Doss v. Secretary of State for India in Council (1875), L. R. 19 Eq. 509, was a case arising out of the extinction of a sovereign power in India, though not in consequence of hostilities. It was a suit brought in the English Court of Chancery by creditors of the late King of Oudh against the Secretary of State as his successor. It was held that as the debt had been incurred by the late king in his capacity as sovereign, and could not have been enforced against him as a legal claim, it did not, upon the annexation of the kingdom of Oudh, become a legal obligation upon the East India Company, and therefore was not, by the Act of 1858, transferred as a legal obligation against the Secretary of State; and on this ground a demurrer to the bill was allowed. In the case of Grant v. Secretary of State for India in Council (1877), 2 C. P. D. 445; 46 L. J. C. 681, a demurrer was allowed to an action by an officer of the East India Company's service who had been compulsorily retired under the order of the Government of India. Here the plaintiff was clearly a British subject, but nothing turned upon this. For the order was held, as an act of administration in the public service, to be within the high powers of government formerly entrusted to the East India Company (not as a trading company, but as a subordinate Government) and now to be exercised by the Government of India. In effect the question was not of a sovereign act, but of the powers of high (but still subordinate) officers of Government. In Kinlock v. Secretary of State for India (1879), L. R. 15 Ch. D. 1 and 7 App. Cas. 619, which was one of the Banda and Kirwee cases, it was held that a royal warrant granting booty of war to the Secretary of State for India in Council in trust to distribute amongst the persons found entitled to share it by the decree of the Court of Admiralty, did not operate as a transfer of property, or create a trust, and that the defendant, being merely the agent of the sovereign, was not liable to account to any of the parties found entitled. In Walker v. Baird, [1892] App. Cas. 491, which was an appeal to the Privy Council from the Supreme Court of Newfoundland, it was held that the plea of act of State,' in the sense of an act, the justification of which on constitutional grounds cannot be inquired into, cannot be admitted between British subjects in a British colony. In this case the plaintiff complained of interference with his lobster factory, and the defendant, a captain of one of Her Majesty's ships, pleaded that he was acting in the execution of his duty, in carrying out an agreement between the Queen and the Republic of France. But the defence was not allowed. In Cook v. Sprigg, [1899] A. C. 572, it was held that grantees of concessions made by the paramount chief of Pondoland could not, after the annexation of Pondoland by the Queen, enforce against the Crown the privileges and rights conferred by the concessions. The language used in the Tanjore case was quoted with approval. In West Rand Central Gold Mining Company Limited v. The King, [1905] 2 K. B. 391, it was held, on demurrer to a petition of right, that damages could not be recovered against the Crown in respect of gold 'commandeered' by the Boer Government before the annexation of the Transvaal. The facts in Duleep Singh's case, Salaman v. Secretary of State for India in Council, [1905] 1 K. B. 613, resembled those in the Tanjore case. When the Punjab was annexed, the East India Company confiscated the State property, granted Duleep Singh a pension for life, assumed the custody of his person during his minority, and took possession of his private property. It was held that these were acts of State, and that an action would not lie against the Secretary of State in Council for arrears of the pension and for an account of the personal property. On acts of State,' see further, Mayne, Criminal Law of India, pp. 318 sqq., the article Act of State' in the Encyclopaedia of the Laws of England, and the cases collected in the notes on The Queen v. The Commissioners of the Treasury, L. R. 7 Q. B. 387, in Campbell's Ruling Cases, vol. i. pp. 802 sqq. The notes on Indian cases in that volume have been partially reproduced above. Mr. Harrison Moore's recent essay on Act of State in English Law (London, 1906) covers wider ground, and touches on many points in the troublesome borderland of law and politics.' In suits or actions against the Secretary of State for breach of contract of service, regard must also be had to the principles regulating the tenure of servants under the Crown (see note on s. 21 above). And, finally, the liability of the Secretary of State in Council to be sued does not deprive the Crown of the privileges to which it is entitled by virtue of the prerogative. In Ganpat Pataya v. Collector of Canara (1875), I. L. R. I Bom. 7, the priority of Crown debts over attachment was maintained, and West, J., said— It is a universal rule that prerogative and the advantages it affords cannot be taken away except by the consent of the Crown embodied in statute. This rule of interpretation is well established, and applies not only to the statutes passed by the British, but also to the Acts of the Indian Legislature framed with constant reference to the rules recognized in England.' As to the legal liability of a colonial governor, Sir W. Anson saysHe can be sued in the courts of the colony in the ordinary form of procedure. Whether the cause of action springs from liabilities incurred by him in his private or in his public capacity, this rule would appear to hold good. Though he represents the Crown he has none of the legal irresponsibility of the sovereign within the compass of his delegated and limited sovereignty.' Law and Custom of the Constitution, pt. ii. p. 262. See Hill v. Bigge, 3 Moore P. C. 465; Musgrove v. Pulido, L. R. 5 App. Cas. 102; Nireaha Tamaki v. Baker, App. Cas., [1901] pp. 561, 576. The procedure in suits against the Government in India is regulated by ss. 416-429 of the Code of Civil Procedure (XIV of 1882). General powers and PART IV. THE GOVERNOR-GENERAL IN COUNCIL. General Powers of Governor-General in Council. 36.-(1) The superintendence, direction, and control of the civil and military government of British India is vested in duties of the Governor-General of India in Council (a). Governor Council. General in (2) The Governor-General in Council is required to pay due obedience to all such orders as he may receive from the III, c. 63, Secretary of State (b). [13 Geo. 8. 9. 3 & 4 Will. IV, c. 85, 8. 39.] (a) It is difficult to reproduce with accuracy enactments which regulated the powers and duties of the Governor-General and his Council in the days of the East India Company. Section 9 of the Regulating Act of 1773 (13 Geo. III, c. 63) enacts that 'the said governor-general and council' (i. e. the Governor-General and Council of Bengal), or the major part of them, shall have . . . power of superintending and controlling the presidencies of Madras, Bombay, and Bencoolen respectively, so far and in so much as that it shall not be lawful for any president and council of Madras, Bombay, or Bencoolen' to make war or treaties without the previous consent of the governor-general and council, except in cases of imminent necessity or of special orders from the Company. See s. 49 of this Digest. Section 39 of the Charter Act of 1833 (3 & 4 Will. IV, c. 85) declared that 'The superintendence, direction, and control of the whole civil and military government of all the said territories and revenues in India shall be and is hereby vested in a governor-general and councillors, to be styled "The Governor-General of India in Council." Since India has been placed under the direct government of the Crown the governor-general has also been viceroy, as the representative of the Queen. Lord Canning was the first viceroy. The Governor-General in Council is often described as the Government of India, a description which is recognized by Indian legislation (X of 1897, 8. 3 (22)). Of course the reproduction of statutory enactments embodied in this Digest is not an exhaustive statement of the powers of the GovernorGeneral in Council. For instance, the powers of the Government of India, as the paramount authority in India, extend beyond the limits of British India. Again, the Governor-General in Council, as representing the Crown in India, enjoys, in addition to any statutory powers, such of the powers, prerogatives, privileges, and immunities appertaining to the Crown as are appropriate to the case and consistent with the system of law in force in India. Thus it has been decided that the rule that the The Madras and Bombay Armies Act, 1893 (56 & 57 Vict. c. 62), took away the military control and authority previously exercisable by the Governments of Madras and Bombay. As to the power of the governor-general to grant military commissions, see the note below, p. 267. (b) This reproduces part of s. 9 of the Regulating Act (13 Geo. III, c. 63), which directs that the said governor-general and council for the time being shall and they are hereby directed and required to obey all such orders as they shall receive from the Court of Directors of the said united Company.' This enactment was necessary at a time when the relations to be regulated were those between the statutory governor-general and his council on the one hand and the directors of the Company on the other, and, being still on the statute book, is reproduced here. But, of course, the relations between the Secretary of State and the Government of India are now regulated by constitutional usage. The Governor-General. 37. The Governor-General of India is appointed by His The Majesty by warrant under the Royal Sign Manual. governorgeneral. [21 & 22 Vict. c. 106, s. 29]. Constitu tion of governor The appointment of the governor-general is made on the advice of the Prime Minister. The governor-general usually holds office for a term of five years. As to his resignation, see below, s. 82. The Council of the Governor-General. 38. The council of the Governor-General of India, as constituted for executive purposes, consists of the ordinary memgeneral's bers, and of the extraordinary member (a) (if any) thereof (b). council. Ordinary members (a) See s. 40. (b) This section does not reproduce any specific enactment, but represents the existing law. 39.-(1) The ordinary members of the governor-general's council are appointed by His Majesty by warrant under the [21 & 22 Royal Sign Manual. of council. Vict. c. 106, s. 7. 24 & 25 Vict. c. 67, 8. 3. 32&33 Vict. c. 97, s. 8. 37 & 38 Vict. c. 91, S. I. (2) The number of the ordinary members of the governorgeneral's council is five, or, if His Majesty thinks fit to appoint a sixth member, six (a). (3) Of the ordinary members of the governor-general's council, three must be persons who at the time of their appointment have been for at least ten years in the service 4 Edw.VII, of the Crown in India (b), and one must be a barrister of c. 26.] England or Ireland, or a member of the Faculty of Advocates of Scotland, of not less than five years' standing (c). (4) If any person appointed an ordinary member of the governor-general's council is at the time of his appointment in the military service of the Crown, he may not, during his continuance in office as such member, hold any military command or be employed in actual military duties. (a) The number is at present six. The power given by 37 & 38 Vict. c. 91 to appoint a sixth member specifically for public works purposes was made a general power by 4 Edw. VII, c. 26. Under existing arrangements the business of the Government of India is distributed between nine departments-Finance, Foreign, Home, Legislative, Revenue and Agriculture, Public Works, Commerce and Industry, Army, Military Supply. Of these the Foreign Department is under the immediate superintendence of the governor-general, and the Army Department is under the commander-in-chief of His Majesty's forces in India (see s. 40 of Digest). The charge of the other departments is distributed between the other members of council. The term of office of a member of council is by custom five years. |