Lords Sitting of 9 July 1861

MINUTES.
PUBLIC BILLS.—2a Poor Assessments (Scotland); East India Council, &c.; Courts of Justice Building; Inclosure (No.2); Local Government Supplemental; Transfer of Stocks and Annuities.
3a Landed Property Improvement, &c. (Ireland)

POOR ASSESSMENTS (SCOTLAND) BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE EARL OF AIRLIE, in moving the second reading of the Bill, said, that its object was to simplify the mode of raising the assessment for the relief of the poor in Scotland. It was proposed to abolish the assessment upon "means and substance" in those parishes where it was now in force, and to substitute on assessment upon rental according to the classifications proposed in the 8 & 9 Vict., the Poor Relief (Scotland) Act—the election of classification to be determined by the parochial boards, subject to the approval of the Board of Supervision. He believed that the assessment on "means and substance" was universally condemned. It was levied under an ancient statute which provided no means of ascertaining the income of the persons to be assessed, and no penalty for false returns. The consequence was that the assessment was raised very much at hap-hazard, and while rich manufacturers could make what terms they chose, the burden of the rate fell on persons of limited incomes. It also gave rise to a great deal of gossip about people's private means, which was at times not only an annoyance, but an injury. Some of the parochial boards were in favour of the existing system; but he denied that they represented the ratepayers. There were between 8,000 and 9,000 signatures to the petitions in favour of the Bill presented to the other House, and only 486 to petitions against it. The mode of assessment proposed in the Bill was already in operation in many parts of Scotland, and wherever it had been tried it had been found to work satisfactorily.
  Moved, That the Bill be now read 2a.
  THE EARL OF CAMPERDOWNsaid, the Bill affected the assessment of the poor-rate in every parish in Scotland, and proposed to levy the tax in many cases in a manner different from that in which it had

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  hitherto been levied. He had the greatest possible respect for the abilities of his noble Friend who had introduced the Bill into this House, and for the hon. Member for Montrose (Mr. Baxter), who had introduced it into the other House of Parliament; but he thought legislation on a subject of such magnitude should have been at the instance of the Government, as was invariably the case when Bills were brought in which affected the working of the Poor Law in England or Ireland, and not by a private Member of either House. Again, no important change had hitherto been made in the Poor Law of England and Ireland without its having been preceded by careful inquiry, and previous to the great alteration in the Poor Law of Scotland in 1845 the Government of the day appointed a Commission, and after they had taken evidence in every part of the country the Bill which was afterwards passed was introduced, embodying the recommendations made by those gentlemen in their Report. In the present instance, however, no such inquiry had been instituted or asked for. The present mode of assessment in Scotland had been adopted after mature deliberation. Some sixteen or seventeen parishes had not given up the old system of assessment by "means and substance;" but this Bill would make it compulsory on the majority of a parish to give up that principle, although they might be sincerely attached to it. The Bill did not apply any remedy to the defective constitution of the parochial boards, or contain any provision for the more economical collection of the rates. The Bill stood in this unfortunate position in their Lordship's House, that being a money Bill it was impossible to amend it, and he therefore hoped that, on their Lordships refusing to assent to it in its present crude state, the Government would determine to institute proper inquiry into the whole working of the Poor Law in Scotland, which was indeed absolutely necessary after the statements that had been made regarding it by a high authority, before the Irish Poor Law Commissioners. If there was one subject more than another which required the attention of the Government to be directed to it, it was this one of rates, and at all events they ought to pause before dealing with a portion of it by a small Bill containing only a single clause.
  THE EARL OF EGLINTONconcurred with the noble Earl opposite that the Bill
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  did not go far enough; but it was no reason because the Bill did not hit every blot in the system that the blot it did hit should not be removed. The noble Earl disapproved of assessing by "means and substance," and thought that there ought to be some inquiry. Inquiry would, however, in his opinion, only prove that "means and substance" ought to be abolished. The boards were, for the most part, not composed of persons of great intelligence, and favouritism and injustice prevailed to a great extent. He knew of one parish where the inhabitants of villa residences and other persons in easy circumstances were not assessed at all, while the artizans were assessed on their hard earnings. At Ayr there was the greatest injustice done. There could be no doubt that the system of assessment on rental had worked extremely well, and although the Bill proposed to leave the classification optional, and, therefore, in his opinion did not go far enough, for he thought there should be one uniform system established all over Scotland—he should give it his support.
  THE DUKE OF ARGYLLsaid, he had no personal connection with any parish in which that most unfortunate, and as he deemed it, most unjust assessment, by "means and substance" prevailed; but he strongly objected to it on principle. It was, in fact, an income tax without any machinery for ascertaining the amount of any one's income. The late Lord Campbell having purchased some property in the south of Scotland, had actually had a demand made upon him for a rate, founded not merely upon his property in the parish, but his property in the funds, and even upon his salary as Lord Chief Justice of England. His learned Friend, however resisted the charge with his usual perseverance, and in the end was successful. It was true that the Bill was not a Government measure, but it had received the sanction of the Board of Supervision, the present and the late Lord Advocate, and he believed every Scottish Member of the other House. The consequence of the present system was that those who possessed the smallest amount of property had the great majority, while those who paid the largest sums were in a minority in the parish. He could not admit that because the Bill was limited to one point it should not receive the sanction of their Lordships—no doubt the Scotch law required amendment in some other particulars. At all events this was

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  an admitted evil, and he had not heard anyone advocate the system of assessment on means and substance, which was in point of fact an assessment on income not derived from the parish. If his noble Friend (the Earl of Airlie) divided the House, he should give him his vote. There were, he understood, some objections to the Bill on points of detail, but he should certainly, on the second reading, support this measure.
  THE EARL OF DALHOUSIEagreed that this mode of rating on means and substance was to a certain extent very objectionable. But the object of the Bill was to give a minority the power or over-riding the decision of a majority in the parish, and that, he thought, was a strange principle to be adopted by their Lordships. The fact was that the mode of assessment now objected to was dying out, and he thought that the parishes in which this system prevailed might be allowed to give it up at their option, as other parishes had done. By the present law there were three modes of assessment which could be adopted by any parish, subject to the Board of Supervision in Edinburgh; but according to this Bill that Board would have not only the power of disallowing the arrangement made in the locality, but the power of taxing the locality in the mode it thought proper, which he thought was a power that ought not to be given to a Board of that description. He confessed that he should be glad to see the Bill postponed, and made a part of some general measure on this subject.
  LORD REDESDALEsaid, a similar principle to that contained in the "means and substance" mode of assessment prevailed in England with regard to the assessment on stock in trade. True that was not carried out in practice; but the principle subsisted and was suspended only by Bills passed periodically for that purpose. And, in like manner, he would suggest that the system should not be given up absolutely in Scotland.
  LORD KINNAIRDdenied that the Bill proposed to give to the minority the right of over-riding the majority. On the contrary, it would carry out the wishes of the large majority of those who were the real ratepayers. Year after year there had been repeated attempts to get rid of this mode of assessment, and he trusted, therefore, that their Lordships would agree to the second reading of this Bill.
  Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

EAST INDIA COUNCIL. &c., BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  EARL DE GREY AND RIPONsaid, this Bill was one of great importance, for it proposed to make certain alterations in the constitution of the Council of the Governor General when acting in an executive capacity, and also to remodel and greatly to modify the constitution and organization of the Council when assembled for the purpose of framing laws and regulations. The character of our Indian dependencies, if examined, would convince the House of the importance of this measure. He need not remind their Lordships of the extent of the territory of India, the vast population by which it was inhabited, and the various races, religions, and interests that necessarily existed among them. It was sufficient to advert to these circumstances to show that this measure was both necessary and one of great importance. The Government had given the subject its full and complete consideration before submitting the Bill to Parliament, and in dealing with the question it had endeavoured to limit the changes as much as possible, and make only those that experience showed to be absolutely necessary. With regard to the Executive Council, the principal changes were two in number, and the experience of late years had shown that they were required. Under the existing system, by the Act of 1853, the Home Government had the power of appointing, in addition to the three ordinary Members of the Council of the Governor General, drawn from the Civil Service, a fourth ordinary Member, who stood in place of the Legal Member appointed under the Act of 1833. Circumstances occurred which made it a matter of paramount necessity to appoint a Financial Member of the Council, and the Government availed itself of the power they had of appointing such person instead of a Legal Member. It was probable that the presence of a Financial Member would continue to be necessary; but in the despatches which had been laid on the Table, form Lord Canning, he expressed his opinion that it would be desirable that, besides the Financial Member, they should also have the power of sending out another

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  Member of Council from this country, who should be the Legal Member of the Council. One of the changes, therefore, proposed by the Bill was that the Government took power to appoint another Member of the Council, who should belong to the legal profession, in addition to the Member appointed for his practical knowledge of finance. The Governor General had also expressed a desire to have a legal power of carrying into effect a system of division of labour between the Members of the Council. Looking at the vast interests that were under the administration of the Council, and the great increase of business in the last fifteen or twenty years, it was desirable to give each Member of that body a distinct and defined responsibility with repect to the part of the administration under him. The Bill, therefore, gave the Governor General to power of distributing among the Members of the Council particular departments of administration, and giving to the orders of these Members the same authority in respect to their own departments that now attached to acts done by the whole Council. These were the principal changes proposed with regard to the Council as an executive body; they were intended to meet the increased demands upon it, and he trusted they would enable it more fully to discharge its duties. But the more important part of the Bill was that affecting the future constitution of the Council as a legislative body. Before 1833, certain powers of legislation were possessed by the local Governments of Madras and Bombay, as well as by the general Government at Calcutta; but in 1833, a system of centralization was established, by which the powers of the local Government were transferred to the Governor General and his Council. This system continued till 1853, when it was thought, in consequence of the evidence given before the Committees of both Houses that sat previous to the Act of 1853, showing the necessity of strengthening and increasing the Legislative Council, that there should be Members in it representing different parts of the vast territory of India; and it was also considered advisable to increase its qualifications for the preparation and passing of laws by adding two Legal Member. Accordingly, by the Act of 1853, there were added to the Legislative Council one Member from Madras, one from Bengal, one from Bombay, and one from the North-West Provinces, and also the Chief Justice and one Puisne Judge of
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  Calcutta. These Members were only added to the Council which previously existed. They were not a separate Legislative Council. A reference to the debates in Parliament at the time, and to the Act itself, would show that there was no intention to make this Council a little Parliament, with all the powers of a British Parliament, and assuming the rights that naturally belonged to a Parliament. But when the Act was about to come into operation, Lord Dalhousie prepared a set of Standing Orders, no less than 136 in number, framed on the model of the Standing Orders of this and the other House of Parliament, and laid them before the new Legislative Council, which adopted them. These Orders, unquestionably, as far as forms went, gave very much the appearance of a Parliament to the Council. He was inclined to speak with great respect of the administration of so great a statesman as Lord Dalhousie's, but at the same time it did appear to him that this step of his was very unwise and inconvenient. The Legislative Council of India was not a Parliament; it was, therefore not desirable to give it a set of forms and orders that encouraged the Members to assume to themselves the rights of a representative body. The despatches which had been laid on the Table would show that the Governor General was of opinion that the present system was most mischievous, and the various discussions which had taken place in this and the other House of Parliament showed that that opinion was shared by those who were best able to form a judgment on the subject. These defects were not from the Act of 1853, but from the rules and standing orders which were subsequently adopted. From that time, on various occassions, the Legislative Council has assumed to itself, to a certain extent, the right of a Parliament. Instead of dealing merely with the measure submitted to them, individual Members of the Council brought forward motions which had no reference to the measures then before them. Lord Canning, also, in his despatches, called attention to another circumstance—that if it was desirable to have a local representation of various parts of India, the present system was inadequate for that purpose. There existed, not unnaturally, a degree of jealousy whenever local interests were not sufficiently considered in the only body capable of passing laws affecting those interests. Upon that point Lord Canning

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  said, in his despatch of the 9th of December, 1859—
  "There is no doubt that the introduction of a single Member from each local Government has been, as the Lieutenant Governor of Bengal observes, a great advantage; but, although an improvement has thus been made in the system antecedent to 1854, I do not think that it has been carried far enough. I do not think that, the principle of representing the local Governments in the Council being once admitted, the Governments of Madras and Bombay can be reasonably expected to be satisfied with the share which they at present have in any legislation directly concerning their own presidencies; and I believe that by giving them a much larger share in it, useful local measures may be facilitated and expedited, without leading to any interference with measures of a general character, or with the authority and responsibilities of the Governor General in Council."
  There was another circumstances upon which he must touch in passing. Among the Members of the present Council were two of the Judges of the Supreme Court of Calcutta. Admitting, as he fully did, the valuable services rendered by those gentlemen in the legal and technical business of the Council, especially by Sir Barnes Peacock, it was for obvious reasons desirable that the precedent of this country should be followed, and that Judges sitting on the bench should not be admitted into the Legislative Council. Those defects having been proved to exist Her Majesty's Government had to determine what course they could take to render the Legislative Council capable of discharging more adequately and safely the duties entrusted to it. In approaching the subject they were met by two opposite opinions. On the one hand, there were many persons, and among them those of great authority, who urged that the Legislative Council should be altogether abolished, and that a return should be made to the old system of 1833, placing the power of legislation exclusively in the hands of the Governor General and his ordinary Council. There were, no doubt, arguments which could be used in favour of that course; but it must be borne in mind that they were not now constructing for the first time a Legislative Council for India, and they must, therefore, look at the previous legislation upon this subject. When the Government looked at the existing state of things, and considered the authorities against the abolition of the Legislative Council, they did not feel that it would be desirable or expedient to resort that extreme measure. Upon that point the present Governor General of India
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  must be regarded as a high authority, especially from his experience of the great events of late years. In his despatches Lord Canning never for a moment contemplated the possibility of abolishing the Legislative Council and reverting to the old system, for after stating general grounds against such a step he stated one reason which appeared to be a sufficient answer to the arguments of those who would throw the burden of legislation upon the Executive Council of the Governor General. That reason was that in the present day the Executive Council could not undertake those duties of legislation in addition to those which now devolved upom them. In his despatch of December 9, Lord Canning said—
  "Although I am not able to give any help towards a comparison of the two plans, having had no experience of the earlier one, which from 1854 has ceased to be in operation, I entirely agree in the opinion of the Lieutenant Governor that it would be Impossible to revert to it. To do so would be to throw back upon the Governor General in Council duties which are increasing in importance and weight, and which will continue so to increase; and the Governor General in Council must not, in fairness or in sound policy, be required to take upon him any addition to the burden which he already bears."
  Thus, the Governor General was of opinion that if those duties were thrown upon the Executive Council the consequence would be either hasty and ill-considered legislation, or that the ordinary administrative duties of the Council would be neglected. In a country like India neither contingency could be risked. There was another opinion upon the subject which could not be entirely overlooked, and which was advocated by many persons in India and by some in this country, but from which he entirely dissented—he meant the opinion of those who thought there should be in India something resembling a Representative Assembly. Those persons, however, who advocated this system, did not intend to give representation to the Natives of India; but, if not, how could they call that a representative system in which in reality the principle of uniting taxation and representation about which they were so fond of talking was disregarded? But what was asked for was something like a representative system for the European inhabitants of India, for the purpose of governing the Natives of India. Against any such a scheme Her Majesty's Government most strongly protested. Such a system would be most

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  injurious to the interests of the Natives, by exposing them to the caprice and selfishness of a class which was wholly irresponsible to the Native community, and they felt that the result of such a system of Government must be ultimately the destruction of our power in India. Now, if it were true that a feeling prevailed in the minds of the European community in India that in the legislation of that country their interests were not sufficiently considered it was not unnatural that complaints should be made. But if legislation were again to be handed over to the Executive Council there would arise in the minds of the European community an apprehension that they would be liable to hasty and ill-considered legislation, and that was a risk which should induce the Legislature of this country to pause before it abandoned the course upon which it had of late years proceeded. Another suggestion that had been made, and which had the high authority of the noble Earl opposite (the Earl of Ellenborough) in its favour, was that the Members of the Council should have only a consultative voice in respect to matters of legislation—that they should be consulted by the Governor General—should give their opinion, but should not vote upon any matter that might be brought before them. It was with great diffidence that he opposed anything which fell from the noble Earl; but it was evident from the despatches of Lord Canning that that noble Lord contemplated nothing of that kind, and that what he thought necessary was that these additional Members of his council should have full legislative functions, and that to make their functions merely consultative must greatly weaken their responsibility. Her Majesty's Government had, therefore, endeavoured to steer their course midway between these opposing opinions; and while they had thought it right to include in this Bill provisions for strengthening the Council of the Governor General and for securing the presence in it of additional Members for legislative purposes, they had on the other hand sought to remove those defects which experience had shown to exist under the present system. With that view they proposed, with reference to his Council in its legislative capacity, that the Governor General should be empowered to call in the aid of not more than twelve and not less than six Members for the discharge of legislative duties, one-half of that number to consist of persons holding
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  no civil or military employment under the Government. They left the selection entirely to the Governor General, only providing that the persons nominated shall belong in the proportion he had stated to the non-official classes. Thus the non-official classes of India, Native and European, would have persons drawn from their body acting as members—for it should be observed that, under this provision of the Bill, Natives of the country would be eligible for seats in the new Legislative Council. But having thus strengthened the Council they took measures to prevent its assuming again the functions of a little Parliament, to which he believed their Lordships objected as much as the Government did. The 18th Clause provided that the Council, when assembled for legislative purposes, should take under its consideration only the measures submitted to it in the shape of Bills, with the view of their becoming laws. They would be restricted from making any motions ex-except with reference to the measures so brought before them, and also be precluded from introducing any Bills upon certain important political topics without the previous sanction of the Governor General. It would be left to the Governor General to draw up a code of rules and regulations for the proceedings of the Council, to be submitted to the Secretary of State in this country. These regulations would determine the extent to which publicity should be given to the proceedings of the Council, and settle other details connected with the mode of conducting business. There was one power of an entirely novel and very important character which the Bill conferred on the Governor General. It empowered the Governor General in cases of emergency to pass ordinances upon his own authority, and independently of the Council, which should have the effect and force of law for a period of six months. Such a power was urgently required during the late mutiny, and might advantageously be confided to the Governor General under the limitations contained in this Bill. He had omitted from his description of the measure any allusion to the representation of the various provincial Governments of India. That necessity it was proposed to meet, not by enlarging the number of representative Members in the central Legislative Council, but by establishing in the Presidencies of Madras and Bombay, and also in the North Western Provinces, local Councils formed generally

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  on the same principle as the new Council at Calcutta. In Madras and Bombay these Councils would consist of the Executive Council of the Governor of the Presidency, together with a number of other persons to be appointed by the Governor, in number not to be less than four nor more than eight, one-half not to hold official positions under the Crown. Care was taken to prevent the local Councils from dealing with any measures which might interfere with the general policy of the central Government, without obtaining the previous consent of the Governor General. The plan embodied in the Bill, therefore, while it would continue the existence of legislative Members attached to the Council of the Governor General for purposes of legislation, while it would enlarge the sphere from which those Members might be drawn, would, at the same time, render it certain that the Council so constituted could not be led to entertain the false notions of its own duties which had to some extent crept into the present Legislative Council. The new Council would not be a Parliament, or a great inquest of the nation, to use the language of a judicial Member of the existing Council, but it would be confined to its proper duty of discussing and passing laws. The system of local Legislative Councils, though a novel experiment, would, he believed, meet the wants of the different provinces of a country so vast and varied as India, while it would also relieve the Council of the Governor General of a growing burden of work which was now overwhelming. Having gone through the chief features of the measure, he would merely ask their Lordships to remember that it had been framed in accordance with the views and recommendations of the Governor General, that it had received the approval of the Members of the Council of India, and that her Majesty's Government confidently trusted it would be the means of improving the administration and promoting the welfare and prosperity of our Indian Empire.
  Moved, That the Bill be now read 2a.
  THE EARL OF ELLENBOROUGH:— My Lords, the noble Earl in moving the second reading of this Bill has adverted to many matters of detail, which I think can be more conveniently considered in Committee. I shall not trouble your Lordships by following him into any of those subjects. I shall confine myself altogether, in the few words which I shall take the liberty of
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  addressing to the House, to the principle of the Bill, which I apprehend to be a very great alteration in the manner of making laws for India. I entirely concur in the urgent expediency of putting an end to the scandal and mischief which have attended the operation of the present Legislative Council of India. I think the action of Parliament was absolutely required for that purpose. There are some provisions in this Bill which I approve. But when I remember the measure of Lord Grey's Government in 1833—a most able Government—which established in the Governor General in Council the exclusive power of making laws and regulations for all India, and placed under him and his Council the sole administration of affairs throughont our dominions in the East—a measure which was highly extolled at the time; when I remember that the Bill of 1853, also proposed by a very able Government—that of Lord Aberdeen—completely remodelled the measure of Lord Grey's Ministry; and when I remember that the Bill of 1853 itself, carried as it was almost unanimously through both Houses of Parliament, is about to undergo very extensive alterations through the medium of the measute now under discussion, I may, I hope, be forgiven if I do not unhesitatingly adopt all the provisions of this Bill, or view them as the expression of absolute wisdom and the production of perfect foresight. The provisions of the Act of 1853 met a difficulty generally acknowledged in the administration of India by the Governor General and Council in their legislative capacity. The Governor General at that time had to make laws for Madras, Bombay, and the whole of India; but he had a Council soley connected with Bengal; and, although he might communicate with Madras, Bombay, and other territories, he had not the advantage of personal intercourse with any one connected with those different Presidencies. It was, therefore, thought expedient to give him the advantage of that personal communication, and four gentlemen were to be selected as the representatives of the Provinces for the purpose of giving him that assistance. I entirely approved of that arrangement. If Parliament had stopped there, and had not done that which Parliament is, on many occasions, too apt to do, gone beyond the necessity of the case, I really believe that at this moment there would have been no complaint with respect to the action of the Go-

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  vernor General in Council in the exercise of his legislative power. Unfortunately, an undoubted error was committed by Parliament in framing that Bill. Where it was most expected that we should find strength we have unfortunately discovered the source of weakness; that is in the large introduction of what is called the judicial element into the composition of that Council. Now it is, I believe, the unanimous opinion of both Houses of Parliament that in that respect at least a decided alteration is absolutely required. But two other and perhaps even greater grievances have arisen out of the operation of that Act, for which Parliament is only so far responsible that it did not prevent their occurrence. Actively Parliament was not instrumental in the creation of these grievances. The first is that which has been touched upon by the noble Earl, and has arisen from the error committed by the Governor General in Council, in converting into the appearance of a Parliament that which was intended by both Houses of Parliament to be no more than an extended Cabinet; and, further, in establishing for the conduct of that extended Cabinet rules which have induced its Members to suppose that they were to act in a manner quite inconsistent with the intention of the Legislature here, and quite inconsistent with the conduct of the Government of India, in matters affecting the interests of the people. There was another and, I think, even a more serious error than this. The Council, even with the addition of the judicial gentleman, was admirably adapted to consider, in confidential intercourse as a Cabinet, any measures which might come before it; but composed as it was it was eminently disqualified for exhibiting in public all its failures to the eyes of any passers-by who might choose to go in and hear its unfortunate discussions, and in many instances, I fear, to gratify their desire to see humiliated the dignity of the Government of India. For these two errors—the greatest errors which were committed, and those which now bring the subject again before the House—the Governor General of that day in council is responsible. I entirely agree with what the noble Earl has said with respect to the character of Lord Dalhousie. He was a really great Governor General, and I have always so esteemed him. As a civil Governor I know no one whom I should place in competition with him. He committed some political errors, but I think
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  so highly of the ability of Lord Dalhousie—I think so highly of his resolution, and of the influence and authority which he had acquired throughout India, that I believe that as long as he remained in that country the effect of his errors could never have been perceived, that the mutiny would never have occurred; nor do I believe that if he had sat at the head of the Council, the members of that Council would ever have conducted themselves in the manner in which they have conducted themselves, by which they have incurred the disapprobation of all persons in this country. That is the opinion which I have always entertained of Lord Dalhousie, and I rejoice to have this opportunity of stating it. But, my Lords, what is that which is proposed in lieu of this condemned Council? I know not what is intended to be the composition of the Council in India under this Bill; Parliament cannot know. Parliament gives to the Governor General the power of having from six to twelve additional members of his Council; but between those numbers lies the whole secret of having a majority or a minority in his Council. As long as the Governor General confines himself to the circle of his Executive Council he has a fair right to expect a general and honourable support. I received such a support, although under most unfortunate circumstances, inasmuch as endeavours were made by persons in authority here to raise an opposition to me in my own Council. The Members of that Council, however, behaved honourably by me, and on all occasions gave me their fair support. As far as his own council goes, the Governor General may almost universally expect that every measure of his which fairly deserves approbation and support will receive them, and that they will not be reluctantly given. But beyond the limits of that Council all is uncertain, uncertain even in persons who occupy some of the highest positions under the Government. That arises from this circumstance: there are among the English in India two parties. One of these parties desires to govern India for the English, and to treat it as if it was a property. There is another party which adheres to the Queen's Proclamation—which desires to govern India in the spirit of that Proclamation, and to do equal justice to the Hindoos and Mussulmans as well as to the English, and that, above all things, to respect the religion of the people. That is by far the smallest party; and its head is necessarily

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  the Governor General. The intensity of party feeling on both sides in such, especially upon the subject of religion, that it overrules all the motives which generally control the conduct of men. That subject of religion is altogether vital. Our empire depends upon our adhering to the Queen's Proclamation in its full spirit with respect to that question. That is my opinion with respect to the Council which it is proposed to establish. Beyond the number of six the Governor General cannot go with safety. Does he obtain a better Council by getting even those six Members? The four gentlemen who represent the four Provinces are certainly among the first men in the country, and the best qualified to advise the Governor General. Who can he obtain in Calcutta—for to calcutta he is altogether confined? There may be some distinguished persons among the gentlemen holding office under the Government, but he does not want them in the Council. If he wants to consult them he can send for them, and consult them out of the Council just as well as in it. As regards the other gentlemen, among whom, though undoubtedly a Native is eligible, there will be but little room for him—among the few who remain there is not one gentleman who of necessity knows anything of the people of India beyond the Mahratta Ditch, or who has the smallest reputation or influence in India beyond that narrow limit. And that is what you propose to the Governor General as a better Council than the representative Council which he now enjoys. I greatly prefer the Council as it now stands, without the Judges, to that which it is proposed to establish by this measure. But observe how the matter stands under this Bill. If the Governor General commits, as he may, the error of having an enlarged Council, in which he will be in a minority—which is a very great inconvenience, as noble Lords know, in the conduct of public business—if he finds himself in a minority there is no redress. These gentlemen are there for two years. During two years there is no relief for him; he is obliged to go on with them, and has not the power, which ought to reside in every Government, of dissolving an assembly which is acting against the interests of the people. For two years that enlarged number must remain, although it places him in a minority. But if he does that which would be still more mischievous—if he preserves the rule unfortunately adopted with respect to this Council of ad-
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  mitting every one who is going by to hear their debates in Cabinet—do noble Lords opposite think that that would be an advisable measure? If they do, let Her Majesty's Government try it to-morrow or next Saturday, and see how highly convenient they would find it that a confidential discussion of the measures of the Government should be conducted in public. If the Governor General takes that course he has no redress at all. The evil arises in the Council, and it is only through the Council that he can redress it. Of course, therefore, redress there will be none. What can he do? No doubt, if he can get a majority he may pass an ordinance; but he will not be able to do that, because he will be in a minority. He can, if he pleases, adjourn the Council. He may do more—he may direct the Council to meet in another place. That would be a strong measure, and would, in fact, be sending the Council into exile, because the members cannot leave Calcutta; the official men cannot leave their offices, and the non-official men cannot leave their business, or their business would soon leave them. Therefore, to do what the Bill says he may do, remove the Council to any other part of India, would be, in fact, to dissolve it. Under ordinary circumstances, then, the Governor General has no resource if he commits these two errors, and I think that is a very great fault in the Bill. Allow me to say a few words with respect to the other alteration which is to be made in derogation of what was deemed absolute wisdom in the time of Lord Grey, when he and his Government proposed that all legislative authority should be exercised by the Governor General and his Council, to whom the other Presidencies should be altogether subordinate. As the law now stands, the Governments of Madras, Bombay, the North-West Provinces, and the Punjab, may send a draught of any Bill to the Governor General for his consideration, setting forth, of course, reasons and facts on which he may form his own opinion. If the Governor General is satisfied that the Bill is a reasonable one, he can, with the assistance of his Council, at once make it law. There must, no doubt, be some delay in making these communications from one place to the other. This Bill, however, takes from the Governor General the advantage of personal communication with the gentlemen from Madras and Bombay. Does the Bill in any manner diminish the responsibility of the Governor General in

  599
  respect to legislation for the subordinate Presidencies? Not in the slightest degree. If he is a conscientious man, as I I trust the Governor General will always be, he will have exactly the same trouble in that respect as at present, and, indeed, in some cases rather more. These Presidencies are not made independent. On the contrary, on a great many matters of importance, they cannot bring in a Bill without first applying for permission to do so to the Governor General, and sending him a copy of the Bill, in order that he may form an opinion on it. On other less important subjects they may pass a Bill, and send it to the Governor General for his concurrence or rejection. If the Governor General rejects the measure he is bound to give his reasons; and, if he assents, he is, of course, bound also to give his reasons for that decision to the Home Government, who may call it in question. In both cases he is equally bound to make himself master of the subject, and to satisfy himself as to the nature of the measure. He must thus perform two operations instead of one. He must give his opinion before a Bill is brought in, and afterwards, when it has been passed by the local Legislature. I confess that, had I such a task to discharge, I should think I was abandoning my duty if I did not make myself thoroughly acquainted with the subject, and carefully ascertain whether the Bill ought to be rejected or agreed to; and I cannot see how any conscientious man can relieve himself from that sense of responsibility. Therefore, if Parliament pass the Bill as it now stands, the Governor General will not experience in the slightest degree any real relief from the responsibility which he has now to bear. I own, however, that if this Bill pass I expect there will be a good deal of laxity in the manner of dealing with Bills sent up from Madras and Bombay, which will be by no means conducive to the interests of the country. The result, I fear, will be an enormous amount of local taxation, which will not—as it certainly was not in former times—be prudently imposed; and the amount of local taxation will always be made a reason for not bearing a fair share of the Imperial taxation which the Governor General may desire to impose. Madras and Bombay have always been very impatient of taxation, as I know by experience, and as is witnessed by the last speech of Mr. Laing. Yet look at the difference of taxation there and elsewhere. For instance, on salt, a man
  600
  in Bengal pays three times as much, and in the Punjab and North-West Provinces twice as much, as a man in Madras or Bombay. I recollect the difficulty I had in raising the salt tax in these two Presidencies, and also in collecting the duty on opium in Bombay. A sort of universal insurrection is made by the governing people in these subordinate Presidencies whenever the slightest increase of taxation is proposed; and the pressure is really most serious. I do not expect better legislation for Madras and Bombay under the system now proposed than they have had hitherto; and, as I have said, I feel satisfied that the Governor General, if he does his duty and appreciates his responsibility, will be subject to the same labour and trouble as at present, and sometimes to more. Having promised at the outset of my remarks to confine myself to the principle of the Bill, I do not think I should be justified in going further. I observe with great regret that in framing this measure Her Majesty's Ministers have done that which has been so often done before—have gone beyond the necessity of the case and provided for matters which do not at this moment press for legislation. Speaking from what little experience I have had myself, but chiefly from the experience of others, I must say that of all things the most imprudent in India is to make great and frequent changes, and to disturb the mind of a people who love quiescence. and desire to adhere to that which is. When I recommend that you should go back practically to the state of things which formerly prevailed in regard to the legislation of India, I do not mean that the Governor General should dispense with assistance and advice. I have already expressed, in your Lordships' House, my opinion that the Governor General would do well to recur to the counsel and advice of what would here be called the Privy Council, and which is there termed a Durbar—an assembly of the most distinguished and influential persons of all classes in the country, such as that in which the old Princes used to sit and frame their laws. That would be a consultative Council, in entire accordance with Native feelings and predelictions, and, depend on it, it is only by consulting their feelings, by doing that to which they are accustomed—by respecting their prejudices even—that it is possible to reconcile ourselves to the people of that country. In a Durbar constituted as I have described, which might be held by the Governor Ge-

  601
  neral at such places as Allahabad and Lahore, he would sit as the representative of Her Majesty. But at present—nor probably will the case be altered by the Bill—the Governor General is excluded from his Council by the proceedings of its members. I observe that Lord Canning is never present in his Council. Could that have been contemplated by Parliament? Certainly not. The Governor General was made President of the Council, and, of course, it was expected that he would sit there, influence the proceedings, and derive advantage from the debates. I do not, however, question the propriety of Lord Canning's decision. I think that the Governor General could not sit in such a Council as Parliament has given him, or, perhaps, in such a one as is now proposed, without lessening the dignity of his position, and detracting from the influence and character of the British Government. Being firmly satisfied that you must govern India primarily for India, and through the people of India, in conformity with their opinions, feelings, prejudices, and customs, instead of blindly following your own, I object altogether to the general principle of this Bill.
  THE DUKE OF ARGYLLthought that the noble Earl had greatly exaggerated the changes proposed in the Bill and the effect they were likely to produce. The truth was that hardly any change of an important nature was contemplated, except in regard to the constitution of the Council and the nature of the business which would ordinarily be brought before it. In the relations between the Governor General and his Council very little alteration would be effected by the Bill. There could be no question, he thought, that the Council was originally intended by the East India Company as a check on the Governor General; and that idea was maintained by the Regulating Act of 1773. It was under that system that the celebrated quarrel arose in 1784, between Warren Hastings and Sir Philip Francis. Another Act was then passed reducing the members of the Council from four to three. As the Governor General possessed a vote in the Council, the Practical effect of the change in the number of members was to give him the power to overrule the Council, although there was no such power given him by the Act. A great change was made by the Act of 1793. In truth, they were now living under the provisions of that statute, and this Bill made very
  602
  little change in them. The Act of 1793 gave power to the Governor General to overrule the Council in all matters and questions propounded in Council; and, so far, it seemed as if the 51st Clause applied to executive as well as legislative Acts. But the Clause went on to say that the power of overruling the Council should not extend to altering or laying down general rules and regulations, or to the power of taxation. That was a near approach to the separation of executive and legislative functions. The Act of 1833 made no change in this respect. It was true the clause in the Act of 1793 was not renewed, but practically the Governor General was supreme in executive matters, though not in matters of legislation. Such was the state of things down to 1853. His noble Friend who moved the second reading had stated, and he (the Duke of Argyll) could personally vouch for the fact, that it was not the intention of Lord Aberdeen's Government to make any change in the powers of the Council or in the relations between the Council and the Governor General by adding to the number of Councillors. The objects of the Act of 1853 were simply to strengthen the legal element in the Council and to give the power of recommendation to the minor Presidencies. But, undoubtedly, owing to the forms of procedure which the late Lord Dalhousie unfortunately adopted, and to the Legislative Council meeting in a separate place from where the Executive Council met they began to assume greater powers than they had enjoyed before that Act passed. The only changes which this Bill was intended to make were alterations in the constitution of the Council, and in the system under which their proceedings had assumed the forms of a Parliamentary assembly. It made no change in the relations between the Governor General and his Councillors, except in one important respect. A clause was inserted giving power to the Governor General, in case he could not pass any law, to pass an ordinance which would have the effect of a general law for six months—the practical effect of which was that when the Governor General was in a minority in his Council he could overrule the decision of the Council for six months. That provision was entirely new, and it put into the hands of the Governor General a powerful and most important weapon, not only with regard to executive, but legislative acts. His noble Friend (the Earl of Ellen-

  603
  borough) had complained that owing to the extra number of Councillors, if the Governor General proceeded to the maximum which this Bill allowed—namely, twenty, of whom twelve would be nominated by him and the remainder made up of existing members and the Lieutenant Governors —he might be placed in minority in his Council. The noble Earl had drawn an important distinction between two classes of Englishmen in India—those who represented the common feeling of the Presidential cities, that India ought to be governed mainly for the benefit of Europeans, without due regard to the feelings of the Natives, and those who desired to see India governed in the spirit of the Proclamation which had been recently issued by the Crown. But the noble Earl should remember that although it was perfectly true that the Governor General might possibly be in a minority in the Council, as he always might have been, yet the Bill amply secured a majority of that particular class (prominent among which were the Indian Civil Servants) who were for governing India in accordance with the wishes of the Natives; there would be the officials connected with the Governor General, and the members of the Civil Service; and the independent members, representing the commercial community, would always be in a very small minority. He thought that this was a great security for the good government of India, because, whatever might be said of the shortcomings of the Civil Service, he was sure it would be admitted on all hands that the Civil Servants had uniformly desired to consult the feelings of the Native population. They had shown that desire in the manner in which they had treated the indigo question, and opposed the commercial community in their wish to pass a law rendering perpetual a system which practically established slavery in Bengal. He entirely agreed that it would be a most dangerous thing if the Governor General could by any possibility, be overruled by the class which represented the spirit of the commercial community of Bengal, and that, in fact, such a result would be a return to the worst days of the government of India by a commercial company. There was nothing of the sort, however, in this Bill. With regard to the constitution of the Council the commercial element would always be a small minority, and the Governor General would have complete power to overrule their decisions and to carry against their
  604
  will a decision of his own, which would for a short period have the effect of law. With regard, then, to the relations between the Governor General and the Council the Bill only made the Governor General still more supreme and absolute than at present. With regard to the relations proposed to be set up between the Governor General and the minor Presidencies it was intended to revert to the system which existed between 1807 and 1833, under which those Presidencies had the power to initiate measures and to pass them into laws if they were not vetoed by the Governor General, and he was sure that no one who had read the Despatch of Lord Canning could fail to see that the Governor General had given important and valid reasons for going back to that principle. He thought it was a strained interpretation to say that if the Governor General were conscientious he would have more trouble than he had now. Such questions as the land tax might be discussed by the local Presidencies in detail, and although the Governor General would be responsible for his assent to the measures proposed, no one could doubt that he would give his assent to local Acts, and reserve his veto for matters which involved any important principle. These were the chief objections to the Bill. They were not of any great force, and they did not touch the principle of the measure, which was to simplify the constitution and to divide the duties and functions of the supreme Government at Calcutta while giving greater power to the local Presidencies. There was one very important clause in the Bill, greatly limiting the power of the Council and increasing the power of the Governor General, to which the nobel Earl had omitted to refer, and which he (the Duke of Argyll) ought to notice. By the Act of 1793, under which Mr. Pitt and Mr. Dundas intended that the Governor General should be supreme, there was a special proviso that the power of the Governor General in overruling his Council should not go to the extent of preventing any Councillor from originating and propounding any matter which he pleased in his Council. It was provided that the Governor General might adjourn the discussion once or even twice; but beyond twice he could not do it; and he suspected that it was under the operation of that provision, and strictly in accordance with the existing law, that Sir Barnes Peacock had moved resolutions calling in question a

  605
  merely executive Act with which it was not intended a Councillor should have the power of dealing. To guard against that inconvenience and to limit the power of the Council, and at the same time to increase the power of the Governor General, there was a special clause in this Bill to the effect that no Councillor should propound any question whatever except one touching and concerning some legislative measure before the Council, without the previous sanction of the Governor General. A still further limitation had been introduced, which was borrowed from our own constitution, that no member of the Council should bring in any Bill which touched the revenue and taxation, religion, the military forces, or the relation of the Government with Foreign States, except with the consent of the Governor General. Considering the general provisions of the Bill, he trusted the House would see that the objections raised by the noble Earl opposite were, to a great extent, unfounded, and that the measure would materially improve the system of government in India.
  LORD LYVEDENsaid, that in spite of what had fallen from the noble Duke he must regard this Bill as one of great importance. It was idle to say that this was merely recurrence to the Act of 1793, for, looking to the change of circumstances since that time and the manner in which public opinion both in England and India had been awakened to the subject, it would be almost as easy to return to the epoch of 1793 as to the state of the law which prevailed at that date. No doubt, after the declaration of Lord Canning, after the desires expressed in the Indian press, and after what had passed in the House of Commons, it was quite necessary that some steps should be taken by the Government. Though the House of Commons had been actuated by the idea that it was doing something for representative institutions in passing this Bill it would not be difficult to show that it would have no such effect. He regretted very much that the Bill had not been introduced in that House instead of the House of Commons, for, no doubt, such a speech as that of the noble Earl (the Earl of Ellenborough) would have had the effect of creating more discussion in the other House, and the Bill might have been moulded into much better form. He regretted, too, that the report of the Council had not been produced—he never admired the institution of such a Council, but it was scarcely fair to the able men
  606
  who composed it that they should be treated as a Board of Revenue or some other inferior Board, and not as the advisers of the Secretary of State. It had been often said that it was not the intention of the Act of 1853 to create a local Parliament at Calcutta, and very probably such was not the intention of the Government of the day; but that the Act was so construed by Lord Dalhousie and by the public at large both in India and England there could not be the slightest doubt. The difficulty with which the Government had to deal arose out of the Legislative Council having assumed powers which were not intended to be given to it, having made speeches and gone into discussions which were not convenient, The greatest inconvenience of all, however, was the Chief Justice, and the chief object of this Bill seemed to be to do away with Sir Barnes Peacock. Surely, a simple declaratory Act would have been quite sufficient for that purpose. He could not but regard the alterations proposed by this Bill as prejudicial. By this Bill both representation and publicity would be done away with. There was nothing in the Bill to compel the Governor General to take representatives of the various Presidencies into his Council—he might select all his Council from one Presidency if he chose, and leave the smaller Presidencies totally unrepresented. As to publicity, while it was left in reference to the proceedings of the Councils of Madras and Bombay, it was taken away with regard to the great legislative Council of Calcutta. It was scarcely to be expected that the Indian public would acquiesce in that. You might just as well shut the doors of the House of Commons and tell the people here to be satisfied with having the debates of the Common Council to read. It was idle to attempt to limit the subject to be discussed by the local Councils. While there were men in them of equal rank and ability to those who sat in the Calcutta Council, and felt they were quite as competent to deal with public questions as the gentlemen who sat there, they would break through all rules and would discuss any questions of public interest they chose. He agreed with the noble Earl who had brought in this Bill, that direct representation of the Natives in the Council was impossible, as there were no means by which such representation could be attained; but on the selection of Natives the recommendation of a petition recently presented

  607
  to the other House might be deserving of consideration, that the Natives selected should be nominated by some delegation of Natives. He saw no reason why some words should not be introduced into the Act to the effect that a certain number of the Members of the Council should be Natives. General words, "noble words" according to Lord Macaulay, had been introduced into the Act of 1833 and other Acts to the effect that Natives should be admitted to all offices, but notwithstanding the Natives had been passed over up to 1853, according to Mr. Cameron's report, and to the present time. He was, therefore, very anxious to see some peremptory clause introduced for this purpose. He entertained a strong objection also to the proposal to make throughout India an indefinite number of small Councils, which would probably introduce a greater change in the country even than had been effected by the transfer of the Government to the Crown. The Council, as it would hereafter be constituted, would certainly entail an enormous expenditure. He could not understand how the non-official Members of the Council were to be paid. [Earl DE GREY and RIPON: They are not to be paid at all.] If that were so the selection must be confined to the residents in Madras or Bombay. He warned the Government, however, that if the local Councils really became effective, they would lead in the end to the separation of the Presidencies, which would thus become split up into colonies, instead of forming one great empire. Another evil which he wished to point out was that, as he understood, the Governor of Bombay or Madras was, ex necessitate, to succeed the Governor General. Now, these persons might not be selected for the same object; they might not have the same scope of mind; and, therefore, it would be well, he thought, to leave it as now and to take care that the Senior Member of Council was an efficient man, or, in all cases to provide a Provisional Governor General. He was happy to think that the task of carrying the Bill into effect was intrusted to Lord Canning, in whom he had as great confidence as when he first proposed his appointment; and he was certain that Lord Canning, acting in concert with the men whom he knew so well, would make the best appointments, and would carry out the Bill as well as it could be carried out. At the same time, Lord Canning's career was nearly at an end, and he was afraid
  608
  that this Bill would increase instead of diminishing the evils in the way of any future Governor General of India.
  THE EARL OF DERBY:My Lords, I will not attempt to enter on a discussion of the very important considerations involved in this Bill, which has been introduced by the noble Earl opposite with singular clearness and ability. Nothing could be more succinct and lucid than his explanation of the views of the Government. Nor will I follow the observations which have been made respecting it by my noble Friend (the Earl of Ellenborough). No doubt my noble Friend has taken some great objections to what may be termed the leading principles of the Bill, and those objections coming from him, are entitled to great weight, because everything which falls from him on such a subject comes to us with the full weight of his authority and experience. With respect to that portion of the Bill which establishes the local Legislative Councils I must say that I think that that is a matter which deserves the most serious consideration, and my noble Friend's observations on that point are entitled to peculiar attention. To another portion of the measure I do not attach so much importance as my noble Friend—I mean as to the danger which he apprehends that the Governor General will be over-ridden in the enlarged Council. When I look at the mode in which the Council is to be constituted, and see that one-half the members who are to be added may be persons holding official situations, and that the whole of them are to be selected by the Governor General himself, I think there is no danger of the Council exhibiting a great appearance even of independence, or at all events of hostility to the Governor General, or any desire, even if they had the power, of overruling any decision of his. On one point I believe there is no difference of opinion—namely, that the Legislative Council as lately constituted, not by the intention of Parliament, but by the course pursued in India and acquiesced in here, ought not to be permitted to continue: that the system of a little mock Parliament is wholly unsuited to the circumstances of India and to the position which the Council occupies there. I do not, however, rise for the purpose of discussing the alterations which it is proposed to make. I rather wish to ask for an explanation on a point of considerable importance. As to the constitution of the Council and the functions they

  609
  have assumed to themselves, there is no difference of opinion. But I wish to have a distinct explanation respecting the degree of publicity which it is intended should be given to the deliberations of the Council in its executive or legislative capacity. In the Bill itself I do not find any distinct explanation of the intentions of the Government on this subject. My noble Friend recommends the Government to decide on this question by the light of their own experience, and has pointed out how impossible it would be to conduct the proceedings of an enlarged Cabinet in the presence of the public. What I wish to know is whether the Government intend to draw a distinction, as regards publicity, between the minor and the enlarged Council in their executive and legislative capacity? The Legislative Council, with the additional Members, cannot be considered exclusively as an enlarged Cabinet, because it is summoned strictly and solely for legislative purposes; but the Executive Council, with the additional Members, is strictly in the position of a Cabinet. A consultation will take place, and nothing can be more inconvenient than that the discussion on such occasions should be carried on in public. I repeat that I do not find in the Bill any distinction drawn between the amount of publicity to be given to the proceedings of the Executive Council meeting in its Cabinet and confidential capacity, and its proceedings as enlarged with the additional legislative Members, and meeting for purposes of legislation only. I should like to know whether the Government propose to introduce a provision for the purpose of clearing up this point. Then I cannot help thinking there is an oversight or verbal inaccuracy in the 3rd Clause respecting the constitution of the Council. Three Members are to be from time to time appointed by the Secretary of State for India from among "such persons as shall be, or shall have been, at the time of such appointment, in the service in India of the Crown, or of the Company and the Crown, for at least ten years." That sentence is really nonsense. I suppose it is not meant that any persons who may be in the service of the Crown, even if appointed only the day before, shall be admissible to this office. But by the collocation of the sentence the qualification of ten years has reference both to the "shall be" and the "shall have been." Now, "shall be for at least ten years" is nonsense. As the clause stands it leaves it
  610
  uncertain whether all persons "shall have served" the Crown for ten years. This, as the qualification, ought to be made clear and definite. Perhaps the confusion is the consequence of some Amendment in the House of commons by which the sentence became distorted and ungrammatical. I call attention to the subject because I think the noble Earl will see the importance of making the qualification of Members of the Council clear and distinct.
  EARL GRANVILLEsaid, that as respected the action of the Council in its executive capacity no publicity was ever intended to be given to its proceedings; but with regard to the publicity of the debates of the council in its Legislative capacity Her Majesty's Government had given the subject full consideration, and had thought it best to leave that question in the hands of the Governor General. In regard to the clause respecting the qualification, the error had arisen from their having taken the words of the old Act, and would be rectified in Committee.
  THE EARL OF DERBY:As it at present stands a person who has been only one day in the service of the Crown may be chosen, provided he is in India at the time of the appointment.
  EARL DE GREY AND RIPON:The clause can be amended by leaving out the words "shall be," so as to make it quite plain that the qualification is to be ten years' previous service under the Crown in India.
  Motion agreed to.
  Bill read 2a accordingly; and committed to a Committee of the Whole House on Tuesday next.
  House adjourned at half-past Eight o'clock, to Thursday next, half-past Ten o'clock.