HC Deb 06 June 1861 vol 163 cc633-47

rose again and said: I rise to move for leave to bring in a Bill of the greatest possible importance to our Indian Empire. It modifies to a great extent the Executive Government, and—what is of still greater importance—it alters the means and manner of legislation. I can assure the House that I never felt more responsibility than in venturing to submit to it a proposal of so important and grave a character. It is hardly necessary for me to mention that the power of legislating for 150,000,000 of people, and nearly 50,000,000 whose welfare it indirectly affects, is a matter of the gravest importance, and I am quite sure that to those who have ever studied India the inherent difficulties of the question will be no less apparent. We have to legislate for different races, with different languages, religions, manners, and customs, ranging from the bigoted Mahommedan, who considers that we have usurped his legitimate position as the ruler of India, to the timid Hindoo, who, though bowing to every conqueror, is bigotedly attached to his caste, his religion, his laws, and his customs, which have descended to him uninterruptedly for countless generations. But, added to that, we have English settlers in India differing in almost every respect from the Native population—active, energetic, enterprising, with all the pride of race and conquest, presuming on their superior powers, and looking down in many respects and I am afraid violating in others, the feelings and prejudices of the Native population; with whom, nevertheless, they must be subject to laws passed by the Legislative body in India. I have always thought that the gravest question in modern times is the relation between civilized and less civilized nations, or between civilized portions and less civilized portions of nations, when they came in contact. The difficulty is seen in America, in Africa, in New Zealand, but nowhere in the widely extended dominions of Her Majesty has it reached such a magnitude as iii India. And in this particular case the difficulty is aggravated by the circumstance that the English, who form a portion of those who are to be subjected to this legislation, are not a permanent body. They go there for a time. Officials, when their term of service has expired, and persons engaged in commercial or agricultural pursuits, when they have made a fortune, return to this country, and though the English element in India is permanent as belonging to a nation, it is most transitory when we come to consider the individuals who compose it. Such are the circumstances under which we are to legislate, and I regret to say that the recent mutiny has aggravated these difficulties. The unlimited confidence which a few years ago was felt by the European population in the Natives of India has given way to feelings of distrust. Formerly there was, at all events, no feeling of antagonism between the higher portion of official persons and the great mass of the population. The latter looked up to the Government as to a protector, and if any feeling of antagonism or jealousy existed it existed only between them and those members of the service or the English settlers who were brought into antagonistic contact with them. When I heard some time ago that the feeling of antagonism was extending itself lower among the Natives and higher among the officers I deeply regretted it, as the most alarming symptom of altered circumstances, which must obviously tend to increase the dangers of our position. I do not wish to dwell on this matter, but it would be folly to shut our eyes to the increasing difficulties of our position in India, and it 13 an additional reason why we should make the earliest endeavour to put all our institutions on the soundest possible foundations. It is notoriously difficult for any European to make himself intimately acquainted with either the feelings or opinions of the Native population, and I was struck the other day by a passage in a letter from one of the oldest Indian servants, Sir Mark Cubbon, whose death we have had recently to regret. He had been in the service for sixty years; he had administered the affairs of Mysore for nearly thirty years; he had been living in the most intimate intercourse with the Natives, possessing their love and confidence to an extent seldom obtained by an English officer, and yet he said "that he was astonished that he had never been able to acquire a sufficient acquaintance with the opinions and feelings of the Natives with whom he was in daily communication." Many of the greatest mistakes into which we have been led have arisen from the circumstance that we have been, not Unnaturally, perhaps, for arranging everything according to English ideas. In Bengal we converted the collectors of taxes into the permanent landowners of the country, and left the ryots to their mercy. In Madras, Sir Thomas Munro, from the most benevolent inotives, and to avoid the evils of the Bengal settlement, introduced the ryotwarry system. It is now asserted that a more impoverished population than that of Madras does not exist. When I was at the Board of Control it was said that the system of the North-Western provinces was perfect. In consequence of that opinion it was introduced into the newly-acquired province of Oude. We fancied that we were benefiting the population, and relieving them from the oppression of their chiefs, but in the rebellion the ryots of Oude took part against us and joined their chiefs in the rebellion. Subsequent to the rebellion the Indian Government, profiting by the circumstance, reverted to the old system in Oude, and happily with the greatest success; and re- cently at an interview between Lord Canning and the talookdars they expressed their gratification at the restoration of the former system, and the Governor General justly congratulated them on the fact that tranquillity prevailed in a district which had been so frequently the scene of violence and outrage, and that ill the most newly acquired of Her Majesty's Indian dominions confidence existed which was not surpassed in the oldest settlements. The House can hardly be aware of the extraordinary and inherent difficulties in devising a system applicable to the whole of India. It behoves us to be most careful, as a rash step may lead to most dangerous consequences. It is easy to go forward. It is difficult to go back, and I confess I am disposed to err on the side of caution and to profit by the warning of one of the ablest Indian officers, Mountstuart Elphinstone, who said "Legislation for India should, be well considered, gradual, and slow." The measure which I propose to introduce will effect some changes in the executive Government of India. About two years ago the Government thought it right to send to India a distinguished Member of this House, Mr. Wilson, in order to aid in putting the finances of that country in a more satisfactory condition. As far as I can learn, the changes which Mr. Wilson had the opportunity of inaugurating, and which have to a considerable extent been carried out, have gone a great way to convince the authorities of India of the mistaken way in which they were proceeding, and to lay the foundation of a sounder system of finance. Judging from the accounts which we have received by the last mail, I believe that a change has come over the financial affairs of India, and that we may look forward to a more satisfactory state of things than has prevailed for many years. There can be no doubt that the Council of the Governor General has suffered serious inconvenience from the absence of any Member thoroughly acquainted with the laws and principles of jurisprudence; and Lord Canning, in one of his despatches, points out how desirable it is that a gentleman of the legal profession, a jurist rather than a technical lawyer, should be added to the Council. I propose, therefore, to take powers to send out an additional member of Council. Although it is not so specified, it is intended that he should be a lawyer, and I must endeavour to find a man of high character and attainments, competent to assist the Governor General and his Council in fram- ing laws. The main change proposed is, however, in the mode in which laws and regulations are enacted. The history of legislative power in India is very short. In 1773 the Governor General in Council was empowered to mate regulations for the Government of India, and in 1793 those regulations were collected into a code by Lord Cornwallis. Similar regulations were applied in 1799 and 1801 to Madras and Bombay, and in 1803 they were extended to the North-West Provinces. The territory of Delhi, however, which was nominally under the sovereignty of the Great Mogul, was administered by officers of the Government of India, and with such good effect that in 1815, when Lord Hastings acquired certain provinces, he determined that they should be administered in the same way by Commissioners appointed by the Government. The same System has been applied to the Punjab, Scinde, Pegu, and the various acquisitions made in India since that date. The laws and regulations under which they are administered are framed either by the Governor General in Council or by the Lieutenant Governors or Commissioners, as the case may be, and approved by the Governor General. This difficult mode of passing ordinances for the two classes of provinces, constitutes the distinction between the regulation and the non-regulation provinces, the former being those subject to the old regulations, and the latter those which are administered in the somewhat irregular manner which, as I have stated, commenced in 1815. There is much difference of opinion as to the legality of the regulations adopted under the latter system, and Sir Barnes Peacock has declared that they are illegal unless passed by the Legislative Council. The Act of 1833 added to the Council of the Governor General a member whose presence was necessary for the passing of all legislative measures, and put the whole of the then territory of India under that body, at the Same time withdrawing from Madras and Bombay the power of making regulations. In that Way the whole legislative power and authority of India were centralized in the Governor General and Council, with this additional member. So matters stood in 1853, but great complaints had emanated from other parts of India of the centralization of power at Calcutta. The practice was then introduced of placing in the Governor General's Council members from different parts of India. The tenour of the evidence given before the Committee of 1852–3 was to point out that the Executive Council alone, even with the assistance of the legislative member, was incompetent to perform the increased duties which were created by the extension of territory. Mr. M'Leod, a distinguished member of the Civil Service of India, and who had acted at Calcutta as one the Law Commissioners, gave the following evidence before the Committee:— The Governor General with four Members of Council, however highly qualified those individuals may be, is not altogether a competent Legislature for the great empire which we have in India. It seems to me very desirable that, in the Legislative Government of India, there should be one or more persons having local knowledge and experience of the minor presidencies; that is entirely wanting in the Legislative Government as at present constituted. It appears to me that this is one considerable and manifest defect. The Governor General and Council have not sufficient leisure and previous knowledge to conduct, in addition to their executive and administrative Junctions, the whole duties of legislation for the Indian empire. It seems to me that it would be advisable to enlarge the Legislative Council and have representatives of the minor presidencies in it, without enlarging the Executive Council, or in any way altering its present constitution. Mr. Hill, another eminent civil servant, said— The mode of carrying out improvements must be by strengthening the hands of the Legislature. It would be a great improvement if, after the preparation of laws by the Executive Government and its officers, when the Legislature met, they had the addition to their number of the Chief Justice and perhaps another judge of the Supreme Court, one or two judges of the Sudder Court, and the Advocate General, or some other competent persons—so that there should be a more numerous deliberative body. I quote these two opinions only, because they are so clearly and concisely expressed. In consequence of the general evidence to that effect, I proposed, in 1853, a measure adding to the Council of the Governor General, when sitting to make laws and regulations, members from the different provinces of India, together with the Chief Justice and another Judge of the Supreme Court of Bengal. My intention was, in accordance with the opinions I have cited, to give to the Council the assistance of local knowledge and legal experience in framing laws; The Council, however, quite contrary-to my intention, has become a sort of debating society, or petty parliament. My own view of its duties is expressed in a letter I wrote to Lord Dalhousie in 1853, in which I said— I expect the non-official members of your enlarged Legislative Council to be constantly employed as a Committee pf Council in working at Calcutta, on the revision of your laws and regulations. It was certainly a great mistake that a body of twelve members should have been established with all the forms and functions of a parliament. They have standing orders nearly as numerous as we have; and their effect has been, as Lord Canning stated in one of his despatches, to impede business, cause delay, and to induce a Council, which ought to be regarded as a body for doing practical work, to assume the debating functions of a parliament. In a letter which is among the papers upon the Table of the House, Mr. Grant tears testimony to the success which has attended their labours in framing laws; and I will quote the words of another able Indian civil servant to the same effect. He says— If it be assumed that the enlargement of the Council by the addition of two judges of the Supreme Court and four councillors of the different Presidences of India was designed only as a means of improving the legislation of the country, the measure must be regarded as a complete success. The Council has effected all that could be expected, and may with just pride point to the statutes of the last seven years as a triumphant proof that the intention of Parliament has been fulfilled. I think that is a very satisfactory proof that as far as my intentions—and what I believe were the intentions of the Legislature of this country—are concerned, the objects of the change in the position of the Governor General's Council, when sitting for legislative purposes, have been most completely fulfilled. I do not wish to say anything against a body the constitution of which I am about to alter, but I think that the general opinion, both in India and England, condemned the action of the Council when it attempted to discharge functions other than those which I have mentioned—when it constituted itself a body for the redress of grievances, and engaged in discussions which led to no practical result. So much has this struck those most competent to form an opinion, that I find that the first Vice President, Sir Laurence Peel, expressed a very decided opinion against it, and says of the Council, in a short memorandum— It has no jurisdiction in the nature of that of a grand inquest of the nation. Its functions are purely legislative, and are limited even in that respect. It is not an Anglo-Indian House of Commons for the redress of grievances, to refuse supplies, and so forth. These obvious objections were pointed out to me by the Government of India last year, and it way my intention, to have in- troduced a measure upon the subject in the course of that Session. I felt, however, so much difficulty in deciding in what shape the measure should be framed, that I deferred its proposal until the present year; and Lord Canning, who was very anxious that such a measure should be passed, consented to defer his departure from India in order that he, with his great experience of that country, might introduce the change. The present constitution of the Council for legislative purposes having failed, we have naturally to consider what should be substituted, and in doing so we must advert to the two extreme notions with regard to legislation which prevail in India. The notion of legislation which is entertained by a Native is that of a chief or sovereign, who makes what laws he pleases. He has little or no idea of any distinction between the executive and legislative functions of Government, A Native chief will assemble his nobles around him in the Durbar, where they freely and frankly express their opinions; but having informed himself by their communications, he determines by his own will what shall be done. Among the various proposals which have been made for the government of India is one that the power of legislation should test entirely on the Executive, but that there should be a consultative body; that is, that the Governor General should assemble, from time to time, a considerable number of persons, whose opinions he should hear, but by whose opinions he should not be bound; and that he should himself consider and decide what measures should be adopted. In the last Session of Parliament Lord Ellenborough developed a scheme approaching this in character in the House of Lords; but hon. Gentlemen will see, in the despatches which have been laid upon the Table, that both Lord Canning considers this impossible, and all the Members of his Government, as well as the Members of the Indian Council, concur in the opinion that, in the present state of feeling in India, it is quite impossible to revert to a state of things in which the Executive Government alone legislated for the country. The opposite extreme is the desire which is natural to Englishmen wherever they be—that they should have a representative body to make the laws by by which they are to be governed. I am sure, however, that everyone who considers the condition of Indian will see that it is utterly impossible to constitute such a body in that country. You cannot possibly assemble at any one place in India persons who shall be the real representatives of the various classes of the Native population of that empire. It is quite true that when you diminish the area over which legislation is to extend you diminish the difficulty of such a plan. In Ceylon, which is not more extensive than a large collectorate in India, you have a legislative body consisting partly of Englishmen and partly of Natives, and I do not know that that Government has worked unsuccessfully; but with the extended area with which we have to deal in India, it would be physically impossible to constitute such a body. The Natives who are resident in the towns no more represent the resident Native population than a highly educated native of London, at the present day, represents a highland chieftain or a feudal baron of half a dozen centuries ago. To talk of a Native representation is, therefore, to talk of that which is simply and utterly impossible. Then comes the question to what extent we can have a representation of the English settlers in India, No doubt, it would not be difficult to obtain a representation of their interests; but I must say that of all governing or legislative bodies, none is so dangerous or so mischievous as one winch represents a dominant race ruling over an extended Native population. All experience teaches us that where a dominant race rules another, the mildest form of government is a despotism. It was so in the case of the democratic republics of Greece, and the more aristocratic or autocratic sway of Home; and it has been so, I believe, at all times and among all nations in every part of the world. The other day I found in Mr. Mill's book upon Representative Government, a passage which I will read—not because I go its entire length, but because it expresses in strong terms what I believe is in the main correct. Mr. Mill says— Now, if there be fact to which all experience testifies, it is that when a country holds another in subjection, the individuals of the ruling people who resort to the foreign country to make their fortunes are, of all others, those who most need to be held under powerful restraint. They are always one of the chief difficulties of the Government, Armed with the prestige and filled with the scornful overbearingness of the conquering nation, they have the feelings inspired by absolute power without its sense of responsibility. I cannot, therefore, consent to create a powerful body of such a character. It must be remembered, also, that the Natives do not distinguish very clearly between the acts of the Government itself and the acts of those who apparently constitute it, namely, the members of the Legislative Council; and in one of Lord Canning's despatches he points out the mischiefs which have on that account arisen from publicity. He says that, so far as the English settlers are concerned, publicity is advantageous; but that if publicity is to continue, care must be taken to prevent the Natives confounding the measures which are adopted with injudicious speeches which may be made in the Legislative Council. I feel it, therefore, necessary to strengthen the hands of the Government, so as to enable them not only by veto to prevent the passing of a law, but to prevent the introduction of any Bill which they think calculated to excite the minds of the Native population, repeating the caution which I have before given, I say it behoves us to be cautious and careful in our legislation. I have seen a measure which I myself introduced in 1853, with one view, changed by the mode in which it was carried into execution so as to give it an operation totally different from that which I intended. The mischiefs resulting from that change have been great; and I am, therefore, anxious that in any measure which I may propose, and which the House, I hope, will adopt, we should take care, as far as possible, to avoid the likelihood of misconstruction or misapplication by the Government of India. It is easy at any future time to go further, but it is difficult to draw back from what we have once agreed to. The despatches of Lord Canning contain pretty full details of the scheme which he would recommend. Those despatches have been long under the consideration of the Council of India, and with their concurrence I have framed a measure which embodies the leading suggestions of Lord Canning. I propose that when the Governor General's Council meets for the purpose of making laws and regulations, the Governor General should summon, in addition to the ordinary members of the Council, not less than six nor more than twelve additional members, of whom one-half at least shall not hold office under Government. These additional members may be either Europeans, persons of European extraction, or Natives. Lord Canning strongly recommends that the Council should hold its meetings in different parts of India, for the purpose of obtaining at times the assistance of those Native chiefs and noblemen whose attendance at Calcutta would be impossible, or irksome to themselves. I do not propose that the judges ex-officio shall have seats in the Legislature; but I do not preclude the Governor General from summoning one of their number if he chooses. They were useful members of a body meeting as a committee for the purpose of discussing and framing laws, but I think it is inexpedient and incompatible with their functions that they should belong to a body partaking in any degree of a popular character. I propose that the persons nominated should attend all meetings held within a year. If you compel their attendance for a longer period you render it very unlikely that any Natives except those resident upon the spot will attend the meetings of the Council. This also is recommended by Lord Canning. Hon. Gentlemen will have noticed the great success which has attended the association with us of the Talookdars of Oude and of the Sirdars in the Punjab in the duties of administering the revenue, and Lord Canning has borne testimony to the admirable manner in which they have performed their duties. I believe greater advantages will result from admitting the Native chiefs to co-operate with us for legislative purposes; they will no longer feel, as they have hitherto done, that they are excluded from the management of affairs in their own country, and nothing, I am persuaded, will tend more to conciliate to our rule the minds of Natives of high rank. I have no intention of doing anything to make this Council a debating society. I wish, to quote an expression of Sir Laurence Peel, to render them a body for making laws. The Council of the Governor General, with these additional members, will have power to pass laws and regulations affecting the whole of India, and will have a supreme and concurrent power with the minor legislative bodies which I propose to establish in the Presidencies and in other parts of India. I come now to the power of making laws which I propose to give the Governors and Councils of the other Presidencies. Lord Canning strongly feels that although great benefits have resulted from the introduction of members into his Council who possess a knowledge of localities—the interests of which differ widely in different parts of the country—the change has not been sufficient, in the first place, to overcome the feeling which the other Presidencies entertain against being overridden, as they call it, by the Bengal Council; or, on the other hand, to overcome the disadvantages of having a body legislating for these Presidencies without acquaintance with local wants and necessities. This must obviously be possessed to a much greater extent by those residing on and nearer the spot. And, therefore, I propose to restore, I may say, to the Presidencies of Madras and Bombay the power of passing laws and enactments on local subjects within their own territories, and that the Governor of the Presidency, in the same manner as the Governor General, when his Council meets to make laws, shall summon a certain number of additional members, to be as before either European or Native, and one-half of whom at least shall not be office-holders. It is obviously necessary that these bodies should not be empowered to legislate on subjects which I may call of Indian rather than of local importance. The Indian debt, the Customs of the country, the army of India, and other matters, into the details of which it is not necessary that I should enter, belong to a class of subjects which the local Legislatures will be prohibited from entering upon without the sanction of the Governor General. I propose that Councils rather differently constituted should be established at Bengal; and, if the Governor General thinks right, as he obviously does from his despatches, that he shall be empowered hereafter—but not without the sanction of the Secretary of State—to create a Council for the North West provinces, or the Punjab, or any other part of India which he may think desirable. It has been represented that the province of Pegu might, perhaps, be constituted into a separate Government, with a Council. I somewhat doubt whether it is at present ripe for such a change; but when it has acquired sufficient importance, no doubt the district will be better administered in that way than it is at present. By this means, while we shall attain a general uniformity of legislation, with a sufficient diversity for the differences of each part of India, we shall, I hope, adapt the system to the wants of particular localities. It is quite clear that the public works may be better dealt with by local bodies than by a central authority; but as each district might be disposed to repudiate liability to maintain its share of the army, on the ground that it would not be first exposed to danger, and as it is highly desirable that the distribution of troops should be in the hands of the central authority, I think that the army, among others, is a subject which should be left to the general Council. The Bill also gives power to the Governor General in cases of emergency to pass an ordinance having the force of law for a limited period. Questions might arise about the Arms Act, or the press, as to which it would be very injudicious that delay should occur; and we, therefore, propose to empower the Governor General on his own authority to pass an ordinance having the force of law, to continue for a period of six months, unless disallowed by the Secretary of State or superseded by an Act of the Legislature. I believe I have now gone through the main provisions of the Bill. They have been carefully considered by the members of the Indian Council, men drawn from every part of India, of every profession, and with the most varied experience. The measure has been prepared with their entire concurrence, and it has the approval of most of the persons with whom I have conversed on the subject. All I can say is that every precaution has been taken in the framing of the Bill to make it effectual for the accomplishment of the object which it is designed to achieve. Every one has been consulted whose opinion I thought ought to be taken. It has been carefully considered by the Government in India and the Government at home. I venture, therefore, to submit it to the House in the hope that, with such Amendments as may be made in it in its progress through Parliament, it may tend to the happiness of India and the prosperity of the Queen's subjects in that portion of Her Majesty's dominions. The right hon. Baronet concluded by moving for leave to bring in a Bill to amend, in certain respects, the constitution of the Council of the Governor General of India, and to authorize making laws and regulations for the Presidencies of Fort St. George and Bombay, and for other parts of Her Majesty's Indian territories.


wished to express his hope that the right hon. Baronet would not press too quickly on the House the consideration of this matter. The despatches of Lord Canning were placed in the hands of Members only that morning, and he for one had not had time to read them. He approved entirely the principles of this Bill. It contained two principles which, in his opinion, promised to be eminently successful—one for the greater localization of the Government of India, and the other for the introduction of independent Members of the Council. Whether it would be possible to accomplish by the machinery of the Bill all that the measure proposed was matter for discussion, and he thought that time ought to be given to hon. Members to consider the provisions of the Bill, and to propose such Amendments as they might think it desirable to submit to the House,


said, it was difficult to give a uniform legislation for a country composed of twenty-one different nations, speaking different languages, and having different habits and prejudices, but he did not think that that difficulty should prevent them from making any attempt to legislate at all. The local councils would bring legislation within a narrower sphere, and adopt it to the peculiar wants of the peoples under the respective presidencies; indeed, the Bill would only restore the power to the local councils possessed before the establishment of the Legislative Council of India, the difference being that formerly they could only pass rules and regulations; whereas for the future they would be enabled to pass laws. He hoped the legislation would be such as to insure a return on the part of the people to that attachment to this country which existed before the rebellion. He was not now about to enter into a discussion of the details of the measure; but would merely express a hope that ample time would be given to the House to consider with attention its various provisions.


thought that the legislation proposed by Lord Canning, and sought to be carried into effect by this Bill, combined the logical and central managements in a manner that deserved the praise of the House. It was quite true that the time must not be very remote when it would be possible to put in practice any scheme for the representative system in India; but we must adopt means to prepare the Natives for local self-government. He thought that the localization of India would be productive of great benefit. As far as he could understand the proposition from the Correspondence of Lord Canning, it had his approval, and he trusted that his right hon. Friend would succeed in bringing it to a successful conclusion.


said, there were two interests which especially required representation, the trade and the agriculture of India, and he believed that that would be best attained by this combination of local with central government. Lord Canning had very skilfully laid down the distinction between the two; and he gave his cordial support to the Bill, which carried out the views of the noble Lord. He believed, however, that the credit of originating the plan was due to the hon. Member for Birmingham (Mr. Bright), who had suggested it many years ago.


hoped the right hon. Baronet the Secretary for India would turn his attention to the question of improving the laws in that country, especially in respect to the making and enforcing of contracts.

Leave given.

Bill to make better provision for the constitution of the Council of the Governor General of India, and for the Local Government of the several Presidencies and Provinces of India, and for the temporary Government of India in the event of a vacancy in the office of Governor General, ordered to brought in by Sir CHARLES WOOD, Viscount PALMERSTON, and Lord JOHN RUSSELL.

Bill presented, and read 1°, to be read 2° on Thursday next, and to be printed. [Bill 162.]