§ Order of the Day for the House to be put into a Committee read.
§ Moved, That the House do now resolve itself into a Committee on the said Bill.
THE MARQUESS OF CLANRICARDErose to ask Her Majesty's Ministers to lay upon the Table of the House Copies of all Reports, Minutes, or other Record of opinions of Members of the Indian Council, or of Committees of that Council, relating to the Bills concerning India now before this House? He made this request, not from any feeling of hostility towards the Bill, but because he desired to know what were the opinions of the able and eminent men who formed the Council of the Secretary of State for India with respect to the measures for the government of India which were, or were about to come, before their 940 Lordships. The Council was constituted that it might advise, not only the Secretary of State, but Parliament, and it would be a waste of means of information which were within their reach if they did not ascertain what were the opinions entertained by the Members of that Council with regard to these measures. The noble Earl who had charge of the Bill (Earl de Grey) had said that it was sanctioned by the Indian Council; but all these measures had been a good deal altered since they were first in contemplation, and he was anxious to know what opinion the Members of the Council entertained of them as they now stood. It was the rule that if a Minister referred in the course of a debate to any despatch he was bound to produce it, and, in the same way, the opinions of Members of the Council ought to be laid before the House if any allusion was made to them by any Member of the Government. It had been said, he believed, that if these opinions were produced the Secretary of State would be debarred from asking his Council for advice in future. He saw no reason why that should be; but, of course, if his noble Friend assured him that the publication of the papers he asked for would be attended with any inconvenience to the public service, he would not press for them. As he had already stated, he was generally in favour of the present Bills. He believed that the leading principles of the measures were in the right direction. He approved the formation of the local Legislatures, and the admission into them of Natives and persons unconnected with the Government; but he doubted the wisdom of the clause as to the formation of the Legislative Council of the Governor General. When the Council of India was established it was not contemplated that their opinions should be kept secret, even when they differed from the Secretary of State—still less was there any occasion for secrecy when they agreed with him. He hoped the Government would not object to the production of these papers.
EARL DE GREY AND RIPONsaid, he could not help thinking his noble Friend (the Marquess of Clanricarde) was under some misapprehension, first, as to the existence of the documents for which he had moved; and further, as to the functions of the Indian Council and the mode in which business was carried on in the Indian Department. His noble Friend proposed that there should be laid before Parliament copies of any Reports, Minutes, or other 941 records of Members of the Indian Council, or of Committees of the Council, on the subject of these Bills. Now he (Earl de Grey and Ripon) wished to point out that a distinction must be drawn between Reports of Committees of the India Council and any documents emanating from that body in their collective capacity as constituted by Parliament. The Indian Council, for the purpose of carrying on its daily business, was divided into committees, each of which considered the questions and papers that might be referred to them, and made reports, which corresponded precisely to the Minutes of Departments drawn up by subordinate officers in other branches of the service. He must point out to his noble Friend that it would not be for the convenience of the public service if reports of committees of this description were laid before Parliament. They had none of the force and character which attached to the recorded opinions of the Members assembled in Council, and it would obviously be inconvenient to produce them. The noble Marquess, alluding to what had been said by the Secretary of State for India in "another place," described his right hon. Friend as having said that, if these papers were laid before Parliament, a Minister would never consult with his Council at all. But his right hon. Friend the Secretary of State had not and could not have made any such statement. What his right hon. Friend said was that, if the confidential reports made by committees of this description were laid before Parliament it would lead to a different mode of transacting the business of the Department, and the discontinuance of such committees. It was not the practice of the India Council for Members of it to give their reasons for assenting to or dissenting from every measure which was laid before it. When the Secretary of State decided against the opinion of several Members of the Council, or overruled the majority, it was usual for them to record their dissents; and, except under very peculiar circumstances, there could be no objection to the publication of any such dissents. Generally speaking, however, the opinions of the Members were given in conversation, and, as there was no reporter present to not down what they said, there was no record of the discussion to produce. As to the three Bills now before Parliament, no dissents had been recorded. The dissents which were made with regard to the India Civil Service Bill of last year, but 942 which had no reference to the measure of this Session, had already been made public. Their Lordships must not forget that the duty of the India Council was to advise the Secretary of State, and not Parliament, and that it really formed part of the Executive Government. His right hon. Friend was anxious to afford every information in regard to the India Bills now before Parliament which was consistent with the interests of the public service, but, for the reasons he had stated, he trusted their Lordships would not insist that the reports of committees of Council should be laid on the table. When he spoke the other night of the opinion of the Council on the present Bill he did so in the most general terms. He said that it had met with their general approval; and that was a simple statement of the conversations which took place in the Council on the subject.
§ THE EARL OF ELLENBOROUGHunderstood that the object of the noble Marquess was to have produced, for the information of their Lordships, any papers which might show what the individual opinions of the members of the Indian Council were with regard to the particular measure now before Parliament. It seemed to him very extraordinary that the Council of India should couduct its business in such a manner as to have no record of its proceedings to produce. No doubt, the Council existed generally to give advice to the Secretary of State; but when it was established it was certainly contemplated that such a body, composed of able men, well acquainted with all subjects connected with India, would also inform and guide the legislation of Parliament on these questions. He very much regretted that a different system now prevailed. One observation he felt bound to make as to the grounds upon which certain propositions were submitted by the late Government with regard to the constitution of the Council. He then held, and still held, the confident belief that it was perfectly impossible, at this time of the day, to create any new institution whatever which should have real authority in the country unless it was, to a considerable extent, founded upon representation. It was with that view that he and his noble Friend (the Earl of Derby) had attempted in 1858 so to constitute the Council, as to give it in some degree the character of a representative body. No doubt, the arrangement was generally considered unsatisfactory, but 943 that was the object with which it was proposed. In particular it was proposed that there should be placed in the Council two gentlemen representing the cotton interests of Glasgow and Manchester. If that proposition had been adopted they would probably not have now to regret, as they would did, the want of that supply which would make them independent of America. The object of that proposition was to place in the Council men who would constantly urge upon the Government of India to take measures to secure and independent supply of cotton, and he greatly regretted that that view was not adopted.
§ Motion agreed to.
§ House in Committee accrodingly.
§ Clause 1 and 2 agreed to.
§ Clauses 3 (Composition of the Council of the Governor General of India),
§ THE EARL OF ELLENBOROUGHsaid, that the principle of fixing the salaries of important personages by Act of Parliament was not adhered to by Her Majesty's Government, for not only did this clause enable the Secretary of State in Council to alter the salaries of the members of the Council of the Governor General, but another Bill gave power to alter the salaries of the Judges, which, he believed, was quite unprecedented.
§ Clause agreed to.
§ Clauses 4 and 5 agreed to.
§ Clause 6 (Provision on Absence of Governor General in other Parts of India),
§ THE EARL OF ELLENBOROUGHsaid, he wished to draw their Lordships particular attention to this clause, the provisions of which were altogether new. In case the Governor General in Council should deem it expedient for him to visit any part of India unaccompained by his Council, this clause provided that a law or regulation should be passed to enable him to exercise alone the powers which he might execute in Council, except that of making laws or regulations. It would be all very well if the body which had to make the law was the same as the body which decided on the expediency of the Governor General visiting the provinces without his Council. But by this Bill a different kind of Council was created by which the law would have to be made from that which had to advise the Governor General, and it was not only possible, but, he thought, very probable, that the legislative portion of the council would decline to pass the 944 Act. As they knew nothing whatever of the transactions of the Government, they could only be cognizant of the circumstances which made it expedient that the Governor General should go from common conversation and rumours in the public papers, and they might make that a ground for refusing these powers. He would suggest that, instead of a law, an ordinance should be sufficient, signed by the Governor General in Council, so that those who declared the necessity of his going should have the power of enabling him to go.
§ Clause amended; and agreed to.
§ Clause 7 (Provision on Absence of Governor General from meeting),
§ THE EARL OF ELLENBOROUGHsuggested that, as the usual residence of the Governor General was at Barrackpore, sixteen miles form Calcutta, words should be inserted to require the signature of the Governor General to Orders in Council at which he was not present, if made at Calcutta, as was required by the words of the clause "if such Governor General shall be resident at the place at which such meeting shall be assembled." He proposed to add to those words "or within twenty miles."
EARL DE GREY AND RIPONobjected, on the ground that the existing law was not altered, and no inconvenience had arisen.
§ Clause agreed to.
§ Clause 8 (Power of Governor General to make rules for the Conduct of Business),
§ THE EARL OF ELLENBOROUGHrequested the earnest attention of their Lordships to this clause. The Governor General had hitherto been in India solely responsible for every act of his Government. By this clause he was to divide his responsibility among the Members of his Council. He thought it a most dangerous proceeding, and one which would lead to great public inconvenience. He gathered that the object of the clause was to enable the Governor General to save himself a great deal of trouble by turning on Members of his Council the direction of separate departments, which was the introduction of a novel principle. Of course, the military man placed at the head of the Military Department would take the whole direction of it, and the Governor General would thus deprive himself of one the most important powers which he possessed—that of directing all military matters. When he was in 945 India he wrote with his own hand every single letter or importance in the Military Department. The position of the Governor General would be altogether different if the whole direction of the Military Department were taken form him by the military Members of Council, not selected by himself, but by the Secretary of State in Council at home, whose views might, perhaps, altogether differ from those of the Governor General. The Governor General could not interfere in any way, for whatever the military Member did would become an act of Council. The Military Member might be removed from that department by the Governor General, but he would still remain in the Council to obstruct every measure of the Governor General. But what would be the position of the successors of the present Governor General? It was said to be Lord Canning's intention to return home next spring, so that he would only remain four or five months after this Act went out. He would make rules and regulations for the transaction of the business, and would place certain gentlemen at the head of the different departments; and the succeeding Governor General might entertain a totally different opinion as to the best mode of transacting business and might think it necessary to revert to the old system; so that the very first act of his Government would be to give mortal offence to those gentleman with whom it was absolutely necessary that he should work well. This idea was not a new one—it was, in fact, a very old idea which had never yet been acted upon. Thirty years ago a question was put in a Committee to Mr. Mountstuart Elphinstone on this very proposition, and he gave a very decided opinion against it.
EARL DE GREY AND RIPONsaid, the object of the clause was simply to enable the Governor General to make such rules and regulations from time to time as he might think fit, and it was founded on the strong recommendation of the present Governor General. In his despatch on the subject Lord Canning said—
The fault of the present constitution of that Council is the waste of labour and the delays that it entails. This has been mitigated of late; but not so much as it might be. It has arisen chiefly from the fact that the wording of the law and long usage appear to prescribe that every act of the Governor General in Council, beyond those of mere routine (and not always excepting these), must be done with the actual consideration and concurrence of all the Members of the Council. This tradition was not long ago broken through, 946 but not without misgivings on the part of some Members of the Government as to whether they were not unduly divesting themselves of the responsibility fixed upon them. A division of departments has, however, to some extent taken place, and the result has been good.The evils of the previous state of things was felt by Lord Dalhousie also, and he made certain changes in the direction of those which Lord Canning now proposed. He had the high authority of Mr. Cecil Beadon for saying that his practical experience had convinced him that some such arrangement as this was most desirable. The whole effect of the clause would be that in mere departmental matters the Governor General would place some Member of the Council at the head of each department to whom all the papers would be referred; but the authority of the Governor General would not in the last degree be weakened. It would enable the Executive Council to conduct the business in the manner they might think most convenient without being subject to the present restrictions.
§ THE EARL OF ELLENBOROUGHsaid, that when he was in India he introduced a change in the manner of conducting the business of the Council, which saved a great deal of time. Formerly the Council met twice a week, when the secretaries of the different departments were introduced, and all the business accumulated since the last meeting was transacted. The reading of the letters, their discussion, and the making of orders often occupied the Council from eleven to five o'clock, and frequent delays and accumulations of business took place. He then proposed that all the letters should be sent to him in the first instance, and that in each case where he had no doubt he would write in pencil what should be done, and in those on which he wished to advise with the Council he would write "Reserve." The letters would then be sent round to the Council, and if any Member doubted the expediency of what he proposed, or wished to consult his colleagues, he would write "Reserve" on the letter, and the matter would then be brought before the Council at the next meeting. In practice he found that he wrote "Reserve" much more frequently than any of his colleagues. Whatever he suggested was almost always adopted. The result was that instead of sitting six hours the Council generally rose in an hour and a half, and thus most valuable time had been saved. If Lord Canning 947 had gone back to the old system he could very well understand that he would be overwhelmed with business. The opinions of Mr. Mountstuart Elphinstone on this point were so strong that he would read them. These were the questions put to him by the Committee, and the answers which he returned—
The Members of Council being usually persons of high character and long standing in the service, would it not be advantageous to delegate to them particular functions in the Government, so that the public might avail themselves of their services to the fullest extent?—If they were put at the head of departments, the Government remaining on its present footing, each would be responsible for his own department, and the Governor would be in a measure superseded; the opinion of these heads of the departments in Council would then have much greater weight than it has at present, and the Governor's attention would be drawn from the department committed to each individual.If that power were distinctly given to the Governor, of which you have spoken, of acting on all occasions independent of his Council, might not, in that case, the services of the Members of Council, being personally responsible for the good management of the departments over which they presided, be usefully available for the public service? I think the head of a department would be more effectually responsible if he were not a Member of Council.
THE DUKE OF ARGYLLthought that the interesting extract just read by the noble Earl referred to a wholly different proposition from that now under discussion. It was not proposed that each Member of the Council should be put in charge of a Department, but that the Governor General in his own Council might distribute the business according to his own sense of the exigencies of the Department. His noble Friend (Earl De Grey and Ripon) had quoted from Lord Canning's despatches. He would read a little further. Lord Canning said that practically a division of Departments had taken place, and he added—
I would recognize this division by law, and I would carry it out more distinctly. For this purpose the law should declare that it shall be in the power of the Governor General to charge each Member of the Council with the direction of such Department of the Government as he may think fit; and that, subject to any regulations which the Governor General in Council may lay down, the orders of that Member of the Council should in that Department be held to be the orders of the Governor General in Council. It is not possible or desirable to define by law what questions should be submitted to the whole Council. Subjects constantly arise upon which it is quite right that a Member of Council should consult the Governor General, but which it would be a waste of time to bring before every Member of the Council. The 948 practice should be regulated, as in the English Cabinet, by good understanding and common sense, and by the paramount authority of the head of the Government. There is no fear that any important questions would be kept from the consideration of the whole Council by such a change.The clause now proposed would authorize the Governor General from time to time to make such regulations as he thought necessary for the more convenient transaction of business; and if the division of work which he made were found inconvenient, or if his successor disapproved it, the regulation might be altered or remodelled in a moment, according to the views of the Governor General for the time being. Among the Council there was a military Member, a legal Member, and one acquainted with finance; and he thought there would be no practical difficulty in distributing the business among them, so that each Member of the Council should be fairly conversant with the questions referred to him.
§ EARL GREYadmitted the advantage of a greater division of labour among the Members of the Council. The complicated affairs of so large an empire could not be properly carried on unless there were some such division. But the question was should that division be provided for by a specific law? It seemed to him that it was an innovation, and rather a dangerous one, to provide by Act of Parliament that the Order of individual Members of the Council should, under certain circumstances, have the force of an Order of the Governor General in Council. As to the argument of Lord Canning, it really answered itself, because it pointed out what was the right way of effecting this division of labour—namely, by a good understanding among the Council and by agreement between them that certain questions should be disposed of by certain Members, reference being made in cases of necessity to the whole Government. The clause seemed to him to be an unnecessary one, and, being unnecessary, it would be safer to omit it.
§ VISCOUNT HARDINGEsaid, that when his father went out to India the noble Earl (the Earl of Ellenborough) told him that, unless he adopted some such arrangement as he had indicated for facilitating work in the Council, he would come to a deadlock. His father immediately assented to the noble Earl's proposition, and during the time he held office he did not experience the slightest difficulty in the busi- 949 ness of the Council. He did not think that any sufficiently strong case had been made out for this change.
EARL DE GREY AND RIPONsaid, that according to the present law, the Governor General could not legally carry out the arrangement which was proposed unless he obtained the power to do so by Act of Parliament; because the acts which were to be done by the Governor General must now be done by the Governor General and the whole Council.
§ EARL GREYadmitted that the existing law provided that questions should be disposed of by the whole Council; but that did not interfere with the understanding among the Members of the Council themselves to rely on each others judgment in certain matters. The practice of the Admiralty was to confide in each others judgment upon ordinary questions, and to adopt, as a matter of course, the recommendations of individual Members upon points referred to them, without the loss of time which would be occasioned by an investigation of details. He could not understand why the same practice should not be adopted in India.
§ On Question, Clause agreed to.
§ Clause 9 agreed to.
§ Clause 10 (Additional Members to be summoned for the Purpose of making Laws and Regulations),
§ EARL GREYsaid, he looked upon this as the most important clause of the Bill, and it would have an important bearing upon the future welfare, perhaps upon the future safety, of our Indian Empire. Unfortunately, he was absent from the House upon the second reading of this Bill, but he had read the debate which took place on that occasion, and it certainly appeared to him that strong objections were urged against the clause. He thought it would not be right to urge objections without at the same time suggesting some means of amending the fault, and he had, therefore, drawn up an Amendment, to which he earnestly hoped the Government would assent. The existing Legislative Council in India was an admitted failure. It was "a mock Parliament," in which the opposition to the Government was led by a Judge; and this was felt to be an evil so urgently requiring the interference of Parliament that it was probably the cause of the present Bill. What he feared, however, was that the Bill as it stood would not correct the evil complained of. It would, indeed, meet a portion of that evil. 950 It would correct the anomaly of allowing a Judge to take an active part in political matters in opposition to the Ministry. It had been well described, in fact, as a Bill for putting down Sir Barnes Peacock, and it would have no other effect whatever as regarded the character of the Legislative Council. But he did not see how this enactment would prevent a repetition of the evil complained of—its effect would really be in an opposite direction from that desired, because the increase in the number of the Council and the position of independence in which many of the Members would stand would not be likely to diminish the disposition among them to assume functions which did not properly belong to them, and to constitute themselves a mock Parliament. Nor did the Bill contain any provisions for putting an end to the publicity which was now found so detrimental. The silence of the measure on this head implied, he supposed, that the existing system was to be left untouched. Probably after that system had once been in force no Governor General, unsupported by Parliament, would venture to change it. From the reported speeches of the Government in both Houses he understood it to be their intention to leave things in this respect as they now were; and he could not find fault with them for coming to that determination, because, while he concurred with those who thought that Lord Dalhousie had made a great mistake in opening the doors of the Council to the public, still, when that had once been done, and when the people of India had become accustomed to know what went on in the discussion of measures, he greatly doubted whether it would be expedient to make any change, unless some other means were adopted by which a public discussion upon laws which were proposed might take place before those laws were finally passed. It appeared to him that under this clause they would have a body more numerous than the existing Council, probably more difficult to manage, and more inclined to extend its powers. He thought this would be a very dangerous result. Perhaps he felt the danger more from the circumstance that during the time he had the honour to hold the office of Colonial Secretary it was his duty to watch the proceedings of the Legislative Councils in some of the colonies; and his experience of the working of these bodies had impressed him with a strong conviction of the danger of their proceedings being in public. The 951 additional Members were to hold their seats for two years, whether the Governor General desired it or not. Was it by any means certain that the Governor General would have it in his power to carry the measures he might propose? It it were understood that the official Members of Council would in all cases support the measures of the Governor General, then the Legislative Council would cease to be a deliberative body. If they were to act together in the same way that in this country the Members of the Government in both Houses acted together it would be necessary that the measures to be submitted to the Council should have been considered by the Governor General and his Executive Council previously. But would there be no temptation to make speeches in the Council, addressed, not to the Members of it, but to the public of Calcutta and the public of India? Would there be no danger of weakening the Government and obstructing the Executive? If confidence among the Members of the Government as to the proceedings in the Council were shaken, it would be impossible for the Members to act in harmony in carrying on the executive service. He believed it to be absolutely essential that the opinions of the Council should be given in private. Publicity was impossible even for the most harmonious Cabinet that was ever brought together. Unanimity could not always be secured in Cabinets in this country, and in India the position of its members was very different. The gentlemen who held high offices in India had adopted the public service as a profession, had devoted their whole lives to it, and had risen to their high position by long service. It could not be expected that men in this position would forfeit all they had gained by the long labour of a life, by resigning office if they did not approve the measures of the Governor General. He was persuaded that in difficult times, and on questions that excited great public interest, it would be practically impossible for the Governor General to enforce support of his measures by the penalty of dismissal. These were insurmountable objections to the arrangement proposed by this clause. In the present state of society in India he believed it was impossible to establish anything like representative government. He thought the power of legislating should be concentrated in the hands of the Governor General and the Executive Council; but that power should be exercised, in the first place, sub- 952 ject to a responsibility to the Home Government and the Imperial Parliament, and, in the next place, he should be required to take such a course that public opinion in India might be declared on his measures before they were finally adopted. With these views he had ventured to propose the Amendment he intended to move. Its effects would be, in the first place, to leave legislation in the hands of the Governor General in Council. But he proposed that another body should be constituted, that for the want of a better name, should be called a Council of State, limited in number but still comprising as many members as might be found convenient, and consisting of men of the most distinguished character and station in India of different races and professions, so that the whole community might be fairly represented. Form this body the Governor General should have the power of nominating Committees to inquire into any subject on which legislation might be required, and to prepare draughts of laws upon them. He further proposed that all draught laws which the Governor General thought were proper to be passed should, before being finally considered, be submitted to a meeting of the Council of State. That meeting he thought might, without inconvenience, be allowed to take place in public, and each member of the Council could freely express his opinion. He thought, also, that the nomination to this Council should convey honour and distincition; but his clauses contained no reference to precedence or dignity, because he thought honours should be conferred by the Crown, and not by Parliament. He also suggested that it should be in the power of the Governor "General to refer to that Council any petitions presented to him in favour or against any draught law then under the consideration of the Government, and that the Governor General should also have power to authorize the petitioners, or other persons deputed for that purpose, to appear before the Council of State in support of their petitions. He further suggested that the Governor General should have power of calling together, in convenient places, those members of the Council who were unable to attend at the seat of Government, to consider proposed acts of legislation. Those members would be allowed to send in reports to the Governor General, showing what their opinions were upon matters affecting the general interests of India. Those were the principal features of the 953 arrangement proposed by his clauses; but, if the general principle upon which they were based received the sanction of the House, he was quite aware that their from would require careful consideration. Some such arrangement had been suggested by an experienced and noble Friend, and also by the history of events that had occurred in a neighbouring country. Some of the greatest laws passed during the reign of the first Napoleon, and some of them were so beneficial that their enactment in some degree compensated for the harassing wars in which Napoleon kept France engaged. Those laws were mainly put into shape by the Council of State, a body which possessed no legislative powers, but was simply a consultative body. The precedent of that Council of State had suggested itself in this instance as quite applicable to the circumstances of India. He would only further remark, in reference to the Bill as it stood, that it imposed upon the Legislative Council two distinct, and as he thought, inconsistent duties. The Legislative Council was to inform the Governor General of any objections to measures proposed, and was also to have authority to pass those measures. There would arise this difficulty—that if that body were made sufficiently numerous and independent to enable them to bring before the Indian Government these objections, and, at the same time, were endowed with authority which the Governor General could not overrule, there would be a serious danger of the whole machine being brought to a dead lock. But if, without giving power to interfere, and reserving the ultimate power of the Governor General intact, it was provided that the functions of the Council of State should be confined to considering and reporting upon proposed measures of legislation, he thought they might without danger enlarge the basis of that body and admit a larger number of persons. That was the leading idea of the Amendments he should propose, and to which he invited their Lordships to give their sanction. The noble Earl then proposed the first of the following Amendments of which he had given notice;—
To leave out from ('Governor General in Council') to the End of the Clause, and insert the following Words, ('there shall be appointed also a Council of State to assist in the Preparation and Consideration of such Laws and Regulations. The Governor General shall have Power to appoint from Time to Time such Persons as he may think fit to be Members of the Council of State, and also to remove the Persons so appointed; but all such 954 Appointments or Removals shall be only provisional until confirmed by the Secretary of State for India in Council.')After Clause 10 to add the following Clauses (A.), (B.), (C.), and (D.)Clause (A.) It shall be lawful for the Governor General to direct the Council of State, or any Committee of that Body he may nominate for the Purpose, to inquire into any Subject on which Legislation may be required, and to prepare Drafts of Laws thereupon.Clause (B.) Except in Cases of Emergency the Drafts of all Laws intended to be passed by the Governor General in Council shall be submitted to the Council of State, and shall be considered by that Body at One or move Meetings to which all the Members shall be summoned. It shall be the Duty of the Council of State to report to the Governor General in Council their Opinion on the Drafts of all Laws so laid before them, and to suggest any Amendments which they may consider to be required therein.Clause (C.) It shall be lawful for the Council of State, with the Consent of the Governor General, to be signified by him in each Case, to take Evidence with regard to any Draft Law laid before them or any Amendment suggested therein, and likewise to hear Arguments in support of Petitions for or against any proposed Law by Persons appointed for that purpose with the Approval of the Governor General.Clause (D.) If by reason of the Distance at which they reside any Members of the Council of State should be unable to attend conveniently at the general Place of Meeting, it shall be lawful for the Governor General to direct that such Members shall meet separately at any other Paces he may appoint, to consider the Draft Laws laid before Council of State; and the Members so assembled shall be empowered to present District Reports to the Governor General in Council on the Draft submitted to them.
EARL DE GREY AND RIPONsaid, the object which the Government had in view in framing the Bill of which this clause was a most important part was to make as few changes as possible in existing legislation in regard to India, and only to make those changes which those who had most experience of the working of the existing system pointed out as being required. The noble Earl (Earl Grey) had adopted another course, and proposed to establish a body of a novel character and without precedent in any previous system pursued by this country since we had acquired our Indian possessions, and, therefore, the noble Earl was bound to point out how the Bill was open to the serious objection of tending to perpetuate existing evils, and also that the remedy which he proposed would obviate those evils without creating others of greater extent. Unless that could be shown he thought he had a right to ask their Lordships not to assent to the Amendment. The noble Earl said that the 955 changes which the Bill would make in the Legislative Council would not remedy the evils which were found to exist. By the mode in which the Act of 1853 had been workad, the character and powers of a little Parliament were no doubt conferred upon the Legislative Council; but there was nothing in the present Bill which tended to perpetuate that evil. On the contrary, care had been taken to render in most distinct, that the Government had no intention of establishing in future any thing of the character of a Parliament. Moreover, the expression "Legislative Councillors," which occurred in the Act of 1853, was not contained in the present Bill; and to protect themselves against misconception in India the Bill laid down the precise limits of the questions which the Council were to entertain and the course which they were to pursue. The noble Earl complained that the Bill did not make any reference to the subject of publicity, The question of publicity only applied to the Legislative Council when it assembled for legislative purpose, and on that subject the Bill, no doubt, did not contain any provision. But power was left to the Governor General, with the approval of the Secretary of State, to frame the rules which should guide the Council at its first meeting, and after the full and recent experience which he possessed no one could experience which he possessed no one could be more competent to discharge such a duty than the present Governor General. To the objection that the Council, as proposed to be constituted by the Bill, would prove more unmanageable than the present Council he could only reply that the Members of the existing Council held their seats ex-officio and were appointed by other authority than that of the Governor General; whereas the additional members of the proposed Council would be selected by the Governor General and would hold their seats for only two years. The noble Earl remarked that, although he could see no great danger from a selected Council, a party might be formed against the Governor General which would render him unable to pass laws which he brought forward. It was scarcely possible to imagine a case in which the selected Members, one half of whom were to be persons actually in the service, would combine to defeat a Bill brought forward by the Governor General; but, if such a case did occur, it would afford tolerably strong grounds for supposing that it was not altogether desirable that the measure should be passed. But the Governor Ge- 956 neral need not, and in his opinion, ought not, to appoint the whole of those twelve members at once. The Bill gave him power to nominate not less than six nor more than twelve, and the probability was that a limited number would be appointed in the first instance, and power would be reserved, in case it become desirable to legislate for a particular part of the country, to call in persons capable of giving valuable information of a local character. The noble Earl said that the Council would be too much open to the influence of public opinion at Calcutta, and too ready to make speeches appealing to public opinion in this country and in India. What was the remedy proposed by those who took objections to the measure supported by the Government? They proposed to establish, apart from the Governor General, contrary to immemorial custom, and unconnected with his authority, a great Council of State, which was to deliberate in public, to have its proceedings reported, and was then to submit its recommendations to the Governor General. But was not an independent Council such as that suggested by the noble Earl much more likely to overpower the Governor General, and to force their opinions upon him, than a Legislative Council of the character indicated by the Government? This Council of State, according to the noble Earl, was to be composed of a large number of persons in high position, and of great weight, representing, as far as possible, the various opinions and interests existing in India, and enjoying the super added importance of rank and standing. Were such a Council established one of two things would happen. Either it would have no real power, would be unable to influence the Governor General, and would find its opinions constantly disregarded—in which case men of weight and influence would decline to sit upon it, and as a deliberative body it would fall into desuetude and disgrace—or the much more probable result would ensue, that such a Council, being independent of the Governor General, having among its Members no representative of the Executive Government, and being invited to conduct its deliberations in public, would be enabled to submit its recommendations with such authority that, except in cases of great emergency, The Governor General would find it impossible to disregard their opinions. It was true that these Councillors were to have no votes; but public opinion would, under 957 a system of open debate, give them an amount of control which was more likely to create than to avoid evils. Indeed, by their having no votes their responsibility would be diminished. This Council was to be responsible to no one. It was to be appointed by the Governor General simply for consultative purposes, and its Members ought, from its very nature, to say whatever they thought upon every measure which was submitted to them, without the responsibility which must attach to any one who had to give a vote, and so influence toe decision at which the Government was to arrive. He, therefore, ventured, with the most sincere respect for the opinions of the noble Earl, and of those who were to some extent in favour of his Amendment, to submit to their Lordships that, instead of destroying the evils which existed under the present system, it would have a tendency to increase them; that, while the proposition of the Government was consistent with previous legislation and with the views of the Governor General, and of those who had had the most recent experience in India, this was an entirely untried system, which would launch them upon an unknown sea, where they would, he believed, meet with storms and perils much greater than any to which they would be exposed under either the existing system or that which it was proposed to establish by this Bill.
§ THE EARL OF ELLENBOROUGHsaid, that everything which his noble Friend (Earl Grey) proposed to do by a clause in this Bill the Governor General could now do, and he believed a great deal better, by his own authority. This was not an innovation, as the noble earl supposed. It was a restoration. It was the restoration of the Government of Akbar. It was the restoration of the system of Government which was known to all India, which existed in every Native State, which possessed the affections of the people, and than which he believed that no more popular measure could be introduced, because it would be so identified with the ancient customs of the people of India. He should have no apprehension whatever as to the action of a Council of State composed as his noble Friend proposed to compose it. It was they only mode by which it would be possible to introduce any large number of Natives into a Council in consultation with the Governor General; and in his opinion the introduction of Natives to a great extent into the consultative Council of the 958 Governor General was absolutely essential to the good government of the country and to its future tranquillity. Their Lordships really must consider the perilous condition in which, under any circumstances, we must stand in India. The circumstances of peril in which we had always stood had been infinitely increased by the late mutiny. There was now, he feared, between the Natives and the Europeans a feeling of hostility which might portend future disasters, and which it would require the greatest care and discretion on the part of the Government to allay. By adopting the course suggested by his noble Friend they would gratify the great body of the people, for whom we ought to endeavour to carry on our Government, and not altogether to rely upon the habits of the people of this country, but to look to the habits and feelings of those for whom we must govern. As regarded the plan of Her Majesty's Government, he would say this—that he had more than once in the course of his Parliamentary life had the misfortune—and it was a great one—to belong to a Government which did not command a majority in Parliament, and he was far from desirous to subject the Governor General of India to a similar misfortune. He felt perfectly convinced that, if the large number of additional Members permitted by the Bill were appointed, the Governor General would not have a reasonable expectation of carrying his measures in the Council. His noble Friend near him had assumed, and perhaps he was justified in assuming with regard to most subjects, that the Governor General would go into the Legislative Council sure of the votes of his own Executive Council and of the Lieutenant Governor of Bengal. Those votes amounted to six. The Commander-in-Chief would not be present, he was always with the army; and the Governor General had of late abstained form attending the meetings of the Council, and perhaps he was right in taking that course. One half of those who were to be appointed Councillors must be unofficial persons. Now, their Lordships could hardly be aware of the entire and absolute independence of the gentlemen of the Civil Service. They might depend upon it that they could not induce gentlemen of high character and station in the Civil Service to enter to Council if it was thoroughly understood that they were always to vote with the Government. There was no independent gentleman in India who would 959 take the appointment upon that condition. They would be compelled to resign their situations; and if the Governor General obtained successors to them they would be persons of an inferior description, whose opinions would carry no weight, and who would, in fact, bring discredit on the Council. There were questions upon which even the Members of the Governor General's Executive Council could not be depended upon; and he was sure that means would be adopted by this Parliament of bringing forward all questions in some manner or another. As he told their Lordships the other night, there was an intensity of feeling not only upon the two questions as to the manner in which the Natives were to be treated, and how the interests of Europeans were to be maintained, but also upon the subject of religion, which made it impossible to depend upon the vote in the Legislative Council of a member of the Executive Council, even though he was a man who was perfectly reasonable on all other subjects. That was our real danger. The danger in 1851 was produced by the conduct of the Legislative Council with respect to religious questions. Let them not incur the same danger with a Council yet more unmanageable. He entreated their Lordships to recollect that they were legislating for India, and not for England; they were legislating for a country in which Englishmen might be counted by units, and the Natives, of two different religions, antagonistic to ourselves, by millions. They might depend upon it that there was danger at every step which we took, and that our only chance of avoiding it was to endeavour to conciliate the people and to act in compliance with their feelings and prejudices.
THE DUKE OF ARGYLLsaid, he could hardly understand whether or not the speech of the noble Earl who had just sat down was intended to support the Amendment, for he had pointed out that what it was proposed to do by it could already be done by the Governor General by his own authority. He could not avoid asking his noble Friend who had moved the Amendment whether he expected to carry it, because, if it were carried, the greater portion of this measure must be entirely recast; and pointing out to him that he had not informed their Lordships how he proposed to deal with the Councils of Madras and Bombay, to the reconstruction of which a not unimportant part of this Bill was devoted. 960 He must protest against the statement of his noble Friend that it had been admitted on all hands that the Legislative Council had been a total the Legislative Council had been a total failure. On the contrary, it had been stated both by the Governor General and by the Lieutenant Governor of Bengal that as regarded carrying on its legislative business the Legislative Council established in 1853 had been eminently successful, and they pointed to the statutes passed since 1854 as a sufficient proof that in that respect it had worked satisfactorily. He agreed with his noble Friend opposite that it had been proved to be most inexpedient that the Judges should be Members of such a body, because they were sometimes tempted to express opinions which involved serious risk and inconvenience to the Government. Another evil in the present system was that Members of the Council to interfere with the executive acts of the Government. These were the two principal objections to the existing constitution of the Council, and both of these would be obviated by the present measure. As to publicity of discussion, his opinion was that the evils resulting from it had been much exaggerated, while there were instances where the publication of the discussions in the Council had been of eminent service. He could easily imagine that when the Government had been attacked by the local press it would be a great advantage to have the opportunity of defending their conduct in a public assembly, and there could be no doubt that the publication of the financial statements of the late Mr. Wilson and of Mr. Laing had had a salutary effect on the minds of the Native population, and especially of the European community. Lord Canning was of opinion that the present system of publicity would require to be modified in some degree if Native Members were admitted, as some of them might not be able to take part in viva voce discussion. It was provided that the proceedings of the Council should be checked by regulations framed by the Governor General, and it was also intended that the Government should have their own reports of the debates. The consequence of the Amendment of his noble Friend would be to legislative body, and to perpetuate the evils of the present system in an aggravated form. The Council would acquire enlarged powers and would be apt to gather within itself all the discontented elements which existed in 961 Indian society. His noble Friend opposite deemed the duty of passing a Bill inconsistent with that of objecting to one; but in his opinion anybody who possessed the one function ought to possess the other. An observation which he had made the other evening had been misunderstood. He did not mean to say that India was divided into two classes, one desirous of consulting the interests of the Natives and the other of promoting only their own commercial interests. A remark to that effect was made by a noble Friend opposite; and upon that he (Earl de Grey) said that the civil servants in India in the main represented that class among Europeans who were disposed most tenderly to consult the feelings of the Natives. Whoever knew anything of that body must acknowledge that to be the case. A circular which had recently been issued by the Landholders and Commercial Association of India showed the antagonism which prevailed between the planters and the Natives of Bengal. He had no doubt there were many planters who had as anxious a desire to respect the feelings of the Natives as their Lordships had, but there existed a contrary spirit among a great number of them, and the reason was plain—their interests were not identical. The English in India were not colonists. No Englishmen went to live and die in India, but every Englishman hoped to come back and spend the evening of his days here. Therefore, he (the Duke of Argyll) viewed with very fear the calling together of such an assembly as that pointed out by his noble Friend; and he was quite sure that whatever the danger of the Legislative Council, including in itself a small independent element, that danger would be very much exaggerated by the Amendment.
§ THE EARL OF ELLENBOROUGHwished to ask the noble Earl (Earl De Grey) what would happen if any one of the unofficial Members should commit an act of bankruptcy? In most Legislative assemblies there was a power of getting rid of such Members, but he did not see any such power here. Bankruptcy was not of unusual occurrence at Calcutta, and, as far as he could see, a Member might be bankrupt twice within two years and still be a Member of Council.
EARL DE GREY AND RIPONsaid, there was no provision in the Bill to provide for such a case as that alluded to, be- 962 cause it was supposed that the Governor General would take care to select such gentlemen as were not likely to be subject to such a contingency. The Government would, however, consider the point.
§ On Question, Amendment negatived;
§ Clause agreed to.
§ Clauses 11 to 22 agreed to.
§ Clause 23 (Governor General may make Ordinance having the Force of Law in Cases of urgent Necessity),
§ THE EARL OF ELLENBOROUGHsaid, this was a most important clause. When the Act, which they were now considering, was originally passed some years ago, he suggested that it was absolutely necessary that the Governor General in Council, as then established, should have the power, under certain circumstances, of making a law without its passing through the Legislative Council. That proposal was not then adopted. It was adopted in this Bill. It was now proposed that the Governor General should be enabled to make no ordinance should be enabled to make no ordinance which for a limited period of time should have the effect of law. This opened a question of the gravest constitutional importance. The law had been that, whatever executive powers might be granted to the Governor General, he should have to legislative powers without the concurrence of his Council. It was the Magna Charta of India. It had been adhered to throughout, and he thought very beneficially. He was unwilling to trust, except under peculiar circumstances of emergency, to any individual man whatsover—howerver much he might respect him, or whatever personal confidence he might place in him—the absolute power of making a law to bind a great empire, not only without the concurrence of his Council, but, perhaps, even without having consulted them. He did not consider it safe to give that power to any human being, nor did he believe it was generally necessary. If they gave the Governor General in Council the power to make an ordinance which would last for six months, until the pleasure of the Queen's Government was known, that would be quite sufficient to meet any misconduct of the legislative Council. But, looking to the great dangers which might threaten India, he would reserve to the Governor General, under an exceptional state of things, the power of making ordinances which should have legal authority without the concurrence of his Council; yet he would provide that the power should be exercised under the same circumstances as the present 963 power of the Governor General to overrule his Council. The Amendment which he should propose would be insert the words "in Council," and to add these words, "and the Governor General shall have the same power of overruling the Council at meetings held for the purpose of making such ordinances as he now has by law at meetings held for any other purpose." His object was not to deprive the Governor General, who was solely responsible for the good government of India, of the power of making ordinances under extraordinary circumstances which should have the force of law, but to compel him so to act after deliberation, and after having consulted those who by law were given to him as his councillors. He desired deliberation before action. He did not object to action under those emergent circumstances, but he did not think it was right for Parliament to in-trust to any man the power of making even an temporary law without taking full security that it should be done after due deliberation, and after consulting with his Council.
EARL DE GREY AND RIPONsaid, that as this power was of such an extraordinary character, and would only be exercised under circumstances of peculiar emergency, the Government had thought it most desirable, on the whole, that it should be confided to the Governor General alone, in order that he might be solely responsible for its exercise. It might happen, too, that at the time when it was necessary to exercise it the Governor General might be absent form his Council. He hoped, therefore, that the noble Earl would not insist upon his Amendment.
§ Amendment (by leave of the House) withdrawn.
§ Words inserted subjecting the exercise of the power to the restrictions contained in the previous clause.
§ Clause, as amended, agreed to.
§ Clause 24 agreed to.
§ Clause 25 (Laws made for the Non-Regulation Provinces declared valid),
§ THE EARL OF ELLENBOROUGHsaid, that this clause was intended to legalize certain acts done in the non-regulation Provinces as to the legality of which doubts had been expressed. The non-regulation Provinces were conquered countries, and it was the universal law that conquered countries, until they were regularly placed under the ordinary law of the country conquering them, remained under the direct authority of the Crown. These doubts were sud- 964 denly started in the Legislative Council by the Chief Justice, and it certainly was very extraordinary that, having acted as legal adviser to the Government for six or seven years, in his capacity of legislative Member of Council he had never informed the Government he served of the illegality they were committing.
§ Clause agreed to.
§ Clauses 26 to 49 agreed to.
§ Clause 50 (Provision for the Supply of the office of Governor General in certain Circumstances),
§ THE EARL OF ELLENBOROUGHsaid, that with respect to this clause, he quite concurred with the remarks made on the subject by a noble Lord who had occupied the position of President of the Board of Control (Lord Lyveden). From the earliest times of out connection with India, the rule had been that in the event of a sudden vacancy in the office of Governor General the senior Member of Council succeeded to all the powers exercised by the Governor General. Being necessarily a man of considerable experience he was accustomed to the manner in which business was conducted, he knew the policy of the Governor General, and no break would occur in the administration of affairs. It was now proposed to alter that rule, and to provide that the senior Governor of Madras or Bombay should succeed to the Government of India. It should be remembered that at one period of the year it took three or four weeks to get from Bombay to Calcutta, and thought the latter place could be reached in a shorter time from Madras, it was evident that a Governor of one of the Presidencies who went to Calcutta must find everything new to him; and he would be likely to remain in the position only a very short time; neither of them would know anything of the persons by whom the business was conducted at Calcutta or of the policy of the Government; and it was evident that a very inconvenient interregnum would occur. When he was in India he urged earnestly upon the Government that they should appoint a provisional successor to the office of Governor General, and by such a course the evils likely to arise under this clause might be prevented. He hoped the noble Earl and his colleagues would reconsider the provisions of this clause, and turn their attention afresh to this particular subject.
EARL DE GREY AND RIPONsaid, he was quite disposed to consider the views of so high an authority as the noble Earl 965 upon this subject, and promised that the clause should undergo the further consideration of the Government.
§ Clause agreed to.
§ Remaining clauses agreed to.
§ Report of Amendments to be received on Friday next. [No.199.]