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who was not to be one of the Company's servants, and was not to be entitled to act as member of council except for legislative purposes. It need hardly be stated that the fourth member was Macaulay.
The overgrown Presidency of Bengal 2 was to be divided into two distinct presidencies, to be called the Presidency of Fort William and the Presidency of Agra. But this provision never came into operation. It was suspended by an enactment of 1835 (5 & 6 Will. IV, c. 52), and the suspension was continued indefinitely by the Charter Act of 1853 (16 & 17 Vict. c. 95, S. 15).
The intention was that each of the four presidencies, Fort William, Fort St. George, Bombay, and Agra, should have, for executive purposes, a governor and council of its own.
But the governor-general and his council were to be, for the present, the governor and council of Fort William, and power was given to reduce the members of the council, or even suspend them altogether and vest the executive control in a governor alone 3.
Important alterations were made by the Act of 1833 in the legislative powers of the Indian Government. “At that date there were five different bodies of statute law in force in the (Indian) empire. First, there was the whole body of statute law existing so far as it was applicable, which was introduced by the Charter of George I and which applied,
1 The duty of the fourth ordinary member' (under the Act of 1833) was confined entirely to the subject of legislation; he had no power to sit or vote except at meetings for the purpose of making laws and regulations ; and it was only by courtesy, and not by right, that he was allowed to see the papers or correspondence, or to be made acquainted with the deliberations of Government upon any subject not immediately connected with legislation.' Minute by Sir Barnes Peacock of November 3, 1859.
? It had been increased by the addition of Benares in 1775, of the modern Orissa in 1803, of large territories in the North-West in 1801-1803, and of Assam, Arakan, and Tenasserim in 1824.
3 The power of reduction was exercised in 1833 by reducing the number of ordinary members of the Madras and Bombay councils from three to two (Political Dispatch of December 27, 1833). The original intention was to abolish the councils of the minor presidencies, but, at the instance of the Court of Directors, their retention was left optional.
at least, in the presidency towns. Secondly, all English Acts subsequent to that date, which were expressly extended to any part of India. Thirdly, the regulations of the governorgeneral's council, which commence with the Revised Code of 1793, containing forty-eight regulations, all passed on the same day (which embraced the results of twelve years' antecedent legislation), and were continued down to the year 1834. They only had force in the territories of Bengal. Fourthly, the regulations of the Madras council, which spread over the period of thirty-two years, from 1802 to 1834, and are [were] in force in the Presidency of Fort St. George. Fifthly, the regulations of the Bombay Code, which began with the revised code of Mr. Mountstuart Elphinstone in 1827, comprising the results of twenty-eight years' previous legislation, and were also continued into 1834, having force and validity in the Presidency of Fort St. David 1.
' In 1833,' says Mr. Cowell in continuation, the attention of Parliament was directed to three leading vices in the process of Indian government. The first was in the nature of the laws and regulations; the second was in the ill-defined authority and power from which these various laws and regulations emanated ; and the third was the anomalous and sometimes conflicting judicatures by which the laws were administered.'
The Act of 1833 vested the legislative power of the Indian Government exclusively in the Governor-General in Council, who had been, as has been seen, reinforced by the addition of a fourth legislative member. The four Presidential Governments were merely authorized to submit to the GovernorGeneral in Council' drafts or projects of any laws or regulations which they might think expedient,' and the GovernorGeneral in Council was required to take these drafts and projects into consideration and to communicate his resolutions thereon to the Government proposing them.
Cowell, Tagore Lectures of 1872. For “ Fort St. David 'read' Bombay.' See also Harington's Analysis of the Bengal Regulations.
The Governor-General in Council was expressly empowered to make laws and regulations(a) for repealing, amending, or altering any laws or regula
tions whatever, for the time being in force in the Indian
territories ; (b) for all persons, whether British or native, foreigners or
others, and for all courts of justice, whether established
by charter or otherwise, and the jurisdiction thereof; (c) for all places and things whatsoever within and through
out the whole and every part of the said territories. (d) for all servants of the Company within the dominions
of princes and States in alliance with the Company; and (e) as articles of war for the government of the native
officers and soldiers in the military service of the Company, and for the administration of justice by courts-martial to be holden on such officers and
soldiers. But this power was not to extend to the making of any laws and regulations(i) which should repeal, vary, or suspend any of the pro
visions of the Act of 1833, or of the Acts for punishing mutiny and desertion of officers and soldiers in the
service of the Crown or of the Company ; or (ii) which should affect any prerogative of the Crown, or
the authority of Parliament, or the constitution or rights of the Company, or any part of the unwritten laws or constitutions of the United Kingdom, whereon may depend the allegiance of any person to the Crown, or the sovereignty or dominion of the Crown over the
Indian territories ; or (iii) without the previous sanction of the Court of Directors,
which should empower any court other than a chartered court to sentence to death any of His Majesty's natural-born subjects born in Europe, or their children, or abolish any of the chartered courts 1.
See Digest, s. 63.
There was also an express saving of the right of Parliament to legislate for India and to repeal Indian Acts, and, the better to enable Parliament to exercise this power, all Indian laws were to be laid before Parliament.
Laws made under the powers given by the Act were to be subject to disallowance by the Court of Directors, acting under the Board of Control, but, when made, were to have effect as Acts of Parliament, and were not to require registration or publication in any court of justice.
The laws made under the Act of 1833 were known as Acts, and took the place of the regulations made under previous Acts of Parliament.
A comprehensive consolidation and codification of Indian laws was contemplated. Section 53 of the Act recited that it was 'expedient that, subject to such special arrangements as local circumstances may require, a general system of judicial establishments and police, to which all persons whatsoever, as well Europeans as natives, may be subject, should be established in the said territories at an early period ; and that such laws as may be applicable in common to all classes of the inhabitants of the said territories, due regard being had to the rights, feelings, and peculiar usages of the people, should be enacted; and that all laws and customs having the force of law within the same territories should be ascertained and consolidated, and, as occasion may require, amended.'
The Act then went on to direct the Governor-General in Council to issue a commission, to be known as the 'Indian Law Commission, which was to inquire into the jurisdiction, powers, and rules of the existing courts of justice and police establishments in the Indian territories, and all existing forms of judicial procedure, and into the nature and operation of all laws, whether civil or criminal, written or customary, prevailing and in force in any part of the Indian territories, to which any inhabitants of those territories were then subject. The commissioners were to report to the GovernorGeneral in Council, setting forth the results of their inquiries, and suggesting alterations, and these reports were to be laid before Parliament.
This was the first Indian Law Commission, of which Macaulay was the most prominent member. Its labours resulted directly in the preparation of the Indian Penal Code, which however did not become law until 1860, and, indirectly and after a long interval of time, in the preparation of the Codes of Civil and Criminal Procedure and other codes of substantive and adjective law which now form part of the Indian Statute Book.
Important provisions were made by the Act of 1833 for enlarging the rights of European settlers, and for protecting the natives of the country, and ameliorating their condition.
It was declared to be lawful for any natural-born subject of His Majesty to proceed by sea to any port or place having a custom-house establishment within the Indian territories, and to reside thereat, or to proceed to and reside in or pass through any part of the territories which were under the Company's government on January 1, 1800, or any part of the countries ceded by the Nabob of the Carnatic, of the province of Cuttack, or of the settlements of Singapore and Malacca. These rights might be exercised without the requirement of any licence. But every subject of His Majesty not being a native was, on his arrival in India from abroad, to signify on entry, to an officer of customs, his name, place of destination, and objects of pursuit in India. A licence was still required for residence in any part of India other than those above mentioned, but power was reserved to the Governor-General in Council, with the previous approbation
1 His colleagues were another English barrister, Mr. Cameron, afterwards law member of council, and two civil servants of the Company, Mr. Macleod of the Madras Service, and Mr. (afterwards Sir William) Anderson of the Bombay Service. Sir William Macnaghten of the Bengal Service was also appointed, but did not accept the appointment.