East India

Vict. c.

123. All orders, regulations, and directions lawfully made Orders of or given by the Court of Directors of the East India Company, Company. or by the Commissioners for the Affairs of India, are, so far [21 & 22 as they are in force, to be deemed to be orders, regulations, 106, s. 59.] and directions made by the Secretary of State under the Government of India Act, 1858.

Laying of documents before Parliament.

certain proclamations, &c., before

123A. All proclamations, regulations and rules made under Laying of the Indian Councils Act, 1909, other than rules made by a Lieutenant-Governor for the more convenient transaction of business in his Council, must be laid before both Houses of Parliament as soon as may be after they are made.

Definitions.

Parliament. [9 Edw. VII. c. 4,

8. 7.]

tions.

124. In this Digest the following expressions, unless the Definicontrary intention appears, have the meanings hereby respectively assigned to them; namely:

(1) The expression 'British India' means all territories and places within His Majesty's dominions which are for the time being governed by His Majesty through the GovernorGeneral of India or through any governor or other officer subordinate to the Governor-General of India (a).

(2) The expression 'India' means British India together with any territories of any native prince or chief under the suzerainty of His Majesty exercised through the Governor-General of India, or through any governor or other officer subordinate to the Governor-General of India (a). (3) The expression province' means any part of British India the executive government of which is administered by a Governor in Council, lieutenant-governor in Council, lieutenant-governor, or chief commissioner, and includes a presidency (b).

(4) The expression local Government' means a Governor in Council, lieutenant-governor in Council, lieutenantgovernor, or chief commissioner (c).

52 & 53 Vict. c. 63.

(5) The expression high court' means a court established for some part of British India by His Majesty's letters patent (d).

(6) The expression 'Indian Civil Service' means the service so designated in the rules now in force.

(7) The expression 'office' includes place and employment. The Interpretation Act, 1889, applies to the construction of this Digest (e).

(a) The definitions of British India' and 'India' follow those adopted in the Interpretation Act, 1889 (52 & 53 Vict. c. 63, s. 18), and in the Indian General Clauses Act, 1897 (X of 1897, s. 3 (7), (27)).

British India corresponds to the territories which were in the Act of 1858 described as the territories in the possession of or under the government of the East India Company,' and which were then held by the Company in trust for the Crown.

Aden is part of British India, and is included in the Bombay presidency. See the Aden Laws Regulation, 1891 (II of 1891).

India, as distinguished from British India, includes also the territories of Native States, which used to be described in Acts of Parliament as the dominions of the princes and States of India in alliance with Her Majesty,' or in similar terms. See, e. g., 24 & 25 Vict. c. 67, s. 22; 28 & 29 Vict. c. 15, s. 3; 28 & 29 Vict. c. 17, s. 1; 53 & 54 Vict. c. 37, s. 15.

The expression 'suzerainty' is substituted by the Interpretation Act for the older expression 'alliance,' as indicating more accurately the relation between the rulers of these States and the British Crown as the paramount authority throughout India. It is a term which is perhaps incapable of precise definition, but which is usefully employed to indicate the political authority exercised by one State over another, and approximating more or less closely to complete sovereignty. See Holland's Jurisprudence, ed. 7, pp. 45, 347, and below, Chapter V.

The territories of the Native States are not part of the dominions of the King, but their subjects are, for international purposes, in the same position as British subjects. For instance, under the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37, s. 15), where an order made in pursuance of the Act extends to persons enjoying His Majesty's protection, that expression is to be construed as including all subjects of the several princes and States in India. And it is possible that a subject of a Native State would not be held to be an 'alien' within the meaning of the Naturalization Act, 1870 (33 & 34 Vict. c. 14), so as to be capable of obtaining a certificate of naturalization under that Act. The expression 'prince or chief' seems wide enough to include the ruler or head-man, by whatever name called, of any petty tribe or clan or group, however rudimentary may be its political organization. But of course political authority may be so widely distributed among

head-men or elders, or members of the tribe or group, as to make the task of finding an individual or collective 'sovereign' very difficult. This difficulty is to some extent met by s. 2 of the Imperial Foreign Jurisdiction Act (53 & 54 Vict. c. 37).

It has sometimes been found difficult to determine whether a particular territory ought to be treated as part of British India, or of India in the wider sense, and questions have arisen as to the status of such territories as Kathiawar, Cooch Behar, and the tributary mahals of Orissa. See Empress v. Keshub Mahajun, (1882) I. L. R. 8 Cal. 985, and Re Bichitramund, (1889) I. L. R. 16 Cal. 667. The position of Kathiawar was carefully considered in two cases which came together in 1905 before the Judicial Committee of the Privy Council, Hemchand Devchand v. Azam Sakarlal Chhotamlal and The Taluka of Kotda Sangani v. The State of Gondal. A. C. [1906] 212. Both these cases were, in effect, appeals from decisions of British political agents exercising jurisdiction in Kathiawar. It was decided (1) that Kathiawar is not as a whole within the King's dominions; (2) that the right of appeal to the King in Council from British courts exercising jurisdiction outside British dominions is not limited to British subjects; (3) that the question whether an appeal lies to the King in Council from the decision of a British political agent in Kathiawar depends on whether the jurisdiction exercised is political or judicial in its character. In the two cases in question the jurisdiction was held to be political, and the appeals were dismissed.

India in the wider sense would not include French or Portuguese territory.

The expression' British India,' as defined above, includes the land down to low-water mark, and would ordinarily include the territorial waters of British India, though not the high seas beyond (R. v. Edmonstone, (1879) 7 Bom. Cr. Ca. 109). In 1871 the Bombay High Court held that the provisions of the Indian Penal Code applied to offences committed within a marine league of the shore of British India (R. v. Kastya Rama, 8 Bom. Cr. Ca. 63). But this decision is now affected by the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict. c. 73), as to which see the note on s. II.

For fiscal and protective purposes the Indian Legislature has made laws for Indian waters. See, e. g., the Transport of Salt Act, 1879 (XVI of 1879), and the Obstructions in Fairways Act, 1881 (XVI of 1881).

The settlements of Prince of Wales Island, Singapore, and Malacca were, in pursuance of the Straits Settlements Act, 1866 (29 & 30 Vict. c. 115, s. 1), removed from British India and placed under the Colonial Office.

(b) Province' is defined in the Indian General Clauses Act (X of 1897,8.3 (43)) as meaning the territories for the time beingadministered by any local Government.

(c) Local Government' is defined in the Indian General Clauses Act (X of 1897, s. 3 (29)) as meaning 'the person authorized by law

to administer executive government in the part of British India in which the Act or regulation containing the expression operates,' and as including a chief commissioner.

There are at present fifteen local Governments in British India, namely, the Governor of Bengal in Council; the Governor of Madras in Council; the Governor of Bombay in Council; the LieutenantGovernor of Bihar and Orissa; the Lieutenant-Governor of the United provinces of Agra and Oudh; the Lieutenant-Governor of the Punjab ; the Lieutenant-Governor of Burma; the Chief Commissioner of Assam; the Chief Commissioner of Delhi; the Chief Commissioner of the Central Provinces; the Chief Commissioner of British Baluchistan; the Chief Commissioner of Ajmere; the Chief Commissioner of Coorg ; the Chief Commissioner of the North-West Frontier Province; and the Chief Commissioner of the Andaman Islands. Under Act V of 1868 the powers of a local Government for certain purposes may be delegated to the commissioner in Sindh.

(d) This definition only includes the chartered high courts at Calcutta, Madras, Bombay, and Allahabad, and any chartered high courts which may be established under the Indian High Courts Act, 1911. The definition in the Indian General Clauses Act (X of 1897, s. 3 (24)) is wider, and includes the various judicial commissioners and the chief court of the Punjab.

(e) In a Digest of this kind it seems convenient to adopt the same general rules of construction as are applied to recent Acts of Parliament. The application of the Interpretation Act makes the definitions of British India' and 'India,' strictly speaking, superfluous, but they are set out on account of their importance.

SUPPLEMENTAL NOTES.

1. Omissions from Digest.

The following enactments have not been reproduced in this Digest, on the ground of either never having come into operation, or having ceased through change of circumstances to be in operation:

The power given by 13 Geo. III, c. 63, s. 9, for the Governor-General in Council to suspend the Government of Madras or Bombay in case of disobedience.

The express grant by 21 Geo. III, c. 70, s. 17, of jurisdiction over all inhabitants of Calcutta.

The saving in 21 Geo. III, c. 70, s. 18, for the rights of fathers of Hindu and Mahomedan families and rules of caste.

The procedure under 24 Geo. III, sess. 2, c. 25, ss. 66 and 77, for constituting a special court for the trial of Indian offenders. This machinery has never been put into force.

The provisions in 33 Geo. III, c. 52, s. 41, as to the duty of local Governments in the case of conflict between the orders of the GovernorGeneral in Council and the orders of the Directors of the East India Company.

The provision in 33 Geo. III, c. 52, s. 70, as to forfeiture of office after absence for five years.

The requirement in 37 Geo. III, c. 142, to send to the Board for Affairs of India the forms and rules made in India as to process in the recorders' courts.

The enactments in 53 Geo. III, c. 155, ss. 42, 43, as to the control of the India Board over colleges and seminaries in India, and as to the provision to be made for public education in India.

The provision in 53 Geo. III, c. 155, ss. 85, 86, as to the precedence of civil servants.

The provisions in 6 Geo. IV, c. 85, s. 5, as to the payments to be made in the case of judges and bishops.

The provision in 3 & 4 Will. IV, c. 85, for dividing the Presidency of Fort William into two presidencies.

The provision in section 56 of the same Act for the government of Bengal by a Governor in Council.

The express power given by section 86 of the same Act to hold land in India.

2. Powers of Governor-General to grant Military Commissions.

Questions have sometimes been raised as to the power of the governorgeneral, either alone or in council, to grant military commissions, with command over officers and men of the regular forces, and as to the effect of commissions so granted, and as the answer to the question depends on a series of enactments and other documents, it seems worth while to state it somewhat fully.

Before the passing of the Government of India Act, 1858 (21 & 22 Vict. c. 106), the Governor-General in Council granted commissions to officers of the troops of the East India Company.

The power to grant such commissions may be presumed to have been derived from the charters and Acts relating to the East India Company.

According to Sir George Chesney (Indian Polity, 3rd edition, ch. xii), the first establishment of the Company's Indian army may be considered to date from 1748, when a small body of sepoys was raised at Madras, after the example set by the French, for the defence of that settlement, during the course of the war which had broken out four years previously between France and England. At the same time a European force was raised, formed of such sailors as could be spared from the ships on the coast, and of men smuggled on board the Company's vessels in England by the crimps. An officer (Major Lawrence) was appointed by a commission from the Company to command their forces in India.

In 1754 an Act (27 Geo. II, c. 9) was passed for punishing mutiny and desertion of officers and men in the service of the United Company of Merchants of England trading to the East Indies, and for the punishment of offences committed in the East Indies, and at the island of