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General
control by
British
Govern-

ment.

Control

over

foreign relations.

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 Government, as the paramount Power,

(1) exercises exclusive control over the foreign relations of the State;

(2) assumes a general, but limited, responsibility for the internal peace of the State;

(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 resisting foreign aggression and maintaining internal order.

It follows from the exclusive control exercised by the British Government over the foreign relations of Native States, that a Native State has not any international existence. 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 responsibility, 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.

maintain

peace.

The consequences which flow from the duty and power Power to of the British Government to maintain order and peace in the territories of Native States have been developed at length by Sir C. L. 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

Special responsibility for

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.1

The special responsibility assumed by the British Government for the safety and welfare of British subjects, whether British English or Indian, within the territories of Native States, subjects in Native involves the exercise of very extensive jurisdiction within

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.2

1 The recent tendency to leave greater freedom of administration to the rulers of Native States is illustrated by the Mysore Treaty of 1913. 2 See below, Chapter V.

dinate

tion.

The duty incumbent on Native States of subordinate Suborco-operation in the task of resisting foreign aggression has military been recognized and emphasized by arrangements which co-operawere 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 22,000 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.1

tional

of Native

The result of all these limitations on the powers of the ExcepNative Indian States is that, for purposes of international position law, they occupy a very special and exceptional position. Indian The principles of international law', declared a resolution of States. the Government of India in 1891,2 have no bearing upon the relations between the Government of India as representing the Queen-Empress on the one hand, and the Native States under the sovereignty of Her Majesty on the other. The paramount supremacy of the former presupposes and implies the subordination of the latter.'

1 Strachey, India, p. 493.

2 Gazette of India, No. 1700 E, August 21, 1891.

Government of

India by

the Crown.

[21 & 22

Vict. c.

106, s. 2.]

CHAPTER III

DIGEST OF STATUTORY ENACTMENTS RELATING TO THE

GOVERNMENT OF INDIA

N.B.-The marginal references in square brackets [ ] indicate the enactments reproduced.

PART I.

THE SECRETARY OF STATE IN COUNCIL.

The Crown.

1.-British India (a) is governed by and in the name of His Majesty the King (b), and all rights which, if the Government of India Act, 1858, had not been passed, might have been exercised by the East India Company in relation to any territories, may be exercised by and in the name of His Majesty as rights incidental to the government of British India (c).

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(a) The expressions British India' and 'India' are defined by s. 124 of this Digest, in accordance with the Interpretation Act, 1889 (52 & 53 Vict. c. 63, s. 18), and the Indian General Clauses Act (X of 1897, 8.3 (7) (27)).

6

The language used in the Act of 1833 (3 & 4 Will. IV, c. 85, s. 1) was the territories now in the possession and under the government of the said company.' A similar expression was used in the Indian Councils Act, 1861 (24 & 25 Vict. c. 67, s. 22). Hence questions arose as to the application of the Acts to territories subsequently acquired. Those questions have, however, now been set at rest by s. 3 of the Indian Councils Act, 1892 (55 & 56 Vict. c. 14), which expressly declares the applicability of the Acts of 1833 and 1861 to territories subsequently acquired.

(b) The Royal Titles Act, 1876 (39 & 40 Vict. c. 10), authorized the Queen, with a view to the recognition of the transfer of the govern ment of India from the East India Company to the Crown, by Royal Proclamation, to make such addition to the style and titles appertaining to the Imperial Crown of the United Kingdom and its dependencies as to Her Majesty might seem meet. Accordingly the Queen, by proclamation dated April 28, 1876, added to her style and titles

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