Governor-General in Council or some authority subordinate to him.' No such declaration has yet been made.

The territories within the limits of the Order are expressly declared to include the territorial waters of those territories. For instance, they include the territorial waters of Cutch.

The powers expressly conferred by the Act of 1890 of sending persons for trial to British territory (s. 6) and of assigning jurisdiction, original or appellate, to Courts in British territory (s. 9), may occasionally be found useful, but hardly go beyond the powers previously exercised in practice in accordance with the provisions of the Indian Acts.

The Act of 1890 does not contain any provision corresponding to s. 5 of the Indian Act of 1879, under which a notification in the Gazette of India was made conclusive proof of matters stated in relation to the exercise or delegation of jurisdiction. But, by s. 4 of the Act of 1890, a Secretary of State is empowered, on the request of a court of civil or criminal jurisdiction, to send an authoritative decision on any question which may arise as to the existence or extent of any jurisdiction of His Majesty in a foreign country.

The cases in which an authoritative decision of this kind, given under a full sense of political responsibility, is most likely to be found useful, are cases where jurisdiction, limited to special classes of persons or subjects, is exercised beyond the limits of India. With respect to the Native States of India one may anticipate that it will rarely, if ever, be needed. In these States there is no doubt that the British Crown has power and jurisdiction, and that this power and jurisdiction is delegated to the Governor-General in Council, and experience shows that the doubts which have from time to time been suggested as to the nature and extent of the powers so delegated rarely give rise to practical difficulties.

The Governor-General, as representative of the paramount power in India, has and exercises extensive sovereign powers over the Native States of India. Those Native States have often, and not improperly, been described as protectorates.

Classes of persons to which jurisdiction

extends.

But they are protectorates in a very special sense. They differ materially from the European protectorates to which reference is made in text-books of European international law. They also differ from the protectorates established over uncivilized tribes and the territories occupied by them in Africa, because in all the Indian Native States, with the exception of some wild regions on the frontier, there is some kind of organized government to undertake the functions of internal administration. For the purposes of municipal law their territory is not British territory, and their subjects are not British subjects. But they have none of the attributes of external sovereignty, and for international purposes their territory is in the same position as British territory and their subjects are in the same position as British subjects. On the other hand, the Secretary of State has been advised that the subject of an Indian Native State would be an alien within the meaning of s. 7 of the Naturalization Act, 1870 (33 & 34 Vict. c. 14), so as to be capable of obtaining a certificate of naturalization under that section. Finally, the rulers of Indian Native States owe political allegiance to the King-Emperor. These peculiarities have an important bearing on the jurisdiction exercisable over European foreigners within the territories of those States.

In point of fact the jurisdiction of the Governor-General in Council within the territories of Native States is exercised— (a) over European British subjects in all cases;

(b) over native Indian subjects in certain cases;

(c) over all classes of persons, British or foreign, within

certain areas.

It is the policy of the Government of India not to allow native courts to exercise jurisdiction in the case of European British subjects, but to require them either to be tried by the British courts established in the Native State, or to be sent for trial before a court in British India.

The Government of India does not claim similar exclusive jurisdiction over native Indian subjects of His Majesty when

within Native States, but doubtless would assert jurisdiction over such persons in cases where it thought the assertion necessary. Apparently it does not in ordinary cases treat as native Indian subjects of His Majesty persons who are natural-born subjects by statute, that is to say, by reason of being children or grandchildren of native Indian subjects. But perhaps the question how such persons ought to be treated does not arise in a practical form.

The Government of India does not, except within special. areas, or under special circumstances, such as during the minority of a native prince, take over or interfere with the jurisdiction of the courts of a Native State in cases affecting only the subjects of that State, but leaves such cases to be dealt with by the native courts in accordance with native laws.

The question as to whether the jurisdiction is exercisable over European foreigners in the territory of a Native State, if it should arise, would doubtless be answered as in the case of African protectorates. Even if consent of the foreigner's Government were held to be a necessary element of the jurisdiction in such cases, the notorious fact that a Native State of India is not allowed to hold diplomatic or other official intercourse with any other Power, and the general recognition by European States of the relation in which every such Native State stands to the British Crown, would doubtless be construed as implying a consent on the part of the Government of any European or American State to the exercise by British courts of jurisdiction. Indeed, for international purposes, as has been said above, the territory of Native States is in the same position as the territory of British India.

There are certain areas within which full jurisdiction has been ceded to the Government of India, and within which jurisdiction is accordingly exercised by courts and officers of the Government of India over all classes of persons as if the territory were part of British India. The most conspicuous instance of this is the district known as the Berars, or as the

Hyderabad Assigned Districts, which, although held under a perpetual lease, and administered as if it were part of the Central Provinces, is not, technically, within British India.1 The same appears to be the position of the residencies and other stations in the occupation of political officers, and of cantonments in the occupation of British troops.

Under arrangements which have been made with the Governments of several Native States, 'full jurisdiction' has been ceded in railway lands within the territories of those States. The effect of one of these grants was considered in a case which came before the Judicial Committee of the Privy Council in 1897.3 In this case a magistrate at Simla issued a warrant for the arrest of a subject of the Nizam, in respect of an offence alleged to have been committed by him at Simla. The warrant was executed within the area of railway lands over which 'full jurisdiction' had been conceded by the Nizam, and the question was whether the execution of the warrant under these circumstances was legal. It was held that for the purpose of ascertaining the nature and extent of the 'full jurisdiction' conceded, reference must be made to the correspondence which had taken place between the Government of India and the Nizam, as showing the nature of the agreement between them, that on the true construction of this correspondence, the jurisdiction conceded must be limited to jurisdiction required for railway purposes, and that consequently the execution of the warrant was illegal.

The position of the residencies and cantonments in the territories of Native States has often been compared to the extra-territorial character recognized by European international law as belonging to diplomatic residencies and to cantonments in time of war. There is an analogy between

1 See East India (Hyderabad) Agreement respecting the Hyderabad Assigned Districts, 1902; Cd. 1321.

2 As to the civil and military station of Bangalore, see Re Hayes, (1888) I. L. R. 12 Mad. 39.

• Muhammed Yusuf-Ud-Din v. The Queen Empress (July 7, 1897).

the cases, but it is unnecessary to base the jurisdiction exercised in those places on that analogy. As has been seen above, the jurisdiction exercisable by the courts of a protecting State within the territories of a protected State may extend to all or any of the subjects, either of the protecting State or of the protected State, and, subject to certain limitations, to persons not belonging to either of these categories. The extent to which, and the cases in which, the jurisdiction is exercised over particular classes of persons are to be determined by agreement between the State which exercises the jurisdiction and the State within whose territories the jurisdiction is exercised, and, in the absence of express agreement, are to be inferred from usage and from the circumstances of the case.

In connexion with this subject, it may be useful to quote Sir Henry Maine's remarks in his minute on Kathiawar 1:

'It may perhaps be worth observing that, according to the more precise language of modern publicists, "sovereignty" is divisible, but "independence" is not. Although the expression "partial independence" may be popularly used, it is technically incorrect. Accordingly, there may be found in India every shade and variety of sovereignty, but there is only one independent sovereign, the British Government. My reason for offering a remark which may perhaps appear pedantic is that the Indian Government seems to me to have occasionally exposed itself to misconstruction by admitting or denying the independence of particular States, when, in fact, it meant to speak of their sovereignty.

The mode or degree in which sovereignty is distributed between the British Government and any given Native State is always a question of fact, which has to be separately decided in each case, and to which no general rules apply. In the more considerable instance, there is always some treaty, engagement, or sunnud to guide us to a conclusion, and then the only question which remains is, what has become of the sovereign rights which are not mentioned in the Convention? Did the British Government reserve them to itself, or did it intend to leave the Native Power in the enjoyment of them? In the case of Kattywar the few ambiguous documents which bear on the matter seem to me to point to no certain result, and I consider that the distribution of the sovereignty can only be collected from the de facto relations of these States with the British Government, from the course of action which has been followed by this Government towards them. Though we have to interpret this evidence ourselves, it is in itself perfectly legitimate.

1 Minutes by Sir H. S. Maine, No. 22, at p. 37.