disallowed by the Queen, acting through the Secretary of State. The legislative power of the Governor-General in Council was declared to extend to making laws and regulations for repealing, amending, or altering any laws or regulations for the time being in force in the 'Indian territories now under the dominion of Her Majesty,' 1 and to making laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice, and for all places and things within the said territories, and for all servants of the Government of India within the dominions of princes and States in alliance with Her Majesty.2 But there were express savings for certain Parliamentary enactments, for the general authority of Parliament, and for any part of the unwritten laws or constitution of the United Kingdom whereon the allegiance of the subject or the sovereignty of the Crown may depend. An exceptional power was given to the governor-general, in cases of emergency, to make, without his council, ordinances, which were not to remain in force for more than six months.3 Doubts had for some time existed as to the proper mode of legislating for newly acquired territories of the Company. When Benares and the territories afterwards known as the North-Western Provinces were annexed, the course adopted was to extend to them, with some variations, the laws and regulations in force in the older provinces of Bengal, Bihar, and Orissa. But when the Saugor and Nerbudda territories were acquired from the Marathas by Lord Hastings, and when Assam, Arakan, and Tenasserim were conquered in 1824, and Pegu in 1852, these regions were specially exempted from the Bengal Regulations, instructions, however, being given to the officers administering them to conduct their procedure in accordance with the spirit of the regulations, so 1 Explained by 55 & 56 Vict. c. 14, s. 3. Digest, s. 63. These powers were extended by 28 & 29 Vict. c. 17, s. 1, and 32 & 33 Vict. c. 98, s. 1. See Digest, s. 63. 3 See Digest, s. 69. far as they were suitable to the circumstances of the country.1 And when the Punjab was annexed the view taken was that the Governor-General in Council had power to make laws for the new territory, not in accordance with the forms prescribed by the Charter Acts for legislation, but by executive orders, corresponding to the Orders in Council made by the Crown for what are called Crown Colonies. Provinces in which this power was exercised were called 'non-regulation provinces' to distinguish them from the 'regulation provinces,' which were governed by regulations formally made under the Charter Acts. A large body of laws had been passed under this power or assumed power, and in order to remove any doubts as to their validity a section was introduced into the Indian Councils Act, 1861, declaring that no rule, law, or regulation made before the passing of the Act by the governor-general or certain other authorities should be deemed invalid by reason of not having been made in conformity with the provisions of the Charter Acts.2 The power of legislation which had been taken away from the Governments of Madras and Bombay by the Charter Act of 1833 was restored to them by the Act of 1861. The councils of the governors of Madras and Bombay were expanded for legislative purposes by the addition of the advocate-general and of other members nominated on the same principles as the additional members of the governor-general's council.3 No line of demarcation was drawn between the subjects reserved for the central and the local legislatures respectively; but the previous sanction of the governor-general was made requisite for legislation by the local legislature in certain 1 Chesney's Indian Polity (3rd ed.), pp. 58, 64. * Indian legislation subsequently became necessary for the purpose of ascertaining and determining the rules which had been thus validated in general terms. See Sir James Stephen's speech in the Legislative Council in the debate on the Punjab Laws Acts, March 26, 1872, and the chapter contributed by him to Sir W. Hunter's Life of Lord Mayo, vol. ii. pp. 214-221. These provisions have also been modified by subsequent legislation. See Digest, ss. 71, 76, 77. cases, and all Acts of the local legislature required the subsequent assent of the governor-general in addition to that of the Governor, and were made subject to disallowance by the Crown, as in the case of Acts of the governor-general'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,2 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 Act, 1861. respectively at the presidency towns, had long been in contemplation, and was carried into effect by the Indian High Courts Act, 1861.5 By this Act the Queen was empowered to establish, by letters patent, 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 1 See note 4, p. 100. "A legislative council for Bengal was established by a proclamation of January 18, 1862. 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. 88. 46, 47. Digest, s. 74. 5 24 & 25 Vict. c. 104. • The letters patent or charters now in force with respect to these three high courts bear date December 28, 1865. Legislation since 1861. one-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, 1865,3 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, 1869,7 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 1 See Digest, ss. 96-103. Under this power a high court was established at Allahabad in 1866. It is probable that the power was thereby exhausted. 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, 1869,1 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 legislation 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. 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, lieutenant-governor in Council, 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. This restoration of a power of summary legislation was strongly advo cated by Sir H. S. Maine. See Minutes by Sir H. S. Maine, pp. 153, 156. |