio.⁷ They sank generally into the miserable condition of Irish cottiers—rack-rented tenants-at-will. What little respect was anywhere paid to their rights or interests resulted solely from the still partially surviving influence of custom on the minds of persons whom the law had exempted from any necessity of observing it.

By degrees India began to be better known, and its English administrators came to be aware of the error which they had at first committed. They found that, in mistaking the collectors of revenue for the landed proprietors, they had overlooked the village communities; which, indeed, in the provinces first acquired, had almost become extinct, but in many of the more recently acquired British possessions still retained a substantial existence, and whose rights in the land could not without great injustice be ignored. The conclusion which was come to by the administrators of these later acquisitions was that the village communities were the real proprietors. And it is certain that, in adopting this opinion, they were nearer to the truth than they would have been in supposing absolute ownership to reside anywhere else. Further experience, however, made them aware that village communities were of very various composition, and that they, no more than any other persons or bodies, were absolute proprietors. Their rights, like those of all others in a country in which custom for the most part decides what is the law, were limited and hemmed in by the equally positive customary rights of other people. When this truth dawned on the most eminent Indian administrators, it taught them Edition: current; Page: [224] at first the proper lesson. They made it their business to ascertain, by oral and documentary evidence on the spot, not who was proprietor of the soil—a question idle and unmeaning in the country with which they had to deal—but who were all those who had any rights over it, and what those rights were. When they had, with more or less completeness, ascertained this, they endeavoured to give equal protection to all these rights. These rational opinions and rational practices prevailed in the counsels of the Indian Government for about two generations. But of late official opinion has taken an unfortunate turn in the opposite direction.

In England, for some time past, the idea of absolute property in land has been sensibly weakened, and the tendency of the time is progressively inclining towards the opinion that proprietary rights in the mere raw material of the globe should not be absolute, but limited. While, however, English opinion has thus been advancing, official opinion in India, which had been much ahead of it, has retrograded. The change may be roughly dated from the time of the Mutiny. The feeling engendered by that calamitous event, of the unstable foundation on which our power in India rested, produced a strong impression of the necessity of conciliating the natives; and, as usual in such cases, “the natives” were taken to mean those small classes who were most conspicuous, who had the greatest opportunitites of making themselves heard, and the greatest power of being troublesome. Before the Mutiny it had been the policy of our Government, not certainly to ignore or disregard the rights or vested interests of the so-called higher classes, but to construe them strictly, when they conflicted with the interests of the mass of the cultivating population, towards whom, it was rightly thought, were the first and most binding duties of our Government. Since the Mutiny a reaction has set in, which cannot be better illustrated than by the instance of Oude. We had taken this province from its Mahomedan Government and annexed it to British India,⁸ in consequence of the anarchy occasioned by the lawless usurpations and disorderly excesses of the Talookdars—a class of functionaries of very various origin, who collected the Government dues from large districts, and entertained for that purpose bodies of undisciplined mercenaries, which made them practically uncontrollable by the feeble native government. By means of these troops the country was kept in a state of bloodshed and warfare, the most high-handed violence was practised towards the people of the country, and the landed possessions of the Talookdars were swelled by the dispossession, and sometimes the extermination, of entire families of landholders. These Talookdars were naturally exasperated by the annexation, which deprived them of their misused position; they joined, and they were the only powerful class or body in all India that did join, with the mutineers. We subdued them, and what did we then proceed to do? We admitted these rebellious oppressors to engage with our Government for Edition: current; Page: [225] the revenue; we declared them proprietors of the soil, and delivered over the cultivating classes into their hands: and it is with great difficulty that, some years after, an Act was got passed, making some small reparation to a portion of the dispropertied classes, by giving to tenants who could prove a certain number of years’ possession a guarantee against eviction.⁹ In other parts of Upper India, those to whom the absolute ownership has been conceded are the village communities; but there has been a growing disposition to restrict, instead of enlarging, the number of the inhabitants who are considered entitled to communal privileges. Even at an earlier period, single families from which by custom the headman of the village had been taken, had not unfrequently been recognised by our Government as sole owners. The remainder of the cultivators, including many who at the first settlement had been admitted, as proprietors, to enter into engagements for the Government revenue, have been reduced to the condition of tenants-at-will. There is great danger that if this tendency of opinion continues, the whole of the northern provinces^* will be possessed, for the first time in India, by a comparatively small body of absolute owners, many of them peasants, with a vast population under them of tenants-at-will. And this—one of the greatest social revolutions ever effected in any country, with the evil peculiarity of being a revolution not in favour of ^fa^f majority of the people, but against them—its supporters defend in the name of civilisation and ^gpolitical economy; though if there is a truth emphatically taught by political economy, and from which no one who has the smallest tincture of the knowledge of it withholds his assent, it is that the status of an agricultural tenant-at-will is intrinsically vicious, and in a really civilised community ought not to exist.

The exposition given by Mr. Maine of the real nature and history of agricultural customs in India, read, as it is sure to be, by all intelligent Indian administrators, and, we trust, by those who are in training for Indian administration, is well adapted to check this baneful reaction. We quote, both as a characteristic specimen of this part of the work, and for the important lessons it affords, his exposition of Edition: current; Page: [226] the manner in which, even in the absence of positive intention on our part, the introduction of our Government conferred upon those whom we recognised as representatives of the locality, powers and rights which enabled them to override those who were their co-partners in the land.

These passages, greatly as space has made it necessary to curtail them, will help to show to the intelligent reader (over and above the example they afford of the singularly artificial and variable nature of the idea of ownership) what great difficulties the English Government has to encounter in endeavouring to do justice to each and all in India: and how great injustice may be, and has been, caused by the fact that its mere appearance on the scene destroys the balance of existing social relations; that “when an official appointed by a powerful Government acts upon the loose constitution of a primitive society, he crushes down all other classes, and exalts that to which he himself belongs” (p. 151).

Our desire to profit, as much as our space permits, by the practical lessons derivable from Mr. Maine’s book, has led to our doing but scanty justice to its remarkable merits, both as a literary work and as a series of investigations of the ancient history of human society. But we must at least not omit to call attention to the concluding lecture;¹⁰ in which, from the facts of Indian experience, a flood of light is thrown upon the ideas of an early state of society respecting commercial transactions between man and man, and especially respecting prices and rents; and upon the widespread and long-enduring influence of custom in the determination of payments, as well as upon the particular points at which competition, as a rival principle, first comes in. Our space does not admit of our giving a summary of this lecture, and we can only refer the reader to the original, confidently promising to any one who studies it a rich reward.

The same hindrance prevents us from doing more than merely referring to the very few points on which we find ourselves dissenting in any respect from Mr. Maine, and which are questions of definition and classification rather than of fact. Did space permit, we should have something to say in behalf of Bentham and Austin¹¹ (of whose extraordinary merits as philosophic jurists Mr. Maine shows a full appreciation) on a point on which Mr. Maine differs from them (pp. 67-8);¹² Edition: current; Page: [228] and again, in defence of political economists generally, ^hagainst^h a charge brought against them in the concluding lecture (p. 196), which we do not think will stand examination.¹³ But these small differences of opinion, though worth noting, are not, at least on the present occasion, worth entering into; and we will conclude by once more congratulating our readers and ourselves on the appearance of a second highly instructive work (to be followed, we hope, by many others) from an author so eminently qualified for the department of philosophical history which he has made his especial domain.