Слике страница

cases, and all Acts of the local legislature required the subsequent assent of the governor-general in addition to that of the Secretary of State, and were made subject to disallowance by the Crown, as in the case of the governorgeneral's council. There were also the same restrictions on the proceedings of the local legislatures 1.

The governor-general was directed to establish, by proclamation, a legislative council for Bengal ?, and was empowered to establish similar councils for the North-Western Provinces and for the Punjab 3. These councils were to consist of the lieutenant-governor and of a certain number of nominated councillors, and were to be subject to the same provisions as the local legislatures for Madras and Bombay.

The Act also gave power to constitute new provinces for legislative purposes and appoint new lieutenant-governors, and to alter the boundaries of existing provinces 4. The amalgamation of the supreme and sadr courts, that is Indian

High to

say, of the courts representing the Crown and the Company Courts respectively at the presidency towns, had long been in con- Act, 1861. templation, and was carried into effect by the Indian High Courts Act, 1861 5.

By this Act the Queen was empowered to establish, by letters patento, high courts of judicature in Calcutta, Madras, and Bombay, and on their establishment the old chartered supreme courts and the old “Sadr Adalat' Courts were to be abolished, the jurisdiction and the powers of the abolished courts being transferred to the new high courts.

Each of the high courts was to consist of a chief justice and not more than fifteen judges, of whom not less than one

I See note 4, p. 100.

? A legislative council for Bengal was established by a proclamation of January 18, 1862.

3 A legislative council was established for the North-Western Provinces and Oudh (now United Provinces of Agra and Oudh) in 1886, and for the Punjab in 1897. 4 ss. 46, 47. Digest, s. 74.

24 & 25 Vict. c. 104. 6 The letters patent or charters now in force with respect to these three high courts bear date December 28, 1865.

[ocr errors]

Legislation since 1861.

third, including the chief justice, were to be barristers, and not less than one-third were to be members of the covenanted civil service. All the judges were to be appointed by and to hold office during the pleasure of the Crown. The high courts were expressly given superintendence over, and power to frame rules of practice for, all the courts subject to their appellate jurisdiction 1.

Power was given by the Act to establish another high court, with the same constitution and powers as the high courts established at the presidency towns 2.

The Indian High Courts Act of 1861 closed the series of constitutional statutes consequent on the transfer of the government of India to the Crown. Such Acts of Parliament as have since then been passed for India have done little more than amend, with reference to minor points, the Acts of 1858 and 1861.

The Indian High Courts Act, 1865", empowered the GovernorGeneral in Council to pass orders altering the limits of the jurisdiction of the several chartered high courts and enabling them to exercise their jurisdiction over native Christian subjects of Her Majesty resident in Native States.

Another Act of the same year, the Government of India Act, 1865 4, extended the legislative powers of the governorgeneral's council to all British subjects in Native States, whether servants of the Crown or not 5, and enabled the Governor-General in Council to define and alter, by proclamation, the territorial limits of the various presidencies and lieutenant-governorships 6.

The Government of India Act, 1869 , vested in the Secretary of State the right of filling all vacancies in the Council of India, and changed the tenure of members of the council



See Digest, ss. 96-103.

s. 16. Under this power a high court was established at Allahabad in 1866. It is probable that the power was thereby exhausted.

3 28 & 29 Vict. c. 15. Digest, s. 104. 4 28 & 29 Vict. c. 17.

5 See Digest, s. 63.

32 & 33 Vict. c. 97.

Ibid. 57

from a tenure during good behaviour to a term of ten years. It also transferred to the Crown from the Secretary of State in Council the right of filling vacancies in the offices of the members of the councils in India.

The Indian Councils Act, 1869", still further extended the legislative powers of the governor-general's council by enabling it to make laws for all native Indian subjects of Her Majesty in any part of the world, whether in India or not.

A very important modification in the machinery for Indian legislature was made by the Government of India Act, 1870 2. It has been seen that for a long time the governor-general believed himself to have the power of legislating by executive order for the non-regulation provinces. The Indian Councils Act of 1861, whilst validating rules made under this power in the past, took away the power for the future. The Act of 1870 practically restored this power by enabling the governorgeneral to legislate in a summary manner for the less advanced parts of India 3. The machinery provided is as follows. The Secretary of State in Council, by resolution, declares the provisions of section 1 of the Act of 1870 applicable to some particular part of a British Indian province. Thereupon the Governor in Council, lieutenant-governor, or chief commissioner of the province, may at any time propose to the Governor-General in Council drafts of regulations for the peace and good government of that part, and these drafts, when approved and assented to by the Governor-General in Council, and duly gazetted, have the same force of law as if they had been formally passed at sittings of the Legislative Council. This machinery has been extensively applied to the less advanced districts of the different Indian provinces, and numerous regulations have been, and are constantly being, made under it.


| 32 & 33 Vict. c. 98. See Digest, s. 63.

33 & 34 Vict. c. 3. Digest, s. 68.

This restoration of a power of summary legislation was strongly advocated by Sir H. S. Maine. See Minutes by Sir H. S. Maine, PP. 153, 156.

[ocr errors]

The same Act of 1870 contained two other provisions of considerable importance. One of them (s. 5) repeated and strengthened the power of the governor-general to overrule his council. The other (s. 6), after reciting the expediency of giving additional facilities for the employment of natives of India of proved merit and ability' in the civil service of Her Majesty in India, enabled any native of India to be appointed to any office, place, or employment' in that service, notwithstanding that he had not been admitted to that service in the manner directed by the Act of 1858, i.e. by competition in England. The conditions of such appointments were to be regulated by rules made by the GovernorGeneral in Council, with the approval of the Secretary of State in Council?. The result of these rules was the statutory civilian, who has now been merged in or superseded by the Provincial Service.'

Two small Acts were passed in 1871, the Indian Councils Act, 1871 (34 & 35 Vict. c. 34) 3, which made slight extensions of the powers of local legislatures, and the Indian Bishops Act, 1871 (34 & 35 Vict. c. 62), which regulated the leave of absence of Indian bishops.

An Act of 1873 (36 Vict. c. 17) formally dissolved the East India Company as from January 1, 1874.

The Indian Councils Act, 1874 (37 & 38 Vict. c. 91), enabled a sixth member of the governor-general's council to be appointed for public works purposes.

The Council of India Act, 1876 (39 & 40 Vict. c. 7), enabled the Secretary of State, for special reasons, to appoint any person having professional or other peculiar qualifications to be a member of the Council of India, with the old tenure, * during good behaviour,' which had been abolished in 1869 4.

See Digest, 8. 44. It will be remembered that Lord Lytton acted under this power when he exempted imported cotton goods from duty in 79.

2 See ibid. 94.

3 This Act was passed in consequence of the decision of the Bombay High Court in R. v. Reay, 7 Bom. Cr. 6. See note on s. 79 of Digest.

4 This power was exercised in the case of Sir H. S. Maine, and was probably conferred with special reference to him.

In the same year was passed the Royal Titles Act, 1876 (39 & 40 Vict. c. 10), which authorized the Queen to assume the title of Empress of India.

The Indian Salaries and Allowances Act, 1880 (43 & 44 Vict. c. 3), enabled the Secretary of State to regulate by order certain salaries and allowances which had been previously fixed by statute 1

The Indian Marine Service Act, 1884 (47 & 48 Vict. c. 38), enabled the Governor-General in Council to legislate for maintaining discipline in a small marine establishment, called Her Majesty's Indian Marine Service, the members of which were neither under the Naval Discipline Act nor under the Merchant Shipping Acts ?

The Council of India Reduction Act, 1889 (52 & 53 Vict. c. 65), authorized the Secretary of State to abstain from filling vacancies in the Council of India until the number should be reduced to ten.

The Indian Councils Act, 1892 (55 & 56 Vict. c. 14), authorized an increase in the number of the members of the Indian legislative councils, and empowered the GovernorGeneral in Council, with the approval of the Secretary of State in Council, to make rules regulating the conditions under which these members are to be nominated 3. At the same time the Act relaxed the restrictions imposed by the Act of 1861 on the proceedings of the legislative councils by enabling rules to be made authorizing the discussion of the annual financial statement, and the asking of questions, under prescribed conditions and restrictions.

The Act also cleared up a doubt as to the meaning of an enactment in the Indian Councils Act of 1861, modified some of the provisions of that Act about the office of 'additional members of legislative councils, and enabled local legislatures, with the previous sanction of the governor-general, to repeal

[blocks in formation]

See Digest, ss. 80, 113.

3 See ibid. 60, 71, 73.

« ПретходнаНастави »