§ Order of the Day for the Second Reading, read.
§ Moved, "That the Bill be now read 2a."—(The Duke of Argyll.)
§ LORD CAIRNS
said, he was anxious to obtain their Lordships' attention for a few moments to a question connected with this Bill, which was of great importance and great interest. The question was the precise position and powers of the Secretary of State for India with respect to his Council, as regarded the revenues and expenditure of India. Their Lordships would readily conceive how important it was that no misapprehension should exist on this subject, for nothing was more to be deprecated than that at a future period, through a careless interpretation of the present law, a misunderstanding should arise between the Secretary of State and his Council. But their Lordships might remember that two very antagonistic views had 1822 been expressed on this point. The noble Marquess (the Marquess of Salisbury), who had himself held the Office of Secretary of State, in a speech delivered at Manchester last autumn, said it was to be regretted that, as he understood the law, a Secretary of State was liable to be checked, with regard to any undertaking which he thought of importance to the Government of India, by the refusal of the Council to sanction the expenditure necessary for giving effect to that undertaking. The noble Duke (the Duke of Argyll) the present Secretary of State, had, on the other hand, stated that, as he understood the law, the Secretary of State on this subject was supreme, and not liable to the control of his Council, with a trifling exception as to grants of pensions and salaries. Now, the question depended upon two sentences in the Act of 1858, which brought the government of India directly under the control of the Crown and of Parliament. It provided that a Secretary of State should perform all such powers and duties in any wise relating to the government or revenues of India as had been exercised or performed either by the East India Company or the Board of Control, "save as herein otherwise provided." Now, a later section, the 41st, was in these terms—The expenditure of the revenues of India, both in India and elsewhere, shall be subject to the control of the Secretary of State in Council, and no grant or appropriation of any part of such revenues, or of any other property coming into the possession of the Secretary of State in Council by virtue of this Act, shall be made without the concurrence of a majority of rotes at a meeting of the Council.This seemed exceedingly clear. He should have supposed that the phrase "grant or appropriation" had no limited or peculiar meaning, but was to be understood in its popular and ordinary sense, and that the section required the consent of a majority of the Council on any question of expenditure. But it was important that on a great question—what he might almost term a great constitutional question, for in reality it touched the constitution of the government of India—they should not confine themselves to merely scanning the words of an Act of Parliament. If it were really the law that the Secretary of State could not direct the expenditure of the revenues of India without the con- 1823 sent of his Council, the responsibility of the government of India to Parliament was lost; because you might have the Secretary of State compelled to come down to the House and say—"I think a certain expenditure necessary to the welfare and good government of India; but I am over-ruled by my Council," and the Council were irresponsible to Parliament. The noble Duke (the Duke of Argyll), indeed, on introducing the present Bill, stated that if he believed the law to be in this state he should ask Parliament to modify it. It was clearly desirable to know what the law was, and if it required amendment the Bill afforded a convenient opportunity for making such amendment. The noble Duke had stated that he entertained no doubt that Parliament did not intend, in 1858, that the Secretary of State should be controlled by the Council on questions of finance; and though lawyers might say it was not a legitimate mode of construing an Act of Parliament to refer to what was said or done at the time, it was convenient to do so when the object was to arrive at a proper perception of the spirit which actuated the Legislature. Now, in 1858, three India Bills were introduced into the House of Commons, the first being that of Lord Palmerston's Government; and the noble Duke said he had reason to believe that it was never intended by the Government of Lord Palmerston that the Secretary of State should be controlled by his Council on questions of finance. The noble Duke, however, was, he thought, mistaken on this point, for Lord Palmerston, in introducing the Bill, stated that the full power of the President—his Bill proposed a President and a Council of eight—would not extend to matters involving the expenditure of the Indian revenues, since for purposes of that kind it would be necessary that he should have the concurrence of four Members of the Council to any proposal he might have to submit. The President and four Members would of course form a majority of the Council; and the Bill contained a clause giving effect to this proposal. Owing to the change of Government the Bill was not proceeded with. A second Bill was introduced, but this was also abandoned; and then a third Bill, which ultimately became law, and now regulated the government of India. In its original shape 1824 that Bill contained no check upon the Secretary of State in matters of expenditure. His noble Friend, Lord Stanley, on moving the second reading, said—With regard to the question of finance, it was provided in the Bill of the noble Lord (Viscount Palmerston) that no increase of expenditure should take place without the consent of four members of the Council. In omitting that provision we certainly did not do so from ignorance of the perils which may arise if an uncontrolled discretion of increasing expenditure be conferred upon a Minister, nor from any desire to assume that power to ourselves. But it appeared to us that such a provision was totally inadequate for the purpose aimed at. We thought a check of that nature would be illusory rather than real, and that, being illusory, it would only servo as a screen, and would prevent the application of that other and more efficient kind of control upon which we rely. It seemed to us that the object would be better attained by that on which I think Parliament has a right to insist, and which Parliament has it in its own hands to secure—namely the regular, the periodical, and the minute publication of Indian accounts, and the submission of them to this House.—[3 Hansard, cli. 326.]Thus far there was a clear contrast between Lord Palmerston's Bill and the Bill No. 3. But this matter received much consideration, and on the 25th of June Sir Charles Wood—the present Viscount Halifax—made this remark—If it was intended under the 39th clause"—regulating the mode in which grants were to be made—" that the Secretary of State should have no power to order the payment of money at home without the consent of a majority, or at least a certain number, of the Council, all he had to say was that some words must be added to make the meaning clear. The clause, however, was confined to home expenditure, and did not touch the much larger item of Indian expenditure, on which there appeared to be absolutely no check whatever. At present the President of the Board of Control could certainly order an extraordinary expenditure for war purposes through the Secret Committee, which in itself was some sort of control; but with regard to ordinary expenditure he had not the power to increase a single salary, except through the Court of Directors. But in this Bill there was no check whatever upon the Indian expenditure."—[Ibid. 456.]In the same debate Sir James Graham, who took a prominent part in the discussion on the subject, said—With regard to the home expenditure, he must say he did not find the words of the 39th clause, to which the noble Lord (Lord Stanley) had referred him, sufficiently explicit, and, with regard to the Indian expenditure, he did not find in the Bill any restraint whatever."—[Ibid. 457.]A number of Amendments were then placed on the Paper—especially by, a Member connected with the East India Company—proposing to restrict, in the closest and most severe way, the action 1825 of the Secretary of State with reference to Indian expenditure; and, before the Bill reached the next stage, Lord Stanley placed on the table an important despatch from the Court of Directors, together with a Paper of Amendments prepared by him in consequence of the objections which had been offered to the Bill. The despatch recommended, in Paragraph 9, that in all questions of expenditure the Council ought to have more than a consultative voice; that financial matters should be dealt with exceptionally; and that the Secretary of State should not, on those matters as on others, be able to set aside the opinion of his Council; one of the reasons urged for this being that the propriety of this had been recognized in Lord Palmerston's Bill, and that its omission in the third Bill must have proceeded from inadvertence. Lord Stanley, accordingly, included in his Amendments that which ultimately became the 41st section of the Bill, which he had already quoted. The change thus proposed in the Bill attracted its due share of attention, and in Committee, on the 2nd July, the noble Earl (Earl Russell), then Lord John Russell, said—The noble Lord (Lord Stanley), at the suggestion of the right hon. Gentleman the Member for Carlisle and others, proposed a clause that the Secretary of State should not be able to dispose of the revenues of India without the consent of the majority of the Council. The hon. and gallant Member for Aberdeen had said that the Burmese war cost £9,000,000, and that the expense had been incurred in consequence of an order of the Minister for India alone, and yet it was said that £10,000 was not to be spent without the consent of the Council."—[Ibid. 895.]Mr. Roebuck, too, he remembered said the whole thing was a sham, for that while appointing a responsible Minister, he was not to be allowed to spend any money without the concurrence of his Council, who would check him at every turn. The clause, however, was passed by the House of Commons; and, on the second reading of the Bill in their Lordships' House, the noble Earl opposite (Earl Granville) pointed out with great ability what he regarded as its defects, some of which were, perhaps, more perceptible now than at that time. Alluding to the way in which the Secretary of State would be placed at the mercy of his Council with regard to finance, the noble Earl said—With regard to the very difficult and complicated questions of restriction upon expenditure, 1826 here again we proposed that no increased charges should be made on the revenues of India, except with the consent of the majority of the Council. The present Government, in their first Bill, entirely omitted this restriction. The noble Earl (the Earl of Derby) shakes his head; but the Bill in this respect had undergone such a change that the restriction which it proposes is much more stringent than that which we proposed. It goes to (his extent, that there shall be no appropriation of the revenues of India without the consent of the majority of the Council. In fact, if they choose to fully exercise their powers, they can, like the House of Commons, 'stop the supplies,' and so put a stop to the proceedings of the Government altogether. By this clause you render perfectly nugatory the other clauses by which you give, in case of urgency, power to the Secretary of State to act secretly and speedily, because there is hardly an imaginable case, in which he would be called upon so to act, in which some appropriation of revenue would not be necessary in order to accompany that exercise of his power. I do not believe that these powers will be fully exercised by the Council; I do not think they will go to such a length as that; but there is some absurdity in leaving this matter to the control of a Council, while you, at the same time, refuse to give them powers which I think ought properly to be exercised by them. I think that in this respect you are doing what is a great sham"—[Ibid. 1469.]There was plainly no misapprehension as to the relative positions of the Secretary of State and his Council. When the Bill was in Committee the noble Duke opposite (the Duke of Somerset) also addressed himself to this point and proposed the omission of the 7th clause, on the ground that it tied the hands of the Secretary of State and would prevent him from making expenditure necessary for India. The noble Duke said—The House of Commons passed this Bill under the idea that they would make the Secretary of State responsible; but they, nevertheless, established a Council which, whenever money was wanted, would have him entirely under control, for he would be unable to move in opposition to the views of a majority of the Council. Perhaps the Council might say they wished to lay by so much money for purposes of irrigation, but the Secretary of State might think it was more desirable to expend it on barracks, in order to improve the health of the army. In such a case, whenever a question as to the health of the troops was raised in the House of Commons, the Secretary of State would be compelled to say he was no longer responsible for the health of the troops because his hands were tied. How could they say there must be divided management and not divided responsibility? This was a problem which they must solve, and unless they could solve it the best thing they could do was to strike the present clause out of the Bill If the Council were given up, the Bill would be worked much more efficiently, the Secretary of State would be able to originate measures and to carry them out with more energy than would be possible if it were retained."—[Ibid. 1571.]1827 The Amendment, however, was not pressed, the feeling of the House being against it, and the clause remained in the Bill when it became law. Now, of course, it was possible that both Houses were at that time under a delusion as to the meaning of the clause, but of the meaning they attached to it no doubt could be entertained. In fairness to the noble Duke opposite (the Duke of Argyll) he would now quote his view of the clause. The noble Duke said—In this country, of course, all expenditure is voted by Parliament, and an Appropriation Act is passed sanctioning the application of the money to particular purposes; and I quite admit that, though the Secretary of State would have the power to order any services to be performed, yet, if the majority of the Council could veto the payment for those services, they would have it in their power to checkmate the power of the Secretary of State. But, according to the usual practice of the Government of India, no system of vote or appropriation is necessary for the payment of services in India, and it is the opinion of all whom I have consulted, including the Law Officers of the Crown, that, under the present statute, it is unquestionably in the power of the Secretary for India to order in India any service which may appear to be required, and that payment for this service is made in India, and the disallowance of that payment is not competent to the Council without the sanction of the Secretary of State. It follows from this argument—which I believe to be well founded both upon the historical facts of the case and the words of the Act—that the Secretary of State is supreme in all matters whatever, except simply such matters as were included under the financial veto of Mr. Pitt—that is, direct grants of appropriations of money to persons either here or in India which might be made for purposes of political jobbery. That I believe to be the state of the law; and if it be, I need hardly say that it makes the Secretary of State supreme in all matters, whether they do or do not cost money."—[3 Hansard, cxcv. 1074.]Now he must remind their Lordships of what the Act actually said. The affirmative and enacting part of the clause said—The expenditure of the revenues of India, both in India and elsewhere, shall be subject to the control of the Secretary of State in Council.Then came the exceptive and negative part—And no grant or appropriation of any part of such revenues, or of any other property coming into the possession of the Secretary of State in Council by virtue of this Act, shall be made without the concurrence of a majority of the votes at a meeting of the Council.Now the noble Duke (the Duke of Argyll) said that that provision was inserted because there was in reference to India no Appropriation Act like that 1828 which was annually passed in reference to the expenditure in this country. But the Government of India Act contained nothing to show that any technical sense was attached to the word "appropriation;" and when the section provided that "no grant or appropriation" should be made, without the concurrence of the Council, he (Lord Cairns) could not but conclude that the words were to be understood in their ordinary and popular sense, and that there could be no application of any part of the revenues of India to any particular purpose without that concurrence of the Council. For instance, the Secretary of State might wish for a certain railroad to be constructed, the Council of India might differ from him as to the policy of such a work, and object to the expenditure being provided out of the revenues of India; yet the Secretary of State might send out orders for the railway to be constructed, and for the expenditure to be provided out of the revenues of India; or without their consent, he might direct a scheme of irrigation to be carried out at the expense of the revenues of India; in the following week the Secretary for India might think that it would very much conduce to the health of the troops that barracks should be erected, and, though the Council might be in direct antagonism, send out to India an order for the erection of barracks. The result would be that £5,000,000 or £6,000,000 would be applied from the Indian revenues to that particular purpose; and yet, according to the view of the noble Duke, though thus expense was incurred against the will of the majority of the Council of India, the payment of this expenditure out of the revenues of India did not come within the meaning of the words "grant or appropriation of revenue" in the clause in question. Since the Act of 1858 was passed there had been three or four Secretaries of State for India, and, though he could not speak with certainty as to the opinions of all of those eminent persons, yet he could say with respect to some of them, that, up to the present time, they had acted on the construction of the law which he had submitted to their Lordships. He was confident that in no single instance had any appropriation of the revenues of India, in the sense in which he used the words, been made by any Secretary for India without the consent 1829 of the majority of the Council. What he wished to show was the grave importance of settling this matter. As far as he knew, no antagonism up to the present time had arisen between any Secretary for India and his Council, and therefore the opportunity was favourable for re-considering the law of 1858. There might come a time when a difference of opinion or antagonism would arise between the Secretary and his Council, and then, if the law were as he had stated it, the consequence might be great embarrassment with respect to the government of India, and the difficulty would have to be relieved by special legislation at a time, perhaps, when feelings of a warmer character than now existed might have been excited. He therefore urged on the noble Duke the Secretary of State for India, the expediency of taking the opportunity afforded by the passing of this Bill through the House, to explain this views of what ought to be the policy of the State on this subject, and to ask Parliament to make an alteration in the law, if he thought that the law ought to be changed.
THE LORD CHANCELLOR
said, the House was indebted to the noble and learned Lord (Lord Cairns) for calling attention to the difficulty which, he conceived, might arise under the present Act of Parliament from a collision between the Secretary for India and his Council on questions of an important character. If there was really ground for the apprehension expressed by the noble and learned Lord it would be desirable to remove it; but the noble and learned Lord appeared to give a meaning to the words of the Act which they could not bear in any sound legal construction. If the question were brought in any way before a court of law, in construing the Act, the first thing the Court would do would be to discard any argument founded on the debates and discussions in Parliament during the passing of the Act through the Legislature. It would look at previous Acts regulating the government of India, would consider the grievances intended to be remedied by an alteration in the constitution of the government and the reason for passing the Act of 1858, and, judging in that way of the scope of the Act, would proceed to interpret its enactments. The court would find that at one time a kind of double government had been estab- 1830 lished for India—a government administered through the Board of Directors and the Board of Control. The Board of Control was entrusted with the control over the government of India by the Board of Directors; and, among other high powers committed to it, it was invested with authority to compel the Court of Directors to send out secret despatches on which the Directors had not been consulted, relating to important matters, such as peace or war. When the present Act of Parliament displaced the government of India through the Board of Directors as it had before existed, it transferred the government of India to Her Majesty, and placed it under the entire control of the Executive Government of this country. By the 3rd section of the Act all the powers of the Directors and of the Board of Control were transferred to the Secretary of State for India, and that transfer involved, of course, the power of making peace or war, which would involve serious expenditure. The first thing a court of law would say was that that was the primary scope of the Act. There was, to be sure, the restriction, "save as hereinafter provided;" but of course the court would give the largest construction to the large powers intended to be conferred and would narrow the effect of the restrictive words to the strictest legal construction. The meaning of section 41 was plain enough. It stated that no grant or appropriation of the revenues was to be made without the concurrence of a majority of the Council. The only two things pointed at by the restrictive words were a grant of money and appropriation; and to say that every direction or order given by the Secretary for India, which might and must involve an expenditure of money, was contrary to that clause would be to enlarge the restriction beyond any reasonable construction of an Act of Parliament. On the other hand, an order to the Governor General to declare war against a border State would not require the assent of the Council, though, of course, it would in its consequences involve expenditure. Surely his noble and learned Friend could not mean to say that all the powers heretofore exercised by the Board of Control could not be exercised by the Secretary of State without the consent of the majority of the Council? [Lord CAIRNS: Hear, hear!] Clause 49 con- 1831 firmed his view. What was meant was that on questions of high policy the Secretary of State might give what orders he chose. For example, if troops were on their way to China, the Secretary of State might telegraph that they were to join the forces in India, or he might telegraph that some regiments were to be marched to Lucknow. Such orders would be clearly and definitely within the powers given to the Secretary of State under the 3rd section, and would not be in the slightest degree affected by the 41st section. It might so happen that the Governor General might answer—"I have not the means of complying with this order. Give me a distinct order that I am to apply the revenues of India to the object you desire me to carry out." If such an answer were sent it would be upon the responsibility of the Governor General; and the Secretary of State might say—"I simply make the order that the emergency requires: I make no order as to the appropriation of money to carry it out." If the argument of his noble and learned Friend as to the interpretation of this clause were correct, the Secretary of State would have no power to make peace or war, or to do any other act that required secresy and despatch, without the consent of the Council—and his noble and learned Friend himself owned that that would be a monstrous provision, and upon that point they were at one. Did anyone suppose that, if that view were correct, the Legislature would have passed the clause containing such a restriction in the original Act? No one would contend that Parliament intended to do that which would be so irrational as to say that, whatever might be the emergency, the Council should be able to control the decisions of the Secretary of State. In point of fact, the intention was to give the largest powers to the Secretary of State, subject only to the provision that, with a view to prevent anything like jobs, the assent of the Council should be necessary to every grant or appropriation of money—that the Secretary of State, for instance, should not make any new loans or sanction any new railway without the consent of the Council. The meaning of the Bill, in short, was that in one way the Secretary of State should have any imaginable power, and in another, purely the actual expenditure of money, 1832 should not act without the sanction of his Council. This was the rational, statesmanlike scope of the Bill, and he did not believe that a court of law would give ear to any other interpretation of the statute. Surely, therefore, it was not wise to try to define the exact border of demarcation between the cases in which the Secretary of State could act alone and those in which he required the assent of the Council, and it would be better to leave this line to be drawn by the good sense of the Council and Secretary of State. He could not suppose that any such preposterous claim would be set up by the Council as that they were entitled to over-rule the Secretary of State on questions of high policy, and thus virtually take the government of India out of his hands. If such a provision as that were really in the Act, other provisions which it contained would be idle. For instance, there was a provision that the Secretary of State might over-ride at his discretion the opinions of the Council. The primary object of the Bill was to increase the power of the Secretary of State. But his noble and learned Friend seemed to think that Parliament had stultified itself on this question.
§ LORD LYVEDEN
said, that having been President of the Board of Control at the time when Bill No. 1 was introduced, and having prepared that Bill with Lord Palmerston's consent, he might perhaps be permitted to state what had been the intention in framing the Bill. Until he heard the noble Duke (the Duke of Argyll), who had been a Member of Lord Palmerston's Cabinet also, he had never had the slightest doubt that the intention of the Bill was to establish a check upon the Secretary of State. Lord Palmerston wished to have a Secretary of State without any Council at all; but the East India Company wanted a Council to check the Secretary of State in reference to expenditure—and at the time the general feeling was this—that the Secretary of State should not be put into such a position that he could have unlimited control over revenue. There had recently taken place the Persian War, and objection was taken to the power of the Secretary of State in such a case to declare war against Persia for European objects, and throw the charge on the revenues of India. The result 1833 was that one-half the charge of the war was borne by the Indian revenue, and one-half by the Imperial revenue as for an Imperial object. That question was rife at the time when Parliament was considering this subject, and the intention then was to establish a check upon the power of the Secretary of State over expenditure. The President of the Board of Control had theretofore acted as a check upon the East India Company, and the Council was intended to be a similar check upon the Secretary of State. The real question of importance which the noble and learned Lord (Lord Cairns) had raised was whether, there being this doubt, it would not be wise to insert a clause clearing up the doubt. He himself (Lord Lyveden) thought it high time that that important question was settled, for the satisfaction not only of the Secretary of State, but of his Council, and he saw no good reason why the noble Duke should oppose the introduction, if it could be framed, of a clause into the Bill with that object.
§ LORD CHELMSFORD
thought that no one who had heard the arguments on this occasion could hesitate to come to the conclusion that the matter was not at present clear, and that it was desirable that the doubt which existed should be cleared up. He could not agree with the noble and learned Lord upon the Woolsack that it was not desirable to define the powers of the Secretary of State; for, on the contrary, he thought that it was absolutely necessary that, considering the very extensive powers given to the Secretary of State, the amount of limitation to them should be perfectly and clearly laid down. The question brought before their Lordships was a very short and simple one. It was the question of the construction of a single short section in an Act, which section was expressed in no ambiguous terms, but in words that could be very clearly interpreted. Their Lordships should understand that this question had not been brought forward with any hostile intention either towards the Government or to the measure under discussion; the only object was that they should be able to understand the exact position of the Secretary of State for India—whether he had the absolute power that was attributed to him, or whether he was liable to be checked and controlled by his 1834 Council. It appeared to him that the interpretation of the 41st clause of the existing Act was perfectly clear, and that it did not require a lawyer to put a construction upon it. He felt quite sure that a court of law, in dealing with it, would not enter into those considerations which his noble and learned Friend on the Woolsack seemed to suppose would be relied upon in the formation of a judgment upon it. The 3rd section gave powers to the Secretary of State, but gave them "save as hereinafter provided" so that there could be no doubt that there was some qualification of the powers given by Clause 41. The clause sot forth in words, which were so clear as to be their own interpreters, that the expenditure of the revenues levied in India should be subject to the control of the Secretary of State in Council, and then came the limitation that—No grant or appropriation of any part of such revenues, or of any other property coming into the possession of the Secretary of State in Council by virtue of this Act, shall be made without the concurrence of a majority of the votes at a meeting of the Council.The meaning of the word "appropriation" in that section was quite clear—it meant the application of the revenue; and if an order were sent out by the Secretary of State for the construction, for instance, of a railroad, on which money must, of course, be expended, he could not see how such an outlay could be regarded otherwise than as coming completely within the operation of the Act. Under these circumstances it was, he maintained, most desirable that the limitation of the powers of the Secretary of State should be defined with perfect precision, while the present furnished a favourable opportunity for the purpose.
THE DUKE OF ARGYLL
said, the noble and learned Lord who had raised this question had done so in a very definite and clear manner; and he quite concurred with him in the opinion that their Lordships were asked to deal with it under circumstances of peculiar advantage, inasmuch as there was not only no dispute at the present moment, but although there might have been some differences between the Secretary of State and the Council of India during the last ten years, there had not been a single instance in which any antagonism had been brought to the point of an absolute rupture. As for himself, he 1835 felt that he was placed in a false position in seeming to attack the powers of the Council, whereas his desire was to uphold those powers. In bringing in a Bill respecting the government of India he did not propose to alter the existing law; and, in taking that course, he was but following the example of his predecessor in Office; for he had some reason to believe that, although Sir Stafford North-cote wished to settle the question more immediately before the House, he found it beset with so many difficulties of detail that he declined, in the Bill which he brought in—with, no doubt, the advice and concurrence of the noble and learned Lord—to deal with it. The present Government, having duly considered the subject, came to the conclusion that, on the whole, the decision at which Sir Stafford Northcote had arrived, was a wise one. During the ten years the existing law had been in operation the largest and most important questions connected with expenditure in India had been brought under the consideration of the Secretary of State and his Council; there had been expensive wars, and the construction of great public works, involving a great outlay of money, and charges of every sort and kind, and yet during those ten years, no hitch or difficulty had been felt by the Secretary of State or the Council with regard to their respective powers. He should not, he might add, have dreamt of mentioning the subject had not an appeal been made to him by the noble Marquess opposite (the Marquess of Salisbury), whose position went beyond that which he understood the noble and learned Lord to take up, because the noble Marquess appeared to be of opinion that the Council had the power of exercising an absolute veto in all questions involving expenditure. Now, first and foremost, came the question of peace and war—war having been the greatest cause of expenditure in India; and he did not believe that any member of the Council had ever dreamed of the power of the Council to veto any measure of the Secretary of State upon questions of that kind by the votes of a majority; and this furnished one test of the incorrectness of the interpretation which the noble Marquess had put upon the law. The noble and learned Lord opposite (Lord Cairns) had expressed his belief that the Secretary of State could not declare war 1836 without the consent of the majority of the Council. [Lord CAIRNS was understood to say that he did not withdraw his opinion.] If the noble and learned Lord gave up the application of this principle to the declaration of peace and war he gave it up altogether. [Lord. CAIRNS was understood to remark that it was not likely that the Secretary of State would order the Governor General to declare war without having consulted his Council.] Would the noble and learned Lord venture to say it was not in the power of the Imperial Government to order Lord Mayo to despatch troops to the frontier of Afghanistan, on the threat of an invasion, without consulting the Council? He maintained that such an order could be issued by the Imperial Government, and that it would be incumbent on the Government of India to obey it, while the majority of the Council at home could not disallow a single rupee of the expenditure thereby incurred. He agreed, however, with the. noble and learned Lord that, although the Imperial Government ought to be supreme, it would be the duty of any Secretary of State to take the opinion of the experienced men by whom he was surrounded. Then, as to the words of the Act, it might be contended by legal Members of that House that they should be interpreted very strictly; but he maintained that the intention of the Legislature in these words must be interpreted in consistency with other portions of the same statute and with the whole proceedings of Parliament when it was passed. Now, on referring to the Resolutions passed in the House of Commons, on which the Bill for the government of India was afterwards based, the first Resolution laid down absolutely the expediency of transferring to the responsible advisers of the Crown all the powers which formerly existed both in the Court of Directors and in the Board of Control; and the second Resolution went on to say that it was for assisting the Secretary of State in his duties that the Council was appointed. Now, he wished to point out that the effect of the Bill as it originally stood, and as it was drawn up by Lord Derby's Government, was to place at the absolute disposal of the Secretary of State the whole revenues of India, both in India and England, without any restraint or control whatever. His right hon. Friend the late Sir James 1837 Graham immediately hit the blot, and raised an objection on that point. His right hon. Friend, however, did not complain that the Bill did not restrain the Secretary of State in such great matters as peace and war, but remarked that the measure would give him the uncontrolled power of pensioning any number of persons both in India and England. His noble Friend (Lord Lyveden), who was then in the House of Commons, said he was sure the Committee would think there ought to be some check in this respect on the Secretary for India, who would otherwise possess the most enormous power ever given to any Minister. The clause as it stood (he added) would enable the Secretary of State to distribute the revenues of India among his own political creatures. That remark of Sir James Graham was perfectly correct. Under the former system the Secretary of the Board of Control could not spend a single shilling in England without the consent of the Court of Directors; and it was to obviate that objection that the 41st clause was brought in—and in his opinion most properly—by Lord Stanley. It would not have been right, and it would not be right now, to place an uncontrolled power in any Secretary of State, or in any Government, of disposing of £50,000,000 of revenue. Before the Secretary of State disposed by direct appropriations of such an enormous revenue he ought to consult his Council, and to obtain at least eight votes out of the fifteen. That was the aim and object of all the objections made to the Bill as it originally stood, and it was in order to obviate these objections that the new clause was brought in. If it were the intention of the Government of Lord Derby to go beyond that, and to prevent the Secretary of State and Parliament from deciding the great question of peace or war, they committed a great blunder in acting as they did. With regard to the word "appropriation," used in the Act, he was willing to put the most literal interpretation upon it; but he would ask whether, if it was the intention of Parliament to limit the power of the Secretary of State in the way now contended for by the noble and learned Lord, anything could have been easier than for them to say so, and enact a provision that it should not be lawful for the Secretary of State to order any service in India that would cost money 1838 without the consent of his Council. In point of fact, however, they did nothing of the kind. But the noble and learned Lord opposite, and others, might, perhaps ask—"If the Council of India had not this power, what could it veto in regard to expenditure?" He (the Duke of Argyll) believed it had powers very grave and important, and he could mention two or three instances to illustrate the range of these duties, and to show what, in his opinion, was the meaning and intention of Parliament. Take the case of the subsidy recently granted to the Ameer of Cabul. That had a great political object. He apprehended that under the Act of Parliament, as it stood, it would not have been competent to Sir Stafford Northcote to order that appropriation without the consent of his Council; but, as it happened, the order was not given by the Home Government; his noble Friend (Lord Lawrence) gave the subsidy on his own responsibility, and, the money having been paid, it was not in the power of the Council without the consent of the Secretary of State to veto that act. Then there was another case that showed the important and valuable power which, according to his interpretation of the Act, was left in the hands of the Council. The other day his noble Friend (Lord Lawrence) adopted a measure involving expenditure and an appropriation of money. He desired to bring natives of India to this country in order that they might enter the Civil Service under more favourable conditions than hitherto. Accordingly his noble Friend proposed that scholarships of £200 or £300 a year should be given to certain young men in India, and that the gainers of those scholarships should be brought over hero to undergo the competitive examination for the Civil Service. That involved questions of expenditure and of principle. It came before the Council of India, where the principle of the appropriation underwent much discussion; but it would not have been in his power nor in the power of Sir Stafford Northcote to order the Government of India to appropriate moneys for such a purpose. The noble and learned Lord opposite (Lord Cairns) had carefully avoided all reference to military expenditure, and he would therefore take as a further illustration a case respecting great public works. The public works of India, such as the 1839 great Ganges Canal and the railways now being constructed, involved the payment of large sums, which could not be obtained from the ordinary resources of India—great loans must be raised for the purpose of defraying that expenditure; and, under the existing law again, he apprehended it would not be competent for the Secretary of State to saddle the revenues of India with that expenditure, unless he obtained the consent of a majority of the Council. This was a most important check, which, if his interpretation of the terms of the Act was correct, was left in the hands of the Council. He would mention another case by way of illustration. Some years ago it was determined to abolish the local navy in India. Many members of the Council thought at the time, and he believed still thought, that that was an unwise measure. At this moment he was in communication with the Admiralty for the purpose of adjusting the cost of particular squadrons which might be set aside for the service of the Indian Government—one, for example, in the Persian Gulf. Now, he said, it would be a most monstrous proposition to enable a member of any Cabinet to saddle the revenues of India with an unlimited expenditure for Imperial purposes without bringing it before his Council, and having the support of a majority of that Council in regard to it. That was another case in point. He said it was perfectly right, before the Secretary of State saddled the Government of India with any amount of expenditure for such purposes as those, that he should have to go to the eminent and experienced men by whom he was surrounded and say to them—"Do you think this a purpose which is fit to be charged on the India revenue?" And that if the majority of the Council answered "No," the only recourse the Secretary of State should have would be to appeal to the Government and to Parliament, with whom the final decision in such a case must unquestionably lie. He thought he had shown, then, that the interpretation he put on the words of the Act of Parliament was consistent with the whole stream of statutes since the days of Mr. Pitt—consistent with the objections which were made to the Bill of 1858, as it was brought in by Lord Derby's Government; consistent with 1840 the purpose that that Government avowed of obviating those objections; consistent, finally, with leaving in the hands of the Indian Council a real and most important power in financial matters. And he for one, as at present advised, was not disposed to ask Parliament to lower the authority or diminish the power which that Council had in these matters. He must entreat their Lordships to remember that they must look at these things to a certain extent as they were viewed in India; and he believed that nothing would be more unpopular in India than to lay clown the doctrine that the Secretary of State had the sole power and authority, without any check—except the check of Parliament—which must necessarily be very imperfect; because the details of Indian administration were not noticed in Parliament, although they might involve millions and millions of money. He said it was not expedient in the eyes of the people of India that the power should exist of saddling them with any amount of expenditure on the sole authority of one Member of the Government, without some assurance that the matter should be fully and fairly considered by men thoroughly acquainted with the affairs of India—men who had the interests of that country sincerely at heart, and whose duty it was to defend those interests. On these grounds he was not prepared to jump at the proposition of the noble and learned Lord opposite, which imposed on the Government the duty of changing the law in respect to a point as to which no proved inconvenience had been shown. [Lord CAIRNS made a remark which was not heard.] Was he really to understand from the noble and learned Lord that Sir Stafford Northcote believed that he and the Government of the Queen could not in the extremest emergency declare war or move the troops to the frontier without consent of the Council? [Lord CAIRNS said, that was not the question.] He had asked the noble and learned Lord if he applied his doctrine to the ease of peace or war; and being driven logically in a corner, he said—"Yes, I do." And now, when asked whether the late Government would not have been able to order the Governor-General to move the troops to the of Affghanistan, even to resist a Russian frontier invasion, without the assent of a majority of the Council, the noble 1841 and learned Lord said that was not the question.
§ LORD CAIRNS
was understood to say his opinion certainly was that the Secretary of State could not, oven in the event of an invasion, order the movement of troops or do any act that would cost money, without the consent of his Council.
THE DUKE OF ARGYLL
said, until he found that doctrine actually laid down in a judicial manner he declined to accept it. An observation had once fallen from the noble Marquess (the Marquess of Salisbury) as to the solitude of the Secretary of State in regard to the administration of Indian affairs. That observation was perfectly correct. All the other great Departments of the Government were so fully occupied that, in respect to the details of Indian administration, the Secretary of State could not practically be assisted by them, but was obliged to rely upon his Council, and it was a matter of the first importance that the position of the Council should be a high and a strong one. He did not wish its power to be so extensive as the noble and learned Lord seemed to think it was; but as applicable to the important cases to which he believed it did extend, it was a power which he was not pre-pared to see taken away or diminished.
§ THE MARQUESS OF SALISBURY
thought the discussion in which they were engaged partook somewhat of an Irish character. They were disputing whether there was a dispute, and doubting whether there was a doubt. He confessed that, after listening to the speeches of the two Cabinet Ministers, he did not see that the difficulties originally suggested by Ms noble and learned Friend (Lord Cairns) had been in any degree removed. His own belief had been that the Secretary of State for India had no power to pledge the Government of India to the expenditure of a farthing without the sanction of a majority of his Council. He did not mean to say that j he could not give orders for particular services to be performed; but that, without the assent of a majority of his Council, he could not pledge the Indian Government to pay for them. His position was precisely analogous to that of the Crown at home—the Crown had the right to declare war, but the supplies must be granted by the House of Commons. He confessed that he was ab- 1842 solutely unable to draw from what had fallen from the noble and learned Lord on the Woolsack what the law of the the matter was. That noble and learned Lord should remember that it was not an acute lawyer but an ordinary layman who had to discharge the functions of Secretary of State, and that the law ought to be made as dear as possible for his guidance As far as he could understand the noble and learned Lord on the Woolsack, the law amounted to this this—that the Secretary of State might order troops to go to the frontier, which would cost money, but that he might not order the construction of a railway, which would also cost money; and the distinction which he understood the noble and learned Lord to draw between the two cases was that the one involved a matter of high policy and the other did not. [The LORD CHANCELLOR said the noble Marquess had entirely misunderstood his meaning.] Surely it was some proof that the state of the law was doubtful when so distinguished a lawyer as the noble and learned Lord could not explain to the comprehension of an ordinary layman like himself what the law to be carried out really was. The view of the noble Duke (the Duke of Argyll) was plain enough, although strange—namely, that the Secretary of State could not spend money in certain cases without the sanction of his Council, but that the Governor General could. That might be the state of the law; but if so, it was open to this difficulty—that under the mask of the Governor General the Secretary of State might walk round the Act of Parliament. He could not conceive that it was the idea of the noble Duke that the Governor General's independent powers were to be put forward whenever the Secretary of State wished to act without the concurrence of his Council. He was not there, however, to enforce his own interpretation of the law—he only desired to add his own opinion, to that of others who had spoken, that the present state of things was not such as to make a declaratory Act un-advisable. He had risen chiefly to add his entreaties to those already addressed to the noble Duke to consider whether the present state of things was not such as to make some declaratory enactment desirable. He did not ask him to change the law; he quite concurred in the absolute necessity of some control and a 1843 great deal of advice to support the Secretary of State in the difficult duties which he had to perform; but, above all, it was imperatively necessary, where such vast interests were at stake and where so many jealousies might be aroused, that the law should be unmistakeably clear. And when the noble Duke told them there was no doubt about the law, he maintained that about the doubtfulness of the law there could be no doubt whatever When the Lord Chancellor said a thing was black and two ex-Chancellors said it was white, there must certainly be some doubt about the law, and all the eloquence of the noble Duke would not persuade him to the contrary. If the Secretary for India should order an expenditure which the statute forbade, his impression was that the Secretary for India would be liable for that expenditure; and the noble Duke would hardly feel comfortable if he had made two or three mistakes of that kind, and had to pay for them. It was the greatest mistake not to provide proper shelter for oneself because at present there was fine weather. The present Council of India was appointed under unusual circumstances, its Members were selected with great care, and they were all men of very great discretion and ability. But could their Lordships be certain that the same discretion would be always exercised, and that the same harmony which had existed hitherto would continue to prevail hereafter? He submitted that the present state of the law was not satisfactory, and all he asked was to have some words introduced of a declaratory kind, which would remove all difficulty on the subject.
§ VISCOUNT HALIFAX
said, that it was with great regret he had heard this question raised. No practical difficulty had ever arisen. During the six years that he had the honour of being Secretary for India no difficulty of the kind had occurred. He never had proposed anything of consequence to which his Council objected, nor did he remember that there was ever a difference between himself and the great majority of the Council in any matter whatever involving expenditure. He confessed, therefore, that his attention had never been directed to the precise meaning of the words of the statute until the noble Marquess opposite raised the question. He had taken 1844 part, as his noble Friend (the Duke of Argyll) had stated, in the debate in the House of Commons in which the clause originated, and his noble Friend had correctly quoted what he then said with respect to salaries and Indian expenditure. The Bill of the Government of Lord Derby was introduced without any check on the power of the Secretary of State to order expenditure; but almost all the House of Commons were perfectly agreed that there should be some limit on the power of the Secretary of State. His noble Friend who sat near him (Lord Lyveden) very truly said in that debate that, if the Secretary for India were without any check at all, it would be giving him the most enormous power which was ever given to a Minister of the Crown, and many Members protested most strongly against such an unlimited power being given. Sir George Lewis, Sir James Graham, and Sir Francis Baring all pointed out that whatever check existed under the old law, as framed by Mr. Pitt, was swept away entirely by the Bill of the noble Lord (Lord Stanley). The noble and learned Lord had said that Lord Palmerston's Bill proposed that there should be no increase of expenditure at all without the consent of four members of the Council, but that number, with the President, constituted, according to his Bill, a majority of the Council. The words of his noble Friend's Bill were "no grant of money," and the words of the present Act were "no grant or appropriation." It was from the interpretation of that word "appropriation" that the whole difficulty had arisen. There was no question that the Secretary of State could not order without the consent of the majority of his Council any grant of money, subsidy, or anything of that kind; but he did not conceive that he was prohibited by the clause from ordering services which would entail expense. That would limit the power of the Secretary of State beyond what was desirable. Of course there must be a limit somewhere; but he thought it would be practically impossible to define, with the precision required in Acts of Parliament, what services might, and what might not, be ordered without the sanction of a majority of the members of Council present. He would say, their Lordships would find it uncommonly difficult to draw such a strict definition 1845 as to say what the Secretary for India might and what he might not order. He believed the noble and learned Lord opposite, acute and ingenious as he was, would find it very difficult to draw up such a clause that not only an acute lawyer but, as the noble Marquess had said, an ordinary layman might understand what things might be done by the Secretary for India on the one side, and what should be subject to the check of the Council on the other. There must be some exercise of common sense and common discretion in all these cases. Independent powers could not be exercised to their extreme limit. Everybody knew the powers of the two Houses of Parliament; and yet if they were exerted to the utmost, or even if the rights of individual. Members were exercised to the utmost, it would be impossible that Public Business could be carried on. Was it likely that such men as constituted the Council—and he did not believe that they would find any difficulty hereafter in finding men of very much the same character—would be likely without reason or any good cause to oppose the Secretary of State in anything he might think desirable, or that the Secretary of State would urge anything to which they might entertain serious objection. Was it likely that men who had administered districts as large as half-a-dozen counties together would do anything which the Secretary of State might think unreasonable? He confessed he entertained no such fear. As he had said before, he was as strongly in favour as anyone could be of maintaining the position of the Council in all respects, and he quite agreed with those who held that if there was to be any check upon the Secretary of State it must be in the Council. He agreed with the course Sir Stafford Northcote had taken, and which had been followed by the noble Duke in the present Bill, and he thought rightly. Whatever Sir Stafford Northcote's opinion was as to the powers of the Council or the Secretary of State, he did not think it expedient to bring in a Bill to alter the clause as it stood. It was immaterial to his argument whether Sir Stafford Northcote thought the Council or the Secretary of State supreme, for at all events he thought it expedient to leave the clause unchanged. That was the course which the noble Duke had also taken, and which he (Lord 1846 Halifax) thought was the vise and proper course.
§ Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.