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towns there is a magistrate of the first class called the district magistrate, with subordinate magistrates under him. For the three presidency towns there are special presidency magistrates, and the sessions divisions arrangements do not apply to these towns.
A high court may pass any sentence authorized by law. A sessions judge may pass any sentence authorized by law, but sentences of death must be confirmed by the high court. Trials before the high court are by a jury of nine. Trials before a court of sessions are either by a jury or with assessors according to orders of the local Government.
Presidency magistrates and magistrates of the first class can pass sentences of imprisonment up to two years, and of fine up to 1,000 rupees. They can also commit for trial to the court of sessions or high court.
Magistrates of the second class can pass sentences of imprisonment up to six months and of fine up to 200 rupees.
Magistrates of the third class can pass sentences of imprisonment up to one month and of fine up to fifty rupees.
In certain parts of British India the local Government can, under s. 30 of the Code of Criminal Procedure, invest magistrates of the first class with power to try all offences not punishable with death.
In certain cases and under certain restrictions magistrates of the first class, or, if specially so empowered, magistrates of the second class, can pass sentences of whipping.
A judge or magistrate cannot try a European British subject unless he is a justice of the peace. High court judges, sessions judges, district magistrates, and presidency magistrates are justices of the peace ex-officio. In other cases a justice of the peace must be a European British subject. If a European British subject is brought for trial before a magistrate he may claim to be tried by a mixed jury.
India, as defined by the Interpretation Act, 1889 (52 & 53 Vict. c. 63, s. 18), and by the Indian General Clauses Act (X of 1897, s. 3 (27)), includes not only the territories
comprised in British India, that is to say, the territories under the direct sovereignty of the Crown, but also the territories of the dependent Native States. These are upwards of 600 in number. They cover an area of nearly 700,000 square miles, and contain a population of about 62,500,000. Their total revenues are estimated at nearly Rx. 20,000,000 1. They differ from each other enormously in magnitude and importance. The Nizam of Hyderabad rules over an area of 83,000 square miles and a population of more than 11,000,000. There are petty chiefs in Kathiawar whose territory consists of a few acres ?. The territory of these States is not British territory. Their Division
of sovesubjects are not British subjects. The sovereignty over reignty them is divided between the British Government and the ruler of the Native State in proportions which differ greatly according to the history and importance of the several States, and which are regulated partly by treaties or less formal engagements, partly by sanads or charters, and partly by usage. The maximum of sovereignty enjoyed by any of their rulers is represented by a prince like the Nizam of Hyderabad, who coins money, taxes his subjects, and inflicts capital punishment without appeal. The minimum of sovereignty is represented by the lord of a few acres in Kathiawar, who enjoys immunity from British taxation, and exercises some shadow of judicial authority. But in the case of every Native State the British Govern- General
control by ment, as the paramount Power,
Govern(1) exercises exclusive control over the foreign relations of
ment. the State ; (2) assumes a general, but limited, responsibility for the
internal peace of the State ;
1 Rx = tens of rupees.
? For further details as to the Native States see East India, Moral and Material Progress, Decennial Report (1904), pp. 15-50 ; and on the general position of these States see :-Tupper, Our Indian Protectorate ; Lee-Warner, Protected Princes of India; Strachey, India, ch. xxiv; Westlake, Chapters on Principles of International Law, ch. x; and below, chapter v.
(3) assumes a special responsibility for the safety and
welfare of British subjects resident in the State ;
and (4) requires subordinate co-operation in the task of re
sisting foreign aggression and maintaining internal
order. Control It follows from the exclusive control exercised by the over foreign
British Government over the foreign relations of Native relations. States, that a Native State has not any international exist
It does not, as a separate unit, form a member of the family of nations. It cannot make war. It cannot enter into any treaty, engagement, or arrangement with any of its neighbours. If, for instance, it wishes to settle a question of disputed frontier, it does so, not by means of an agreement, but by means of rules or orders framed by an officer of the British Government on the application of the parties to the dispute. It cannot initiate or maintain diplomatic relations with any foreign Power in Europe, Asia, or elsewhere. It cannot send a diplomatic or consular officer to any foreign State. It cannot receive a diplomatic or consular officer from any foreign State. Any attempt by the ruler of a Native State to infringe these rules would be a breach of the duty he owes to the King-Emperor. Any attempt by a foreign Power to infringe them would be a breach of international law. Hence, if a subject of a Native State is aggrieved by the act of a foreign Power, or of a subject of a foreign Power, redress must be sought by the British Government; and, conversely, if a subject of a foreign Power is aggrieved by the act of a Native State, or of any of its subjects, the foreign Power has no direct means of redress, but must proceed through the British Government. Consequently the British Government is in some degree responsible both for the protection of the subjects of Native States when beyond the territorial limits of those States, and for the protection of the subjects of foreign Powers when within the territorial limits of Native States. And, as a corollary from this respon
sibility, the British Government exercises control over the protected class of persons in each case.
The British Government has recognized its responsibility for, and asserted its control over, subjects of Native Indian States resorting to foreign countries by the Orders in Council which have been made for regulating the exercise of British jurisdiction in Zanzibar, Muscat, and elsewhere. By these orders provision has been made for the exercise of jurisdiction, not only over British subjects in the proper sense, but also over British-protected subjects, that is, persons who by reason of being subjects of princes and States in India in alliance with His Majesty, or otherwise, are entitled to British protection. And the same responsibility is recognized in more general terms by a section in the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37, s. 15), which declares that where any Order in Council made in pursuance of the Act extends to persons enjoying His Majesty's protection, that expression is to include all subjects of the several princes and States in India. The consequences which flow from the duty and power Power to
maintain of the British Government to maintain order and peace in
peace. the territories of Native States have been developed at length by Mr. Tupper and Sir William Lee-Warner. The guarantee to a native ruler against the risk of being dethroned by insurrection necessarily involves a corresponding guarantee to his subjects against intolerable misgovernment. The degree of misgovernment which should be tolerated, and the consequences which should follow from transgression of that degree, are political questions to be determined with reference to the circumstances of each case.
The special responsibility assumed by the British Govern- Special ment for the safety and welfare of British subjects, whether
bility for English or Indian, within the territories of Native States, British
subjects involves the exercise of very extensive jurisdiction within in Native
States. those territories. The territories of British India and of the Native States are inextricably interlaced. The territories of
the Native States are intersected by British railway lines, postal lines, and telegraph lines. British subjects, European and Indian, freely and extensively resort to and reside in Native territory for purposes of trade and otherwise. For each Native State there is a British political officer, representing the civil authority exercised by the paramount power, and in each of the more important States there is a resident political officer with a staff of subordinates. Detachments of British troops occupy cantonments in all the more important military positions.
For the regulation of the rights and interests arising from this state of things an extensive judicial machinery is required. It varies in character in different places, and its powers are not everywhere based on the same legal principles. For the proper control of the railway staff it has sometimes been found necessary to obtain a formal cession of the railway lands. In other cases, a cession of jurisdiction within those lands has been considered sufficient. The jurisdiction exercised in cantonments has been sometimes based on the extra-territorial character asserted for cantonments under European international law. And a similar extra-territorial character may be considered as belonging to the residencies
and other stations occupied by political officers 1. Subor- The duty incumbent on Native States of subordinate dinate military
co-operation in the task of resisting foreign aggression has co-opera- been recognized and emphasized by arrangements which tion.
were made during Lord Dufferin's viceroyalty with several of these States for maintaining a number of selected troops in such a condition of efficiency as will make them fit to take the field side by side with British troops. Other States have engaged to furnish transport corps. The total number of these contingents is about 17,500 men. The officers and men are, to a great extent, natives of the State to which they
belong, but they are inspected and advised by British officers 2. Excep- The result of all these limitations on the powers of the tional See below, Chapter v.
Strachey, India, p. 451.