Crown the privileges and rights conferred by the concessions. The language used in the Tanjore case was quoted with approval. In West Rand Central Gold Mining Company Limited v. The King, [1905] 2 K. B. 391, it was held, on demurrer to a petition of right, that damages could not be recovered against the Crown in respect of gold * commandeered' by the Boer Government before the annexation of the Transvaal. The facts in Dhuleep Singh's case, Salaman v. Secretary of State for India in Council, [1905] 1 K. B. 613, resembled those in the Tanjore case. When the Punjab was annexed, the East India Company con fiscated the State property, granted Dhuleep Singh a pension for life, assumed the custody of his person during his minority, and took possession of his private property. It was held that these were acts of State, and that an action would not lie against the Secretary of State in Council for arrears of the pension and for an account of the personal property. On acts of State,' see further, Mayne, Criminal Law of India, pp. 318 sqq., the article Act of State' in the Encyclopaedia of the Laws of England, and the cases collected in the notes on The Queen v. The Commissioners of the Treasury, L. R. 7 Q. B. 387, in Campbell's Ruling Cases, vol. i. pp. 802 sqq. The notes on Indian cases in that volume have been partially reproduced above. Mr. Harrison Moore's recent essay on Act of State in English Law (London, 1906) covers wider ground, and touches on many points in the 'troublesome borderland of law and politics.' In suits or actions against the Secretary of State for breach of contract of service, regard must also be had to the principles regulating the tenure of servants under the Crown (see note on s. 21 above). And, finally, the liability of the Secretary of State in Council to be sued does not deprive the Crown of the privileges to which it is entitled by virtue of the prerogative. In Ganpat Pataya v. Collector of Canara (1875), I. L. R. I Bom. 7, the priority of Crown debts over attachment was maintained, and West, J., said—It is a universal rule that prerogative and the advantages it affords cannot be taken away except by the consent of the Crown embodied in statute. This rule of interpretation is well established, and applies not only to the statutes passed by the British, but also to the Acts of the Indian Legislature framed with constant reference to the rules recognized in England.' As to the legal liability of a colonial governor, Sir W. Anson says'He can be sued in the courts of the colony in the ordinary form of procedure. Whether the cause of action springs from liabilities incurred by him in his private or in his public capacity, this rule would appear to hold good. Though he represents the Crown he has none of the legal irresponsibility of the sovereign within the compass of his delegated and limited sovereignty.' Law and Custom of the Constitution, 3rd ed., vol. ii. pt. ii. p. 81. See Hill v. Bigge, 3 Moore P. C. 465 ; Musgrove v. Pulido, L. R. 5 App. Cas. 102; Nireaha Tamaki v. Baker, App. Cas., [1901] pp. 561, 576, and Keith, Responsible Government in the Dominions, vol. i. pt. ii. chap. ii. The position of the Lord-Lieutenant of Ireland appears to be different. See Anson, ib. The procedure in suits against the Government in India is regulated by Order xxvii in the first schedule to the Code of Civil Procedure (Act V of 1908). General powers and duties of Governor Council. [13 Geo. PART IV THE GOVERNOR-GENERAL IN COUNCIL. General Powers of Governor-General in Council. 36. (1) The superintendence, direction, and control of the civil and military government of British India is vested in the Governor-General of India in Council (a). General in (2) The Governor-General in Council is required to pay due obedience to all such orders as he may receive from the Secretary of State (b). III, c. 63, 8.9. IV, c. 85, (a) It is difficult to reproduce with accuracy enactments which regulated the powers and duties of the Governor-General and his Council in the days of the East India Company. Section 9 of the Regulating Act of 1773 (13 Geo. III, c. 63) enacts that the said governor-general and council' (i. e. the Governor-General and Council of Bengal), or the major part of them, shall have . . . power of superintending and controlling the presidencies of Madras, Bombay, and Bencoolen respectively, so far and in so much as that it shall not be lawful for any president and council of Madras, Bombay, or Bencoolen' to make war or treaties without the previous consent of the governor-general and council, except in cases of imminent necessity or of special orders from the Company. See s. 49 of this Digest. Section 39 of the Charter Act of 1833 (3 & 4 Will. IV, c. 85) declared that 'The superintendence, direction, and control of the whole civil and military government of all the said territories and revenues in India shall be and is hereby vested in a governor-general and councillors, to be styled "The Governor-General of India in Council."' Since India has been placed under the direct government of the Crown the governor-general has also been viceroy, as the representative of the sovereign. Lord Canning was the first viceroy. The Governor-General in Council is often described as the Government of India, a description which is recognized by Indian legislation (X of 1897, s. 3 (22)). Of course the reproduction of statutory enactments embodied in this Digest is not an exhaustive statement of the powers of the GovernorGeneral in Council. For instance, the powers of the Government of India, as the paramount authority in India, extend beyond the limits of British India. Again, the Governor-General in Council, as representing the Crown in India, enjoys, in addition to any statutory powers, such of the powers, prerogatives, privileges, and immunities appertaining to the Crown as are appropriate to the case and consistent with the system of law in force in India. Thus it has been decided that the rule that the Crown is not bound by a statute unless expressly named therein applies also in India. See Secretary of State for India v. Bombay Landing and Shipping Company, 5 Bom. H. C. Rep. O. C. J. 23; Ganpat Pataya v. Collector of Canara, I. L. R. 1 Bom. 7; The Secretary of State for India v. Matthurabhai, I. L. R. 14 Bom. 213, 218; Bell v. Municipal Commissioners for Madras, I. L. R. 25 Mad. 457. The Governor-General in Council has also, by delegation, powers of making treaties and arrangements with Asiatic States, of exercising jurisdiction and other powers in foreign territory, and of acquiring and ceding territory. See Damodhar Khan v. Deoram Khanji, I. L. R. 1 Bom. 367, L. R. 2 App. Cas. 332; Lachmi Narayan v. Raja Pratab Singh, I. L. R. 2 All. 1; Hemchand Devchand v. Azam Sakarlal Chhotamlal and The Taluka of Kotda Sangani v. The State of Gondal, A. C., [1906] 212, and below, p. 417. Moreover, the Government of India has powers, rights, and privileges derived, not from the English Crown, but from the native princes of India, whose rule it has superseded. For instance, the rights of the Government in respect of land and minerals in India are different from the rights of the Crown in respect of land and minerals in England. Whether and in what cases the Governor-General has the prerogative of pardon has been questioned. The power is not expressly conferred on him by his warrant of appointment, but it would be strange if he had not a power possessed by all colonial governors. However, the power of remitting sentences under the Code of Criminal Procedure makes the question of little practical importance. As to the preroga tives of the Crown in India and elsewhere, see Chitty, Prerogatives of the Crown; Forsyth, Cases and Opinions, chap. v; and Campbell's Ruling Cases, vol. viii. pp. 150-275. The Madras and Bombay Armies Act, 1893 (56 & 57 Vict. c. 62), took away the military control and authority previously exercisable by the Governments of Madras and Bombay. As to the power of the governor-general to grant military commissions, see the note below, p. 295. (b) This reproduces part of s. 9 of the Regulating Act (13 Geo. III, c. 63), which directs that the said governor-general and council for the time being shall and they are hereby directed and required to obey all such orders as they shall receive from the Court of Directors of the said united Company.' This enactment was necessary at a time when the relations to be regulated were those between the statutory governor-general and his council on the one hand and the directors of the Company on the other, and, being still on the statute book, is reproduced here. But, of course, the relations between the Secretary of State and the Government of India are now regulated by constitu tional usage. The governor general. [21 & 22 Vict. c. 106, s. 29.] Constitu tion of governor The Governor-General. 37. The Governor-General of India is appointed by His Majesty by warrant under the Royal Sign Manual. The appointment of the governor-general is made on the advice of the Prime Minister. The governor-general usually holds office for a term of five years. As to his resignation, see below, s. 82. The Council of the Governor-General. 38. The council of the Governor-General of India, as constituted for executive purposes, consists of the ordinary memgeneral's bers, and of the extraordinary member (a) (if any) thereof (b). council. Ordinary members (a) See s. 40. (b) This section does not reproduce any specific enactment, but represents the existing law. 39.-(1) The ordinary members of the governor-general's of council, council are appointed by His Majesty by warrant under the Royal Sign Manual. [21 & 22 Vict. c. 106, s. 7. 24 & 25 Vict. c. 67, 8. 3. 32 & 33 Vict. c. 97, 8. 8. 37 & 38 Vict. c. 91, 8. I. 4 Edw. VII, c. 26.] (2) The number of the ordinary members of the governorgeneral's council is five, or, if His Majesty thinks fit to appoint a sixth member, six (a). (3) Of the ordinary members of the governor-general's council, three must be persons who at the time of their appointment have been for at least ten years in the service of the Crown in India, and one must be a barrister of England or Ireland, or a member of the Faculty of Advocates of Scotland, of not less than five years' standing (b). (4) If any person appointed an ordinary member of the governor-general's council is at the time of his appointment in the military service of the Crown, he may not, during his continuance in office as such member, hold any military command or be employed in actual military duties (c). (a) The number is at present six. The power given by 37 & 38 Viet. c. 91 to appoint a sixth member specifically for public works purposes was made a general power by 4 Edw. VII, c. 26. Under existing arrangements the business of the Government of India is distributed between nine departments-Finance, Foreign, Home, Legislative, Revenue and Agriculture, Public Works, Commerce and Industry, Army, Education. Of these the Foreign Department is under the immediate superintendence of the governor-general, and the Army Department is under the commander-in-chief of His Majesty's forces in India (see s. 40 of Digest). The charge of the other departments is distributed between the other members of council. The term of office of a member of council is by custom five years. As to leave of absence, resignation, and conditional and temporary appointments, see below, ss. 81-87. (b) The member of council who is required to hold these qualifications is usually styled the law member. The first holder of the post was Lord Macaulay. He and his successors, down to 1853, were not members of the executive council, and his duties during this period are described by Sir Barnes Peacock in a minute of November 3, 1859, and by Sir H. S. Maine in his minute of May 5, 1866 (Minutes, No. 42). By the Act of 1853 (16 & 17 Vict. c. 95) he was placed in the same position as the other ordinary members of the governor-general's council. He is at the head of a department of his own, the Legislative Department, which was formerly a branch of the Home Department, but which was, in pursuance of Sir H. S. Maine's recommendations (see Minutes by Sir H. S. Maine, No. 84), constituted a separate department in 1869. The duties of this department, and its relation to the other branches of the Government of India, are regulated by the rules and orders for the transaction of business in the council of the governorgeneral. Practically, its functions are to prepare the drafts of all legislative measures introduced into the governor-general's council, to consider, and in some cases to settle, the form of regulations submitted under the Government of India Act, 1870 (33 Vict. c. 3), and of the rules and regulations made under powers given by Acts of the governor-general's council, to consider Bills and Acts of the local legislatures with reference to penal clauses and other special points, and to advise other departments of the Government on various legal questions. The law member of council takes charge of some of the Bills introduced into the governor-general's council, and is a member and usually chairman of the select committees to which those Bills are referred. As to the general nature of his work, see the chapter on Legislation under Lord Mayo, contributed by Sir James FitzJames Stephen to Sir W. W. Hunter's Life of Lord Mayo (vol. ii. chap. viii). See also Sir H. S. Maine's Minute of 1868 on Over-legislation (Minutes, No. 204). (c) The military supply department and the office of the member in charge of that department have now been abolished. See East India (Army Administration) Report, 1909. Cd. 4574. A sixth member, placed in charge of the subject of education, was added in 1910. |