THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES y > N HtUDI MENTALS; BEING R§]IT^ ON The Principles of Government — The Government of England — The East India Company — The Court of Directors — The Board of Control — The System of Government in India ; and on Jurisprudence or the Principles of Administrative Justice-. ADDRESSED TO THE NATIVES OF INDIA. BY GEORGE ^NORTON, Esq. c £JL : , . J SEffiA3BSl£s,So $t M ADR A S : J. B. I'll A 110 AIL 184 1. AJlia.vJiu:* PUESS—J. hall, fhixteh, Z VI P> ■ TO THE PEOPLE OF INDIA THIS WORK IS DEDICATED AND PRESENTED BY GEORGE NORTON, 1351861 CONTENTS. ♦ Pages PRELIMINARY ADDRESS 1 Discourse I. — On the Principles of Government. SECTION L— Of the quality and usefulness of the Science of Political Government 25 II. — Of the Origin of Political Government 27 III.— Of the Objects of Political Government 29 IV. — Of the necessity of a settled Plan of Power— or a Constitution 32^ V.— Of the Marks and Characteristics of a well-con- stituted Government. First ; attention due to the habits, feelings, and manners of the People 37 VI. — The same subject continued. Second ; Changes should not be sudden 40 VIL— The same subject continued. Third ; the Exter- nal and Natural condition of a countrj', and of its Inhabitants, to be observed 43 VIII. — The same subject continued. Fourth ; of the Share which the People should have in the Administration of the Government 46 IX. — The same subject continued. Fourth ; of the Share of the People in the government exer- cised by a System of Representation 52 X. — Reflections on the Marks and Characteristics of good government which have been discussed ; and on the Political condition of India GO XI. — Of the evils of Arbitrary Government (j 1 Discourse II.— On the Government of England. SECTION L— Of the Nature and Origin of the English Con- stitution | yj . ■ II. — Of the Supreme or Legislative authority of the English Government. 75 U CONTENTS. Pages SECTION III.— Of the Queen in her Legislative capacity 77 IV.— Of the House ofLords 82 V. — Of the House of Commons 88 VI.— Of the mode of enacting Laws, or Statutes 100 VII.— Of the Executive Branch of the English Go- vernment..... 106 Discourse III. — Of the East India Company. SECTION I.— Introductory Observations 119 II.— Of the meaning of the term Company; and of the Nature and Objects of such an Associa- tion :. 123 III.— Of the Origin and Formation of the East India Company 123 IV.— Of the Progress of the East India Company, until they became a Political Power 133 V.— Survey of the Political Progress and Condition of the Native States of India, previous to the Conquests of the East India Company 140 VI. — Of the Progressive Conquests of European Na- tions in India, and the effects 148 VII. — Of the Means and Resources of the East India Company for the conquest of India 152 VIII. — Of the Component Members of the East India Company — the Proprietors of Stock 16} Discourse IV.— Of the Court of Directors, and Board of Control. SECTION I.— Of the Qualifications of Individual Directors.... 1G9 II.— Of the course by which the Directors act, as a Court , 174 HI. — Of the Powers of the Court of Directors. 179 IV.— Of the Board of Control 192 DiscocnsE V. — Of the Government in India. SECTION I,— Preliminary Observations on the subject of this Discourse 199 II. — History of the formation and course of the* Eng- lish Government in India, previous to the fiis-t . regulating Act of 1773 204 CONTENTS. Ill Pages SECTION III.— Of the Progress of the Eng.iSh Governments of India, from the year 1773 until the passing of the last Charter Act of 1833 21 IV. — Of the manner in which the Governments of In- dia are constituted, and of what members these Governments are composed.. 220 V. — Of the course and method by which the Govern- ments of India exercise their Functions 226 VI,_ Of the Powers exercised by the Governments of India: and, first, of the Superintending and Controlling powers of the SupremeGovernment 231 VII.— The same subject continued : History and na- ture of the Legislative powers of the Supreme Government . ••• 236 VIII.— The same subject continued : of other peculiar powers of the Supreme Government 247 IX.— The same subject continued: of the Powers ex- ercised by the Subordinate Governments 249 X. — Reflections on the quality of the system of Go- vernment in India; and notices of some de- fects , 256 Discourse VI. — On Jurisprudence : or the principles of Administrative Justice. SECTION I.— Of the quality of Justice as a Virtue, and of the quality of the Science of Administrative Jus- tice 271 II.— Of the nature and object of human laws for the Administration of Justice 276 III.— Of the origin and nature of Property 279 IV. — Of the transfer of and succession to Property... 282 V. — Of the security of the Person 2S VI — That the laws on which Administrative Justice is founded should be certain and clear 285 VII. — In what manner Laws should specify and define righta 290 VIII. — Of the Civil Code — for the restoration of Rights, and the redress of Injuries , 292 IV C O N T K K T S. < Pages SECTION IX.— Of the Criminal Code for the punishment of Injuries 295 X. — That revenge is not a just principle or object of laws against Crime 298 XI. — The legitimate object of human Punishment .... 302 XII. — Of the Code of Judicial Procedure, and its nature and objects 30G XIII. —Of the evils arising from a defective method of Judicial Procedure 312 XIV. — That the laws of a country ought to depend on certain general principles, and be arranged ac- cording to some system — the knowledge ©f which forms a Science 316 XV. — Of the quality of the English system of Law 320 XVI. — Of the causes of Litigation, independently of tlie quality of Laws 325 XVII. — Of the expediency of reducing the laws of a country to a systematic Code 327 ADVERTISEMENT I T has appeared requisite to offer to the English reader some explanation of the nature and object of the present work. The substance of the ensuing Discourses formed part of a series of Lectures delivered in years 1833 and 1834, in the College Hall of Madras, to an audience chiefly compos- ed of Natives in a respectable class of life. These Lectures weve delivered from Notes ; and, with the exception of the Preliminary address, were couched in the most familiar style, both in language and manner. Every effort was resorted to for the purpose of keepin g alive the attention of a Native audience, and facilitating their comprehension — as, by local and personal illustration, and even occasionally by colloquial discussion. In reducing the multifarious materials of these Lectures into a connected work, of course such a character of com- position could not be adopted. Nevertheless, to warrant any reasonable hope of attracting the perusal, or fixing the attention, of a Native reader, a peculiar style and a pecu- liar treatment of the subjects had to be attempted. The Author who would write well or agreeably to an English reader, upon the topics treated of in this work, must write as addressing those who already know much, and have thought much. He who seeks to impart information of this nature efficiently, even to the most enlightened portion of the Na- tive Public who understand English, must address himself Jj ADVERTISEMENT. to those who know little, and have thought less upon these subjects. He has td recollect that, not only are many of the expressions he is constrained to use new to the Native reader, as well as peculiarly comprehensive and abstract—* but that his ideas, and his sentiments, and his narrative statements are also new to him. They are often alien alto- gether to such a reader's preconceptions, and even to his personal feelings. It is seldom that allusion is permissible — explanation is necessary at every step. Literary graces must be freely sacrificed— literary faults must sometimes be leaned to. These considerations have constantly operated on the Author's mind ; and, indeed, have occasioned his main difficulties in composition. His chief study has been to write suitably to Native comprehension — he has at the same time felt a desire to elevate their thoughts and feelings. He has likewise kept in view the contingency of some at- tempt at an exposition of the subject-matter of these trea- tises through the medium of the Native languages. Actu- ated by th<'se impressions he has from time to time commu- nicated portions of his manuscript to intelligent Natives, and has been in some degree guided and encouraged by their approbation. The Author has thought it due to himself to offer these explanations to the English reader upon the style and quality of the ensuing treatises. He is prepared to be criticised by such without favour, but he is unwilling to be judged without fairness. It may be surmised, perhaps, in reference to the above observations, that this publication is at least premature — that it neither deserves, nor is calculated, to be popular ; and therefore it is not likely to be useful. This is so novel an undertaking that the Author indulges no speculation as ADVERTISEMENT. Jjj to its popularity with any classes of the Native public. But he is nevertheless buoyed up by the J hope of its becom- ing useful, even though it may never become popular. Since the time when the Lectures above alluded to were delivered, a very extraordinary change has become notorious in the sentiments of Native Society throughout India. An at- tachment to the British rule has gradually extended, and an admiration of its institutions. A spirit of social inter* course has begun to prevail, and a desire of amalgamation as fellow-subjects of one Empire. But, above all, a convic- tion of the advantages of English education, and an earnest desire to promote it, and thereby to gain the only true quali- fications for office and station, in the state and in society, has spread widely among the superior classes of the Native population. This change of feeling can no longer be disput- ed nor despised. Seventy thousand Natives of respectabili- ty entreating by one single petition the patronage of Go- vernment to the cause of education is a sufficient proof at least that such a spirit is awakened. If, indeed, the dif- fusion of knowledge and the increase of scholastic instituti- ons has hardly kept pace with the wants and wishes of the people, yet the care of the Indian Governments and the be- nevolence of societies and of individuls have provided a whole rising generation of Native students in English litera- ture. A Native public so directing their attention to these noble and national objects ; and arising generation so vers- ed in the more useful departments of English learning, can hardly devote their inquiries to topics of more true interest to themselves and to their country, than such as are treated of in the ensuing pages. If there existed any English works which compendiously and suitably expounded the principles of Government and of law, and the fundamental constitution of the English and Indian Governments, to which enlightened Natives might ADVERTISEMENT. IV resort with an assurance of easy and adequate information, the following work would perhaps neither merit nor receive any notice. But, if it would be vain to point to English lite- rature for such purposes, the attempt in some degree to sup- ply such a deficiency is not a misguided one. It may serve to direct Native thought into new and productive channels- it may serve thereby to strengthen the union of the Native people under the British rule. It may at least prepare the way for the more successful labours of those who may bring that interrupted leisure, and apply that continuous thought, to their task, which, however necessary, the avocations of the author of these Essays would not permit. It may be objected to the following Discourses that, as they contain little that has not been better written before by accredited authors, it would have been fair, and useful to the studiou.s inquirer, to have quoted copiously and distinct- ly the authority from which most of the positions appear to be taken. But the truth is that not much has been borrow- ed from preceding authors. What is not new has been at least newly treated of; and very little consultation has been given to the great writers on politics, moral philosophy, and jurisprudence, until after the task of composition was closed. The work has, indeed, been corrected, and some- times adorned, on subsequent references to such authorities —and the learned reader (if any should be at the pains to take up this Volume) will be reminded, occasionally as he proceeds, of Bacon, of Locke, of Montesquieu, of Hume, of Mill, of Aristotle, and of others. But he will see, at the same time, that there is not room for frequent reference to such authorities, in consequence of the manner in which their common subjects have been worked up in these treatis- es. Some positions, it is believed, are altogether new— as, for instance, what have been advanced as the true distin- guishing principles of the Civil and Criminal Codes. The most frequent resemblance may perhaps be found between ADVERTISEMENT. ^ some portions of (his work and some portions of Bodin's* Republic, and of Paley's Moral and Political Philosophy — and yet not a line of either of those treatises was ever read by the Author till after these Discourses had been written, nor has a line been since altered in consequence of such perusal. He was, however, forcibly struck with the following obser- vation in the preface of the latter writer ; which observa- tion he adopts for himself: ff My method of writing has F THE OBJECTS OF POLITICAL GOVERNMENT. is in consideration of the just performance of those duties — so directed to these final objects of a well constituted government— that the emoluments and the honors of the magistracy are conferred. Thus we may gain an intelligent view of the whole scope and aim of political authority : for we must acknowledge that such is the best government which best ensures the happiness of the people ; we can agree in the conception of what constitutes national happiness— namely, the perfect enjoy- ment of property, and security from personal wrong — and we are prepared to understand whence these sources and constituents of national happiness are supplied and upheld, namely, from the just performance of the assigned duties of rulers and their officers. The prosperity and strength of a nation does but little depend on a fertile soil, or the bounties of nature — inasmuch as the history of the world has proved to us that the most fruitful parts of the earth have often become deserts through the foreign invasions they have continually invited, or through internal decays ; while great nations have flourished in those parts to which nature has denied almost every thing. But we must look for strength, and wealth, and internal peace, in those na- tions, where a settled government, and just, equal, and well administered laws have place, and in which every citizen is ready in his vocation to fulfil his duty to the State. Observe, therefore, that supreme rulers, and all who bear authority under them, have but one just origin, and should have but one just object — namely, the good of the people. And this, indeed, is so evident a truth, that I might have spared to state it, did not the history of this country and of the surrounding Asiatic nations develope little else but one long continued violation of that plain maxim. It is fit that the people of India should know, and reflect on the evil, that the labour of multitudes in these countries has OF THE OBJECTS. Or POLITICAL GOVERNMENT. 3]^ been for ages expended in the supporting the pageantry, the idle indigencies, and the mischievous vices of such rulers, and their families and their favourites, whose only arts of government have been how best to secure the fruits of their people's toil for their oivn private purposes. Monarchs who thus act, and those who would uphold them in their system of dominion, can never have reason or jus- tice on their side ; unless there be reason in supposing governments to be established for the aggrandizement of one individual, or of one family, or one set of men, and not for the safety and welfare of all. But it behoves those who would think justly of the quality of any system of government, to inquire if there be any who, out of the labour of the people, appropriate wealth which has never been earned by their own or their ancestor's exertions, and receive it for the purpose of maintaining the magnificence of royalty, and the rank and honors of magistracy, with- out any corresponding duties whatever assigned, or ade- quately performed for the benefit of that country which supports them. If such there be, it will be well to consider them as leeches of the Common-wealth, who drain its blood but for waste. None can less deserve to be members of it than 6uch as, having no concern whatever for the public, seek from the public toil to gratify but tlieir own private interests. The world unwillingly contributes to the maintenance of men so utterly empty of desert. SECTION IV. Of the necessity of a settled Plan of Power — or a Constitution. It is next to be shewn that it is of the very essence of Political Government that its plan or scheme of power — or what the English term the constitution of government — should be fixed ; and that its method of exercise ^should be by the course of laws. Without this there can be no certainty of property, or security of person ; which we have seen to be only purposes of government. Nor in- deed, can property or personal safety be said to exist at all, when the power to which we must necessarily submit is constantly liable to change, and when the exercise of uncon- trollable authority is restrained by no rules. It is an eternal truth that every man is by nature disposed to abuse that power which depends solely on his will, and that his abuse of it will extend up to very checks he may feel to be imposed against such abuse. But, it may be said, have there not been great states — powerful in relation to their neighbours — peaceful and pros- perous in themselves — who have been governed by the ab- solute authority of even one man ? And do we not know of such states thus governed even at this day ? This is a point I may do well to explain ; for it will be found, nevertheless, that the maxims I have laid down are just. It is true that great nations have arisen, and for a while have flourished, or appeared so to do, under no other rule of government than what depended on the arbitrary will of one man. But observe — first, that those nations which have been most famous in history for the power they have attained under one, or some few successive leaders, have OF THE NECESSITY OF A SETTLED PLAN OF TOWER, 33 been also the most conspicuous for their oppression of their conquered subjects — and among such , unhappy people, who have thus been reduced to hold their lives and their property at the mere discretion of their oppressors, Poli- tical Government, in its true sense of a fit exercise of power towards the just object of the public happi- ness, cannot be said to exist. Moreover, the original followers or subjects over whom such absolute monarchs have gained and put in force a pure arbitrary control, are far from the enjoying internal peace or security, even among themselves : inasmuch as it will be found that all the wealth and luxuries of life fall to the share of the monarch himself and of his favorites; who, while they devour those who are beneath them, tremble daily at the evils with which their superior may in a moment visit them ; and inasmuch as the infernal strength of the people, as an independent na- tion so governed, arises from the promptitude with which every individual sacrifices each wish and pleasure, and sub- mits all his very faculties to the ordering of his prince. And, secondly, observe— that power of this arbitrary nature — a scourge to surrounding nations, and the unfailing source of much misery, and more discontent, to those subjected to it— can never last long. The struggles of ambitious men, which no regular laws restrain, and the vengeance of the oppressed, which soon or late becomes too strong for the fear of any consequences, unite to produce internal convul- sions thvf ughout the state, and rebellions also from with- out. The country soon becomes an ever-changing scene of wrong ; and usually, in the end, surrenders itself either to a better government or to a more powerful people. Such is the fate, and such the inevitable result, of arbi- trary power, direr' ed by no rule, and exercised purely in subserviency to tlie human passions. But it must be allow- ed that the form or quality of government, known by the term of absolute monarchy, has not always exhibited the.-e 34 °P THE NECESSITY OF A SETTLED PLAN OF POWER. characteristics. It has sometimes happened that the union of mental talent, and a benevolent disposition towards mankind, has combined to establish fiimly, and to govern prosperously, an extensive and powerful State. 1 here have been also instances in which under the same supreme arbi- trary authority of one man, such established states have been happily ruled, although much of that talent, and even of that disposition, has been wanting. But in these cases, it "will be found, upon scrupulous examination, that one of these two solutions offer. Either the qualify of the monarch is such that the course of his government is as surely di- rected towards the well-being of the state and the hajppiness of his people, as if it was directed by fixed laws — a rare occurrence, and so rare that it can scarce be quoted except from fabulous story — or that such absolute monarch is con- tent to govern by fixed laws already settled, or newly enact- ed by such an appointed course as may best ensure their wisdom and efficiency. In fact, it is in proportion as great and good princes are observed to resign the exercise of pow- er according to the dictates of the human will, and to sub- mit to those checks upon its abuse which either fixed laws themselves impose, or prudent and respected counsellors ad- minister, that their subjects can be considered as enjoying the blessings of political government. It may be admitted, therefore, that absolute monarchies may exist, without implying the absence or utter dissolution of any systematic plan of government whatever — although, if such a course of exercising power was in reality followed out in 'practice, so as to exhibit in all acts of authority nothing more than the measures suggested by the pure arbi- trary and unchecked will of one or more individuals, such an exercise of power would necessarily end in confounding all notions of right and wrong, apd in a violation of all the essential qualities of political government. And, indeed, confined as the use of absolute power really is (with such exceptions I shall hereafter notice) in practice, by such re- OF THE NECESSITY OF A SETTLED PLAN OF POWEE. 35 strain ts as laws and a due respect to the sense of the community imposes, that is a form of government which is not altogether without some advantages. For it must be confessed that it is a merit in any scheme of government that it should be beet calculated to ensure promptness in the resolving upon measures, and vigour in working them out — a merit which is conspicuous in governments under absolute monarchs. So powerful are these considerations, that some philosophers, not sufficiently weighing the true principles of government, and in what consists that public happiness which depends on those principles, have been led to affirm, that no scheme of government can so thoroughly accomplish the good of a people, and uphold their national strength, as the absolute will of a wise, and virtuous, and benevolent Prince. Rut, even if this could be granted, and if we could suppose that under the form of absolute monarchy such in- stances of an union of great and good faculties were by no means rare — if we could suppose that the appetite for an undue share of the enjoyments of life in such princes and their obedient ministers would submit to the dictates of reason and of justice, or if we could hope that such would be satiat- ed with wealth and the power by which it was to be gained — yet this form of government must ever manifest counter- vailing defects. There never could be any certainty as to the permanence of these dispositions, either in such riders themselves, or in their successors. The established method, of governing might at any moment be changed. The laws themselves have existence and operation frail as the human breath. Those who shall consult the page of history wil* read of many great nations rising to eminence under the guidance of some powerful mind, and prospering for a time — but for a time only. A great conqueror collects an im- mense concourse under his banners, who over run wide countries, and establish wealthy empires, and such empires 35 OF THE NECESSITY OF A SETTLED PLAN OF POWEK. are perhaps well governed for a season. But as soon as the founder is no more, it usually has happened that his govern- ment has fallen with him. There being no settled plan of power, no fixed rule for the guidance of his successors — such governuients are not calculated to stand the test of time; but are necessar ly subject to accidents, bringing in their train confusion, anarchy, and civil wars. And in these respects there is no difference whether a nation be reduced to subjection to the will of one arbitrary monarch, or to the absolute power of many or of few who shall wield the full authorities of the state. For it is very possible that a large delegated assembly, or that a few who may have been born to, or have attained, supreme dominion in a state, may resolve to govern by no regulated plan, and may disregard all laws made for the protection of property or of the person. Whether they will govern with- out law, or whether the people shall find a sure refuge aqainst wrong, and a plain guidance in their mutual affairs with each other, in their laws and the administration of them, must depend on whether such a scheme or plan for the exer- cise of the power of the state exists, as may more or less prevent the gratification of the mere will — for, in the ab- sence of any such checks, human nature will impel the possessors of power, whether many or few, to accumulate at the expence of those who cannot resist them an undue share of the enjoyments of life, until all the just ends of political government are openly abandoned. Thus, under whatever form or course of government a na- tion may be ruled, we must look to find some fixed systematic scheme or plan for the conduct of it, and to see that this scheme itself, and the method of exercising authority under it, should be founded on laws — before we can agree that the essential objects of political government are arrived at. SECTION V. Of the Marks and Characteristics of a well- constituted Government. First ; attention due to the Habits, Feelings, and Manners of the People. Contemplating, then, political government as the means to a certain end— as a human device, through a certain settled scheme and through a course of prescribed laws, for accomplishing the social happiness of a people— let us next examine some of those marks, or characteristics, hy which we may, perhaps, hest judge of its being adapted to its object. The history of the world — exemplifying the progress of man in obeying the dictates of his nature, by first congregating into rude societies scarce held together by force of any law or compact, and afterwards by extending their social unions into populous nations, occupying fixed habitations — is a his- tory in great measure of habits, feelings, and manners among the human race. These habits, feelings, and manners have grown up, not according to any st:t of rules and principles laid down according to reason and upon deliberation, but by force of mere circumstances and accident. Every age and nation has its peculiar code of morals and of manners ; and the qualities of government are more dependant on them, than they on the force of authority or laws. Jt requires but a little reflection to perceive such to be the necessary result of the progress of mankind from rude barbarism, or savage life, to civilization ; and we shall presently advert to some of these accidental and external circumstances. But it is a well known saying, that habit is a second nature — and habits, therefore, however they may have arisen, will, like 3g CHARACTERISTICS OF A WELL-CONSTITUTED GOVERNMENT. the propensities of human nature itself, imperatively in- fluence all plans and contrivances by which men seek to accomplish that which they conceive most to their interest and well being ; and, amongst others, every system which may have been gradually built up of political government. But, if such systems of government have thus become con- nected with habits, and the quality of these habits has de- pended on accidental circumstances, it must follow that such systems or modes of government must be as various as the several nations who live under any settled rules of power. It must also follow that after these habits have grown up, and are interwoven as it were, and identified, with the feelings, or even the prejudices, of a people, and thus become a second nature, any violation of them would be a counterac- tion of nature itself, and a cause of distress and discontent. As, therefore, we see that diversities of government must arise, and the modes of rule must have become consonant to the various qualities, and peculiarities of feeling, of vari- ous people — so it is a just principle of government that its scheme and course of operation should continue to res- pect such habits as are found to prevail. It must be recol- lected that it was not in the maturity, but in the infancy, of civilization that governments took their rise ; and that, how- ever competent through power, through natural wisdom, through studious comparison of numerous political systems and laws, and through sagacious reflection on their scope and tendency, any rulers, or the ministers of such rulers, may in these later times have become to frame a just plan of power for the government of any given nation — such competency must necessarily have been attained long after certain cus- toms and modes of life, certain common and confirmed opi- nions, and certain dispositions of the mind and feelings have taken too deep a root to be contended against without gene- ral mischief. CHARACTERISTICS OF A WELL-CONSTITUTED GOVERNMENT. 39 For this reason it is a commended saying of an ancient lawgiver, who framed a plan of government for the most enlightened nation of old times, that "his laws were not, " indeed, the best; but they were the best which that peo- " pie were capable of receiving." For this reason we may judge that caution to beat once benevolent and wise which restrains the Supreme Government of England, in the plenitude of its power, from imposing throughout their new- ly acquired Indian Empire the same scheme of political go- vernment, and the same fundamental laws, (however good in themselves, and however valued) as those which have arisen out of, and become adapted to, the condition of another class of our fellow-subjects. It will be sufficient that I should notice that implicit obedience to the personal dicta- tion required by those in authority, and as willingly yielded by all others, which throughout many ages has been habi- tual to the natives of these countries —that gpn^ral distaste and inaptitude to political discussion and legislation — I have but to allude to their zealous attachment, to the institution and rules of Castes, to the customs of Descent and Division of property, and of Marriage, to satisfy my Native readers that a total subversion of such rules and customs, and an en- deavour to square the feelings and domestic habits of one people with the laws made for anoth-r, would be as gieat a tyranny and violation, as the forcible transfer of their pos- sessions without reason, and without right. For habits and customs, which do not originate in laws, ought to be amend- ed by the introduction of other habits and customs: and it is an ill policy to attempt to change them by Laws. SECTION VI. The sime subject continued. Second; Changes should not be sudden. I do no more than add the necessary consequence of the principle I am discussing, when I affirm the political maxim that all innovations in government should be gradual ; and rather follow, than aim at guiding, the sense of the people. We know that change is a law of nature : it is not more ex- hibited in ail material things around us, than in the mind and spirit of mankind, A blind or prejudiced adherence to ar- rangements once made, but which can have had no other origin than the exercise of the human intellect, is, not only to surrender the superior powers of an understanding neces- sarily improved by the force of experience, but i3 in truth a contest against necessity. Such contests, however, though vain as regards the issue, may have their effect in prolong- ing the endurance of evil. Modes and systems of govern- ment must change ; and, like all other prospects in human affairs, they fitly form the subject of human consideration. But, the mass of mankind are doomed to toil for the neces- sities and comforts of life, and can have li'tle leisure to study the nature or value of political and legislative change. They are more prone to pursue with avidity, and to enjoy in com- placency, the objects of their dispositions and habits, than to submit such feelings to the reason of any others. Opposition to these fixed propensities can, when the occasion of it is not seen and estimated, serve but to produce pain and anxiety of mind. Conformity with order and the law is the bond of peace and the test of the people's prosperity — but cheerful obedience to authority can only be CHANGES SHOULD NOT BE SUDDEN. 4^ looked for from those whose passions are calm. Kow, then, since political changes must and ought tv be contemplated, are such changes best to he effected ? By such only who, having sagacity to perceive what measures may be profita- ble, and maturely reflecting on their tendency and conse- quences, will watch also the spirit of the age; and jvill be cautious that new laws, if they do not altogether conspire with that .spirit, shall at least not counteract it — by those who shall ever he mindful that reverence for the law is the only stable foundation of government. It deserves to he considered that no change is made without inconvenience, and that there is certain advantage in constancy and stability. There may be evil in settled or hereditary institutions — but, if they he slight, they should rather he endured than corrected at the imminent risk of greater mischiefs. For every alteration of fundamental laws tends to subvert that reverence for authority by which the force of law is sustained. And it may be that ancient laws which are good are preferable to novelties which are belter. So that the fabiic of government should be always touched with a fearful and trembling hand, and its very TUSt should be respected. It is not change itself, but sud- denness and violence in change, which at once excites the disgust of the multitude, and loosens the ties which bind them in obedience : and he that shall investigate the pro- gress of civil dissension wi41 find as many to have arisen from sudden violation of prejudices, and even caprices, as from actual oppressions. Hut, when the unthinking multi- tude shall overthrow the frame of government and trample on its laws, we may be assured that they will govern rather in the fury of passion than in thoughtfulness of wisdom. In t he violence of fheir innovations they will probably, indeed, conform to the temper of the times ; but their measures will always, and the rather sometimes for that very reason, offend against the true principles of govero- 42 CHANGES SHOULD NOT BE SUDDEN. ment. In all circumstances of a nation, therefore, we may justly fear the sudden introduction of political change. In all innovations (it has been wisely and aptly said) we should imitate Time. For Time, though the greatest of all innovators, so skilfully insinuates change, as to deceive our very senses. SECTION VII. The same subject continued. Third ; the External and Natural condition of a Country, and of its Inhabitants, to be observed. Among those accidental circumstances which cannot fail to impress on the inhabitants of various countries varying qualities of feeling, habit, manner, and intercourse, we must chiefly reckon the external or natural condition of each such country — and it becomes a mark of the just observance of the true principles of government, that its plan of power and the spirit of its laws should have reference to that external or natural condition. It is impossible to doubt that the difference of climate, or temperature of the air, according to the position of each country on the globo, occasions a difference in the corporeal strength, and power of exertion, and consequently in the sensibilities, and even in the intellectual faculties, of mankind. Moreover, the great dissimilarity in the soil and situation of different coun- tries produces a corresponding variety of pursuits. Ft would lead me into a wide field of curious observation, and perhaps of controversy, were I to examine into all the effects of such causes as these. We must be content with noticing what are most obvious. It must be the natural result of that deficiency of strength and power of exertion, that love of quietness and repose, and that delicacy or tenderness of feeling, which a great comparative warmth in the climate begets — that the people living under it should become averse to change, that they should be incompetent to the heats and conflicts of political discussion, and that they ; 14 CONDITION OF A COUNTRY TO BE OBSERVED, should be roused with painfullness, and collected together with difficulty, for the duty of withstanding agression. In colder countries, on the contrary, the condition of the body and animal spirits urges to incessant activity and contempt of danger. If we survey the diversities in the surface of various countries, we find that the situation of some, as being islands, or abounding in wide rivers, impels the in- habitants to the arts of commerce, and to a stretch of do- minion over distant colonies. The quality of others, as composed of fertile and separated plains, leads to a crowded population and a facility of intercourse. Over barren deserts tribes wander in the lawless independence of savage life — throughout the fastnesses of a mountainous district are scantily dispersed a few families, who know little of one another, and scarce any thing at all of the rest of mankind. Here, therefore, we perceive general and conspicuous effects produced by these external circumstances I speak of, which as they have contributed to form the peculiar charac- ters of the various nations of the earth, so must they have influenced the modifications of their several governments, and so must they ever dictate its principles and fundamen- tal laws. In some countries the people are naturally more prone to implicit obedience to constituted authority, and adhere with greater stedfastness to the institutions and cus- toms of their ancestors. Among them we may expect will prevail a greater discretion reposed in personal authority, and at the same time a greater permanence and simplicity in their laws. The inhabiiants of another clime are less easily controlled, more inquisitive and more eager in all their interests, and more bold in their pursuit of them. Among them, it is observed that (should not counteracting causes prevent it) a system of government will be aimed at admitting a greater extent of popular management, and of means for the expression of the public sentiments CONDITION OF A COUNTRY TO BE OBSERVED. 45 The openness and fertility of one country will be the per- petual source of attraction to fierce invaders, and preclude any long term of national independence — the barren rugged- ness of another will repel the avidity for conquest. The small extent and the close population of some states will suggest the greater union of councils, and keep down (he accumulation of laws — the wide expanse, the slenderly connected portions, or the vast commerce, of other states produce necessarily a proportionate delegation of authority, and complexity in the rules of property. The mi gets puzzled in the endeavour to trace the bearings of all these diversities on political government. It has ac- complished, however, with great success in the writings of some eminent philosophers; and in a manner as instructive as interesting to the studious inquirer. But these are details quite bey-nd the scope of a discourse so comprehensive as this ; which must confine itself to the extraction of general maxims and positions. It. must be sufficient if we can make it manifest, how vain must be any idea that the fancied perfection of any particular system of government must recommend it to the universal adoption of all nations, however circumstanced. Let us rather feel assured that the natural causes of national character are altogether above any human sway ; for the empire of the elements is stronger than many generations of lawgivers. SECTION VIII. The same subject continued. Fourth ; of the Share which the People should have in the Administration of the Government. But the most important mark of the true principles of government, in the consideration of such as concern them- selves practically in the just observance of them, is — that the bulk of the people should have some share in the administration of that government which the whole com- munity is bound to obey. Let us inquire what it is to have a share in the govern- ment. A man may be said to have a share in the polifical government of his country, either when he assists, or has a voice in, the supreme ordaining of the larvs of the state, under which its scheme subsists, and the administration of all its powers is conducted— or when he contributes person- ally to the actual administration of those powers, under the control of such supreme authority. Let it be observed, here, that I speak of a political government subsisting under some regulated scheme or plan of power, and govern- ing by and under laws — and I speak of those who personally contribute to its administration according to such constitut- ed scheme, and under the guidance of such laws. A mo- narch, or an united band of men, governing a people with- out any settled scheme, independently of any rules of law, and under no check, cannot be said properly to constitute any political government whatever. If he, or they, should govern, merely by the impulse of their own will and passions, how are they otherwise than in a state of nature ? For a state of nature is that in which people act purely according to their SHARE OF THE PEOPLE IN THE GOVERNMENT. 47 own temporary inclinations, and their own notions of self- interest. So neither can he who performs the functions assigned him in a state, according to the mere will of a mo- narch or governing body, he properly said to have any .share in political government. He is a mere tool in the hands of others. He cannot have a share in that which has no substantial existence. He possesses no political rights of any kind. He is but the medium through whom anuther party acts— and acts as if in a state of nature. Some such a share in the political government of a country as I have above defined a portion of the people must enjoy under every form or scheme of government which is based on fundamental laws, and which aims at governing by a course of general laws, and not by mere arbitrary and personal discretion. The share enjoyed may be very unim- portant, and the portion of the people possessing such share may be very small. But, still, so long as these -fundame.n'- 1 laws on which the scheme of government is constituted has force,and the general rules of laws according to which it is to be administered are observed, no man can have an unli- mited power to govern by his own will. The wishes and interests of others, as protected by the laws, must be res- pected as well as his own, in the administration of the government. There must be one or more persons who has independent authority to advise at least, if they do not actually partake in the exercise of the supreme po*ver ; there must be several to whom the administration of the affairs of government is intrusted, who are to be guided in the performance of their duties by the laws only, and not by any individual's arbitrary direction, and who are respon- sible only to the control of that supreme authority which is shared in some degree by a portion of the people, and not to the sole authority of one man. \\ hen all participation and influence in the supreme governing powers of the state are' denied to any portion of the people, and all means of administering the laws independently of arbitrary dicta- 4$ SHARE OP THE PEOPLE IN THE GOVERNMENT. tion Rre destroyer], the foundations of regular political government are torn up. When, however, that share in the exercise of the supreme power is very limited, and when it is extended, moreover, to hut a small portion of the people, such a scheme of political government can hy no means heconsidered as found- ed on jnst principles. There is no security whatever that the fundamental laws on which it is based will long subsist — and still less that justice will long continue to be administered according to any settled rules of laws by such as exercise offices in the state. And for this reason^ — because every man (as has been observed before) is im- pelled hy his very nature to seek the gratification of his own private interests, and to exert all hi-i power in administering to his own inclinations, rather than to labour for the general good of a community. And, as there is no limit to his desire to attain what he considers the pleasures and enjoyments of life, so neither will-tfhere beany limit to his consequent efforts at engrossing all the power he can, as the means of enabling him to appropriate to himself as large a proportion of them as possiMe. With this view he will always feel disposed to disregard laws of every quality which he is not compelled to obey. And. thus, when one single man, or a very few in- dividuals, shall have once obtained the supreme governing authority, and only a small number of the people have a very limited share in influencing or guiding the measures of the state, those who govern will be almost sure to abuse their power. They will be engaged in a continual struggle to abolish, or to abandon, all those settled rules and forms according to which the government is to be conducted. They will ever be more or less labouring to overawe, or to annihilate, the suggestions of others. They will hardly allow any who are under them to exercise the offices of the stale according to any equal rules of law, but only as their own tools, subject to their own absolute control. The SHAKE OF THE PEOPLE IN THE GOVERNMENT. 49 tendency of such a struggle is to destroy political govern- ment, and reduce society again to a state pf nature, in which the strongest govern, and seize to themselves whatever they desire. It must, then, be obvious that, in considering the question how far just, principles characterize any particular form of government, we have not merely to enquire whether one single person possesses the whole power, or whether a few persons possess it, or whether even a larger number of indi- viduals possess it. But the question is, whether so large a number share in the supreme power, and have in their various gradations a share in executing the duties of office, as to product an effectual check on the inclinations of one portion of the people to pursue their own interests at the expence of the rest. A few men, or even a large number, may combine to govern for themselves alone ; and history has abundantly shewn that they often will do so. But when the sharers are very numerous, such a combination becomes more difficult. The interests of many being at stake, it becomes the less likely that they can all be equally gratified through the oppressions and wrongs clone to the body of the people who have no share in the government. The interests of one portion of the governing body become a check and control upon the exorbitant desires of the other. The num. ber is increased of those who love their country and respect its laws, and who act from such motives. And if, besides this, the system of government be such as to admit of any methods by which the sentiments and feelings of the Public at large can be made known — so that their opinions may influence, although they cannot actually direct the measures and councils of those who govern — the chances become the greater that these measures will be di- rected to the common good of the nation. Moreover, when the various offices of the state are distributed widely among the people, and all the members of the community, having 50 SHARE OF THE PEOPLE IN THE GOVERNMENT. free scope for their industry and talents, are admissible to those offices, according to the gradations to which they at- tain in society and the qualifications they possess, there is the less probability of their becoming the mere instruments and tools for performing the will of others, rather than their just duties according to the established laws. It follows from this that the merit and perfection of any plan of political government ought to be judged of according as it admits the largest number of the people to have such a share in its administration, as they are qualified to exercise. And no system of political government can be completely well constituted, unless it shall admit of the bulk of the people to some such share. For, let the number be as large as it may of (hose who govern, if there be any portion what- ever of the people of a nation who have not the slightest power or influence in the state, nor the capacity of attaining to any ; but are bound to submit at once, without any means of resistance or even of remonstrance to the measures of others — that portion will be certainly wronged in some de- gree. For the governing body will govern for their own interests generally, without regard to the interests of this portion of the people. The governing body will be the masters — attending in the name to their own advantages and enjoyments— the others will be either as slaves or strangers in the land. It is manifest, however, that each member of a whole community cannot act for himself, either in the framing and ordering the laws of his country, or in contributing to the administration of them. Nay— it is only a very few indeed, compared with the whole number of a people, who can exer- cise the most limited functions of the supreme power, or who can be called on to fill the any of the various offices of the state. The mass of the people must be destined to pursue their several private avocations in life, and to yield obedi- SHARE OF THE PEOPLE IN THE GOVERNMENT. §\ ence to the few who govern, whether such few do indeed govern according to the laws, or according only to their own will. All efforts by the body of the people to govern for themselves, would — even in the least populous of nil nations — - lead to confusion and the struggle of factions ; and, in, the end, to the mastery of one, or of some small united body. And thus it would appear that, so far from the bulk of the people, by the share that it was possible they could attain to in the political government of their country, having the means of checking the natural impulse in the few who govern to destroy the scheme of government, and to disregard the laws — a small portion of the people must necessarily have the whole power ; they will certainly strive to abuse it ; the rest of the community will certainly be more or less wronged : and they will be treated either as slaves or strangers in the land. Hence it might be concluded that under no scheme of government can it be properly a princi- ple that the bulk of the people should have some appropriate share in its administration. The world may perhaps be still young— and the pro- gress of civilization has, it may be hoped, left mankind as yet far short of that maturity in understanding, and in social happiness, which may be destined for our race. But, alas! the history of nations has hitherto afforded few examples of a frame of government likely to last; or which has not, in the mean3 supplied of disregard to the common interests, carried in their very constitution the seeds of decay and death. If this, indeed, was the law of human nature, lamentable would be the condition of mankind. Impelled by human feelings and necessities to unite in societies— uphold- ing that social union by force only of political government — establishing schemes of government which must become, as it were, self-acting engines of oppression — the race of man would appear to have been created as the sport of demons ; and the history of nations would be but the history of alter- nations in human suffering. SECTION IX. The same subject continued. Fourth; of the Share o) the People in the government exercised by a System of Representation. We must not, however, pronounce all idea of correct prin- ciples, and of permanency, in the constitutions of political government to be a mere fanciful illusion. There have been some approaches towards perfection, An investigation into the qualities of those national governments whose merits have been most conspicuous will disclose the true spring and force of such government to consist in its representative faculty. The bulk of the people cannot, indeed, engage in the actual administration of the affairs of the state, or in the duties of office. But they can exercise their share in the government through the medium of others who shall represent them. In this lies the virtue of political go- vernment. It advances towards perfection, according as the system devised for having the interests of the national com- munity represented approaches perfection. And, in this view, it is certainly one mark and characteristic of a well-con- stituted government that its system provides for all ranks of the people, according to their station in society or their qualifications, the means of access to office. It is true that but few can actually attain to office— yet if it be open to all by their industry or their talents to attain the requisite qualifications for office, and if no individual so qualified is absolutely excluded from being selected by the constitut- ed authorities, then do all ranks of the people to a certain extent possess a share in the administration of the govern- ment of their country. And this share, from the circum- 8HARE OF THE PEOPLE BY REPRESENTATION. £Q stance of the means of attaining office being so generally diffused throughout the community, becomes in truth a share according to the system of representation. For the highest councellors of the state, and the highest magistrates, even though they should hold their offices by hereditary right, do not act according to their private will, but for the sake and on behalf of the body of the people. And, although these particular individuals who have themselves inherited such offices and functions in the state cannot be said to hold their offices through the express will of any particular portion of the community, or to perform their duties in the place, and as representatives, of any such particular portion — yet, when this station itself so clothed with the privilege of transmission by course of heirship, is attainable by all classes according to certain merits and qualifications, we may justly consider such hereditary magistrates as representing, and exercising on behalf of the public, some share in the admi- nistration which belongs to the people at large. More plainly is this the case as regards offices to which function- aries are appointed, either by the constituted authorities, or by the express voice of the people themselves. Such a share as this in the government of their country — consisting in the means of access to all the honors and offices of the state being afforded to the bulk of the people — whereby the interests of the whole community are more or less represented and protected, is a mark or characteristic of most of the civilized governments of Europe. But, with far the greater number of them, it is the only share in the government possessed by the general community. A share in the actual supreme controlling and legislative authority of the state, exercised by means of representatives freely and expressly appointed by a qualified portion of the people themselves, is a characteristic of very few of such govern- ments. It does not follow, indeed, that such countries are ill-governed ; or that the true end and aim of all good go- 54 SHARE IN THE GOVERNMENT BY REPRESENTATION. vernment may not have been eminently accomplished in such governments. Neither does it follow, even, that such countries could be better governed by the adoption of a more complete system of representative administration. For, as has been shewn before, there are various other principles of government, besides this of a share by representation, which ought to be observed in adopting a scheme of political government to its ends and objects. The habits of a people have to be respected — sudden innovations in government have to be avoided— and the condition and circumstances of the people, and of the country, have to be regarded, from whatever causes they have arisen. But although, under the circumstances of some countries, a more perfect form and scheme of political government by representation may not be at once practicable, yet it is fitting that this most important quality and principle of good go- vernment should be at least thoroughly understood, so that its application be kept in view as far as a due consideration of the position of the people will allow. For the bulk of the people m?y have the means of access to power, yet if the selection to office is to depend on the mere will of one man, or body of men, at the head of the state, who govern altogether independently of the opinions or in- fluence of the people, the parties selected for office will rather be servants of the head of the state than of the bulk of the people, and will do his bidding rather than their's, And, even though such functionaries may be appointed by the express voice of the people, yet if they be no longer afterwards dependant on the voice of the people, they will be apt to govern for themselves or for their other masters. The con- stituted scheme for the government of the state, and the public duties assigned for the protection and prosperity of the people, rest not on a durable foundation. They are lia- ble to change, and to disregard, according to the interests of those who have the entire power of pursuing their own in- SHARE IN THE GOVERNMENT BY REPRESENTATION. 55 clinations. The system of government is imperfect, and as a natural tendency to the rule of the arbitrary and tyrannical few, aiming mainly to gratify their own unlimited desires, over the submissive many who have neither influence nor power to check them. There is wanting, therefore, something more to render a representative faculty in the government complete. There requires a system of representation which is to have continual operation — a representative system which is to have a controlling and a restraining influence as a supreme authority — which is to aid, directly or indirectly, in every measure of the state, and even in the preservation and improvement of the very plan of power itself under which the administration of government is conducted. An absolutely perfect system of representation would provide for supplying a fit number of the best qualified per- sons to express the will, and to protect equally the interests, of the whole body of the people. For if every law and every act of the government, was in precise conformity with the will of the whole body of the people, ii is certain no in- justice could by possibility be done to any single person throughout the nation ; since no man would will his own injury, nor would even a majority of the people will any thing which would be the gain of a few only, and a detri- ment to the majority. And, if the equal interests of all were aimed at, and such persons were appointed to govern on behalf of all who were best qualified to judge of "hose common interests, human wisdom could neither devise nor desire any better scheme for the protection and advancement of those interests. But such a system of represent at ion is a mere conception, and practically impossible. It would be utterly vain to seek for an unanimous desire or an unani- mous opinion of even a small portion of the people upon any political subject. If the opinion of the majority of the peo- ple, or of any portion of the people could by possibility be ascertained upon any political measures ; it is certain that 50 SHARE IN THE GOVERNMENT BY REPRESENTATION. but very few of such a majority are competent to form a judgment of the- quality and tendency of such measures or even to give their attention to them. It is manifest, there- fore, that the will of the people, expressed under any system of representation, can only extend to the mere election of their representatives, and to the retention or change of them, according as their general conduct and services may, or may not, give satisfaction. # But what is that mode of election which is best calculated to ensure the services of those who are best qualified to pursue, and to pursue honestly, the equal and true interests of the whole body of the nation ? It would be vain to say that a mere majority of the people could best decide on such qualifications, and could be relied on for choosing such as possessed them. Suppose the whole community divided into so many sections, and each section should elect one or more representatives by a majority of the members, each having a single and equ^l vote. Then might, and probably would, the least educated, the most incapable, the poorest and most dependent on others (which constitute much the largest proportion) out-vote by a great majority the opinions and decisions of the wisest in the nation. No one could rationally desire that women, or children, or those so utter- ly destitute in their circumstances as to be dependent altogether on the will of another for the means of life, 3hould exercise equal rights with all others in choosing representatives to rule the state on behalf of the people. In every system of government which has admitted, in however extensive a degree, the principle of representation, some portion of the population have been excluded from such right of election. A sound and beneficial system of government through which the bulk of the people are to obtain their share of political power by representation must depend, therefore, SHARE IN THE GOVERNMENT BY REPRESENTATION. 57 on some appropriate test of qualification being required in the electors. The true tests, indeed, of •such qualifications are moral virtue and intellectual ability. But, as no rules can be practically enforced for examining into and ascer- taining the mental and moral qualities of individuals — where nature herself has not fixed the stamp of incapacity, as in the instances of children, or of dependence, as in the instance of females — some other external test has to be resorted to, if any there be, which may be betoken the probable existence of these qualities in a greater or less degree. The only test of this kind which can be appealed to is that of Property. The possession of wealth does by no means afford the absolute assurance of superior mental cultivation, or of superior mor- al virtue : neither do those qualities always increase in proportion to the increase of riches. But the experience of nations has proved that, generally, (unless a vicious scheme of political government should oppose it) the mind becomes elevated, the manners become refined, the moral virtues expand, and intellectual cultivation prevails, according as the national wealth abounds. It must be plain that inde- pendent means raise the possessor above the temptation of many of the meaner and most injurious vices ; and they also supply that needful leisure for education, which alone can render the mental powers efficient. And, as property is the most likely test of the requisite qualities in those who are to choose their Representative, so is it the fairest. For the acquisition of property, as among the means of human power and social happiness, is the most open of any to all classes of the people in a well- governed state. But, in truth, the influence of property must, from the very nature of things, always be supreme in a veil-governed state ; because the self-interests of mankind will always impel them to give their labours and services to those who are most able and most willing to reward them. If those who had little or nothing did not pursue their own private interests by this course, they would still nevertheless 58 SHAKE IN THE GOVERNMENT BY REPRESENTATION. pursue them ; and the only other course open to them would be by lawlessly invading the property of others. Property would thus change hands, but either it would have its supreme influence, in these new hands — or else it would in like manner be invaded and destroyed again. But, to suppose a total insecurity and open violation of property, is to imply a dissolution of the bonds of government, and even of society. From these considerations it will appear that the merit of a system of government, in which the bulk of tlu> people have a share by means of Representation, does not consist in any provision for the will of the people prevailing and becoming actually operative, as regards the measures of the state— but in just provisions being made for their electing such as are most competent to act for their interests, and through whom their opinions, and wishes can be expressed. Still, however, this is not enough. A fitting and well-qualified portion of the people may have been constituted to exercise the power of electing Representatives. Those Representa- tives may be the best capable of perceiving and pursuing the measures most conducive to the service of the common ■welfare of the nation. They may be of sufficient number, and may possess sufficient power to check and prevent the misgovernment of the other constituted authorities of the state. But they may themselves abuse their power, and seek to serve their own interests, rather than those of the community whom they are delegated to represent, and on whose behalf they are appointed to act. And it is likely they will do so, unless the community has the means of securing itself from their misgovernment, by making it more their interest to govern well, than to govern ill. These means it may have by limiting the duration of their authority, and making them responsible, at the peril of losing their appointment, in case of betraying their trust, or SHARE IN THE GOVERNMENT BY REPRESENTATION. 59 of evincing incapacity to fulfill their duties. The mass of the people are not, indeed, capable of judging # well of the various measures of state ; nor is it possible to provide them with the power and opportunity of dictating such measures j but they are competent, as a body, to judge of the general conduct of their Representatives, and to determine on the quality of flint, conduct by the effects. Dishonesty, corrup- tion, and tyranny can hardly escape their notice. If the duration of their appointment be so short as that no ad- vantage gained in such a period would compensate for their consequent dismission from office, the public would have the security of their own interests for the faithful fulfilment of their duties by their Representatives. In that case, also, the sacrifice <>t the interests of the community by measures injurious to (he common w-elfare would be the sacrifice of their own interests as a members of that community. The in- terests of those who represent become in this way the very same as those of the represented. A complete practical union of the whole body of the people is formed for check- ing the injustice, and rectifying the misgovernment, of the few to whom the actual exercise of political power must necessarily be entrusted. SECTION X. Reflections on the Marks and Characteristics of good Government which have been discussed ; and on the Political conditio?! of India. Thus have we examined, though but superficially, into this characteristic virtue of political government,— consisting in the share therein to be vindicated by the bulk of the peo- ple — and which is the most difficult and controverted pro- blem in the science of politics. It is very fit that this qua- lity of government should be sifted and known by all enlightened citizens. But such citizens will be cautious how they are led away by specious and half- considered doctrines on such momentous topics. It behoves all such to weigh in their minds that, as no system of government can be per- fect, so none can be adapted to every variety of people. Bearing in remembrance the true, though ideal, principles of government, the reflecting and influential portion of every nation will still hold in their consideration the peculiar cir- cumstances of their country, both external and personal, as regards the people. They will have to mark what is their general advancement in civilization, in sound knowledge, in religions purity, in moral disposition, and in rational habits. On this must depend the qualifications, not only for con- ducting wisely and beneficially the powers of the state, but for even selecting such as can be entrusted with such autho- rity. Each man's share in the government must depend not only on the general condition of his country, but on the varying personal qualification of the individual. Give the flute to the musician, and the helm to the pilot. Let the lawyer advocate causes —let the statesman propound laws. REFLECTIONS, &c. Q\ It is a vain, and it is a fearful thing for a people to aim at fundamental changes in their schemes pf government, by grasping at a greater share of power than their qualifications in mind and manners will allow of. More than two thousand years have elapsed since many just principles of govern- ment have been from time to time expounded. Hut experience has proved that a wise and efficient repre- sentative system of government must be the slow growth of ages ; and perhaps but one such system has ever arisen on the earth. That no such empire should, in the fortune of nations, ever have been founded hitherto in India, will be easily ac- counted for by those who shall have studied i(s history with reflection and discernment, and computed the various com- binations on which the formation and endurance of every mode of government must depend. Independently of those inherent natural causes influencing the destiny of nations, on which I have already dwelt — independently of consi- derations of the national religion and the customs of Caste (topics which I have purposely abstained from touching upon in this discourse but which, as all must feel, incul- cate a peculiar degree of implicit obedience to mere personal authority) — there are other causes for the past ami present political condition of India which can only be sought for in the great chapter of worldly events. What the real history is of the various tribes inhabiting this vast country during many early ages, we must be content to be ignorant of. Hut we know that, during the progress of several later ages, India has been subjected to repeated conquests. It might have been well if the conquering invaders, had brought liberal institutions, liberal arts, and sound know- ledge, in their train. Hut, unhappily, this wide country has ever, till of late, fallen the ea^y prey of savage nations ; who, without civilization amongst themselves, without ra- tional laws or any systematic plan of political government, go REFLECTIONS, 8tc. have conquered but for the purpose of plunder, or have ruled with no other object than exterminating oppression. If, under 'he decrees of Providence, the people of India have now fallen under the sway of another foreign nation, it will be well for them to estimate what changes have been there- by introduced, as regards the happiness of the general community — consisting, as I have declared, in the more perfect enjoyment of private rights and acquisitions, and personal security from wrongs. It will be well that the people of India should estimate how far it is sought that society should be held together by requiring that every man should do his duty by his neighbour, and assist in obliging his neighbour to do his mutual duty towards others — that they should examine t he quality and tendency of their new institutions in rendering them fellow -subjects, and not dependents and slaves. Those who shall follow me in the task I have set myself will, I trust, learn how, as such fellow -subjects, they may, and ought to, contribute toward the preservation of t lie present government. I hope to exhibit to view a plan of power introduced here which, excluding no subject from office and honors, is framed to call forth the interest and assistance of all, and is rightly founded on principles which, according to what is benefi- cially practicable, shall accord to the people at large their just political share. There can be no standard of a perfect government, fram- ed for eternal duration. For even were it within the com- pass of human genius to devise such a plan of power as might unite every true principle of political government (as it assuredly is not) yet are the human passions beyond the scope of legislation. The force of ambition and desire continually ur#es us into new efforts for their gratifica- tion, as irresistibly as the external elements work out their chanceful revolutions. Vicissitude is the inherent and uni- versal law of nature. In vain, therefore, have the chiefest REFLECTIONS, &c. Q3 among philosophers projected schemes of a perfect com- monwealth ; the very names of which have come prover- bially to denote impossibilities. 1 qually vain, but far more mischievous, are those agitations of the people impelling them to seek for liberty— constitutional liberty — political liberty (terms as yet unknown to my readers, and but ill un- derstood by those who most use them) in some peculiar mo- dification of the powers of government, whereby the actual sense of the whole community shall be taken in every act of the state. The plentiful experience of many nations has taught us that under governments of this kind as much op- pression, and as frequent dissension and change, will arise as under any other. What, indeed, is political liberty I should at present vainly attempt to explain ; nor will it admit of exact defini- tion. But, from what I have observed, I think all may rest convinced that no man can pronounce it to consist necessa- rily in this or that particular modification of the powers of government; but we may confidently assume it to exist in proportion as those principles of government which I have endeavoured to lay open are observed. We may look for it under those governments — where the plan of rule, or con- stitution, expressly provides against the abuse of power — where the law sets bounds to the human will. It consists in security from wronJPfcwhuh the arbitrary will of another might inflict ; and in the opinion of safety. Freedom under government is that freedom which is left, after the just pro- tection of the social rights of others shall have been provid- ed for by standing rules to live by, common to all — a freedom to follow our own will only in those things where such sound and just standing rules prescribe not. For there can be no liberty without law. SECTION XL Of the Evils of arbitrary Government. I cannot better enforce these last observations, and close the important subject of this discourse, than by contrasting a scheme of government framed on these just principles with that arbitrary power which is guided by no other rule or measure than the will of the supreme governor. Under such a government, there can be no other good or evil than such as depends on the passions of an ignorant Prince. Me errs— for who will be bold enough rightly to instruct, him whom all must at every peril please ? He is vicious — for there is no restraint on his appetites. The good is as subject to accident as his caprice — but the evil is as sure as the propensities of men are wicked. Under such a government there can be no real love for the Prince, nor reverence for the Laws. For, how can those who have any independence or nobleness of spirit love one whom ihey are ever bound io flatter , amd whose very fancies and most unjust commands they are bound to obey ? How can there be any reverence for laws which can never be certainly known ? Fear is the true spring of such a govern- ment. Not the fear of bad men to break the law and wrong their neighbours ; but the fear of good men, as well as bad, to disobey the very worst command of an absolute Prince, or to resist his utmost oppressions. For such an arbitrary governor will know that, should the sense of terror be relaxed, and any dare to dispute, or even discuss, his orders, his authority, the sole power of his government, is weakened— those who under such a tyrannical sway cease to fear instant OF THE EVILS OF ARBITRARY GOVERNMENT. 65 destruction from disobedience will assuredly begin to govern for themselves. Obedience, therefore, must be instant and implicit — without reasoning, without remonstrance, without representa- tions. For if terror be the grand instrument of such a course of government, the mo" arch will set no bounds to his desire of increasing the force and perfection of this instru- ment. To some, tor his own ease, he must entrust a por- tion of his powers — but they will not he many, as they would occasion faction and conspiracies ; nor will they be virtuous or hi^h minded, as such might lean to resistance. From the few, therefore, who govern in his name, the ab- solute monarch will exact precise conformity with his will, under pain of the heaviest and most certain punishment. The few submissive minions, who govern in his name the mass of the people, must accomplish the commands, and uphold the power, of their master by the same course. Where are the limits, then, of cruelty and oppression ? Under such a government there can be few, if any, faith- ful advisers. All must advise in peril of their fortunes and of their lives. Those who should counsel the Prince well for the interests of their country, would advise something con- trary to the bent of his inclinations or to the exorbitancy of his desires.. They would advise equal and certain laws, and measures which would conduce to the security and independent spirit of the people. Their counsels, therefore, would tend to weaken the force and main spring of the government ; namely, that fear, which dictates instant sub- mission to arbitrary will. They would advise what would end in convulsions in the state, or else in destruction of themselves. Can such a state prosper? Look at the nations around In- dia, governed as they are, and have been for ages, by 66 OF THE EVILS OF ARBITRARY GOVERNMENT. arbitrary rule. Compare their condition with that of any other, even the worst governed, nation in the civilized world. It is throughout these Eastern regions of the globe that the most prominent examples of this species of government have prevailed— but, although we find there the most ancient of nations, we find among them the slowest advances made in all that constitutes the hap* piness and resources of a people. Such as they were several thousands of years ago — such are the most of them at this present moment. With minds debased by fear they can have little taste and little appetite for knowledge — nor will the cause of education thrive where the supreme ruler, aware, that knowledge is power, will never seek to abate that igno- rance in which lies his own preservation. Can science or the arts of life flourish, or can industry abound, where there is no safety for the person, or security for possessions ? Why labour — why seek to amass wealth — why engage in enterpris- es-it by the displeasure or rapacity of one man all may in a moment be ruined, and there is no certainty of enjoying any condition of life, or the fruits of toil, even for a day ? In for- mer times there have been governments in India, under which every individual's possessions fell to the Rajah at his death — with whom it rested to seize or to resign them to his family. Can any spirit for useful exertion survive in such a state as this ? Riches, indeed, or what the ignorant herd of mankind deem to be such — may abound. The precious metals— which are of no value in themselves, and do but represent, ox give pledge for, the commodities of life in the same manner as scraps of paper money may— are often found to accumulate. Costly jewels, which have no other value than what the fan- cy may invest them with, are seen to glitter in brilliant heaps. Many of the sources, also, of sensual pleasures, and of amusement to the unthoughtfnl and uninformed mind, may exist to excite desire, or even admiration. Riches such as OF THE EVILS OP ARBITRARY GOVERNMENT. (fl these may abound for a time in nations knowing no other law than the will of their monarchs. And they will be found spread, as it were, round the footstool of the throne, for the enjoyment of the Prince and of those whom he may be pleased to favor— the spoils of forced labour and extor- tion. But, of that true wealth of a nation, consisting in the general diffusion of all the products of labour — which nou- rishes a healthful population— and fosters the universal spirit of a people to maintain their possessions in security — there can seldom be any signs. The hoarded treasures of the monarch, however, generally becomes, soon or late, the prey of some conquering spoiler, whom it little concerns the people at large to resist. For what can a people governed as these are suffer from any political change ? Having nothing they can securely call their own ; doomed to their share of general toil for the benefit of others; and holding their lives at the disposal of a master ; can it matter to them by whom, or how, they shall be governed ? " I will send my boot to " govern you," said the absolute Prince to his subjects, lamenting his protracted absence from his country. Nor if such a people could escape the frequent miseries of plundering invasions, can they ever hope for any duration of internal peace. For where there is no settled constitu- tion or plan of power, there can be no regular succession to authority. It may he that the sense of the people, or the will of the monarch, may destine the succession to proceed in a certain line. Hut the will of the monarch continually changes. By force or by fraud he may be made to change the destined succession — by falsehood he may be represent- ed to have changed it. There is no rule but the power of a faction to determine it. Accordingly we find, in all the countries round about us, the demises of their sovereign oc- casion periodical convulsions throughout those states. Few instances of such demises occur without a struggle for the supreme dominion— nor are such struggles ever unattended gg OF THE EVILS OF ARBITRARY GOVERNMENT. by bloodshed and violence ; often do they convert the land into a scene of universal devastation. Such is government without law. Let us turn our eyes to a different— a noble spectacle. DISCOURSE II. On the Government of England. o F the Nature and Origin of the English Constitu- tion. Of the Supreme Legislative Authority of the English Government. Of the Queen in her Legislative Capacity. Of the House of Lords. Of the House of Commons. Of the Mode of Enacting Laws, or Statutes. Of the Exe- cutive Branch of the English Government. DISCOURSE II. On the Government of England. SECTION I. Of the Nature and Origin of the English Constitution. T. HE people of England have established a certain peculiar plan of government which has become cele- brated throughout, the world by the general term of its Constitution It consists of a scheme pf rules, according to which fha supreme uncontrollable authority, prescribing what shall be done, and prohibiting what is not to be done, is to be exercised. It may be thought to require some explanation how any such form of government can be said to be established — or how, if so established, this can ba said to have been accom- plished by the people. It may be objected, that in whatever person, or body of persons, and under whatever set of rules, the supreme authority may have been confided, such autho- rity being supreme and uncontrollable may enable the go- vernors to alter these rules and change the model of the con- stitution altogether. And it may be asked, how can it by possibility be shewn that the people at any time, or by any direct course, or even by any indirect method as acting by representation, arranged and settled this scheme of power. But the constitution of England may be truly said to be established, in this sense. Those who come to the exercise of their supreme controllable authority were not originally bom with it. A people with a governing body were not all 72 ORIGIN OF THE ENGLISH CONSTITUTION. at once created by supernatural power. Those who take up the sceptre of supreme authority do so either by wrong and violence, and injustice to others (which is a course of go- vernment without any plan or rule whatever — and not the subject of our present consideration) or else upon conces- sion and agreement of the community either express or understood, as regards the terms and objects of their go- vernment. Tf, therefore, such rulers, taking up their autho- rity upon concession and terms, shall betray their trusts, shall abandon their duties, reject the terms, and overthrow the prescribed constitution by which they are to govern — things have reverted to the same condition in which they were before any course of government was conceded or agreed upon. The rulers on the one hand, acting without any sanction of the people, and without any reason or justice on their side, have recourse to new methods of political as- sociation—and the people, are called on to devise or concede to some new plan of power, which, with justice and right on their side, they are entitled to have recourse to. There is no longer any political government at all, until either by wrong, on the one side, or by the exercise of the natural right of the community at large, on the other, to concede or agree to the terms on which they will he governed, a new scheme of power is settled. That form of government, therefore, may be properly said to have been established, independent- ly even of that supreme uncontrollable authority appointed for exercising the powers of government, when the consti- tutional rules of such government are set and prescribed for the rulers as well as the subjects, and cannot be invaded or altered even by the supreme appointed authority itself — un- less the sense of the community at large be newly taken as agreeing to such changes — or except such supreme authority shall, by dissolving altogether the bonds of all political go- vernment, remit to the whole community at large the origi- nal natural right of acting for themselves. ORIGIN OF THE ENGLISH CONSTITUTION. 73 So, also, may it justly be said that the people of England have established that scheme of government by the consti- tutional rules of which the supreme authority may be bound to be guided by in the exercise of political powers. It is true that no precise period can be pointed out when any particular form and scheme of government was laid down by general consent. It is true, indeed, that the fundamental rules of the English Constitution, or frame of government, has been constructed gradually, and as it were piecemeal — one rule of government after another. And this is, in fact, a peculiar merit, and source of stability, in the English scheme of government, that, instead of being the product of mere prospective contrivance, it is the growth of ages of experi- ence, and of the reflection of many generations of powerful minds on the true sources of political evils which have been actually suffered, and of political excellencies actually prov- ed. Id the long history of national vicissitudes through which the English government has passed, ample scope and opportunities have been afforded, not only for ascertaining under what rules and principles the people can be best go- verned so as best to secure the true and just ends of politi- cal government, but also to collect the general and repeat- ed expression of the united public voice of the people at large on behalf of the political interests of the community. Of- ten have the oppressions and selfish grasp of power by the Sovereigns of England extorted the indignant and success- ful opposition of the bulk of the people — sometimes the par- tial and overgrown authority of the higher orders in the ex- ercise of the political functions entrusted to them, have re- quired restraint at the hands of the people or at those of the Sovereign himself — often, also, has the wild or misdirected passion of the multitude overborne the deliberative councils of those most competent to conduct with regularity and ef- ficiency the course of government ; and thereby the people have themselves come to learn by disastrous experience how fatal to national prosperity is the absence of control over the 74 ORIGIN OF THE ENGLISH CONSTITUTION. popular will, or rather over the violence of the various par- ties who struggle to guide that will. It has been in the pro- gress of vicissitudes of this nature that the people of Eng- land, as a general body, acting in their various classes, and according to their positions in the state or in society, have come gradually to fix rules and limits for the exercise of the supreme authority in its various branches. By some they have been introduced— by others they have been conceded to — by all parties capable of judging they have been for many generations examined, discussed, and proved. They now form a plan of power fixed in the conviction and in the af- fections of the people — a noble fabrick raised by the labour of many centuries, the pride of our nation and the envy of our neighbours. It has been able to resist the storms of political ferments through many ages ; and it can never be overthrown till the whole body of the English people shall have become so corrupt, or so cowardly, as to surrender to a faction, or to an oppressor, what the united sense of the people has established. Let us now contemplate this noble object in all its parts. SECTION II. Of the Supreme or Legislative authority of the English Government. The supreme authority in England, as in all other coun- tries, is the legislative power. Other authoritative functi- ons in the state may be exercised by high magistrates act- ing altogether independently, and to whom entire discretion may be entrusted in respect of the acts of administration delegated, according to the rules of the Constitution, to be performed by them ; such as the administration of justice by the judges, and the making of war and peace by the King. But, still, such functionaries are not absolutely supreme — for this plain reason — because those who have the power of making laics can at any time interfere by regulating how, and according to what rules, they shall exercise their functi- ons, and pronounce their judgments, for the future, and may even alter what such functionaries may have done. Nay, more — the legislative authority, having the power to make all or any laws, may, practically, even change the quality of the powers which, according to the fundamental rules of the constitution, are specifically entrusted to the exercise of par- ticular functionaries under particular limits. To do that, in- deed, would be (as I have said) to overthrow — as far as such legislative interference went — the constitution itself; and, therefore, it never could be justified, except by the ascertain- ed 3ense of the body of the people concurring. And this is a concurrence which in essential matters, as it must always be very difficult to ascertain, so is it both perilous, and per- haps hopeless, to attempt attaining. Still, as there is no practical,' or actual limit (though certain constitutional rules 75 °F THE SUPREME LEGISLATIVE AUTHORITY. have been set) in the exercise of the power of making laws upon all and every subject-matter — it is this legislative au- thority and this only, which we must consider as supreme. The legislative authority, according to the English Con- stitution, is reposed in a body composed of three separate organs, or agents, of political power. These are 1st, the King or Queen * who acts with the advice, and generally through the persons, of his or her ministers, who are respon- sible for all the royal acts — 2d, an assembly called the House of Lords ; and 3rdly, an assembly called the House of Com- mons. The Queen has other powers, besides those in her legislative capacity, of which I shall have to speak. At present we will regard her as one of the component mem- bers of the supreme authority of the realm. The body, so composed of these three constituent authorities, is called The Parliament. The mode in which its actual and ope- rative powers are exercised is by the passing of laws by their united concurrence — which laws are, accordingly, termed Acts of Parliament. Let us examine the quality and functions of each of these three authorities ; first sepa- rately, and afterwards conjunctively. * As a Queen is at present the occupant of the English throne (which may she long continue) the royal authority will in the ensuing pages be designated by that title, or by that of " the Crown," " the Sovereign," " the Monarch." SECTION III. Of the Queen in her Legislative capacity. 1. The Queen. — The Queen of England, exalted as her rank is — and revered as her person must be, not more as representing a long line of ancestors who have held the same eminent station, than from the vast national import- ance attached to the performance of her functions — holds her highest title to the affection and obedience of her sub- jects as being the First Magistrate in the kingdom. As such she has her duties, like all other magistrates, and the cares of royalty are bound up in the welfare and good government of her people, according to the principles of the Constitution. By the rules of that constitution, she succeeds to her station in virtue of her birth, and as an hereditary right ; and not according to the varying decision of any course of election by the people. For historical experience has long proved to the conviction of the people of England, that a fixed regular appointed course of succession is the surest course of preserving the internal peace of the nation ; and they have relied on the rules and limitations, under which they have established that the Monarch shall execute her great powers, for the protection of the general interests of the community in all her acts of state. They have relied on these appointed rules, rather than on any vain efforts to ascertain or secure the personal qualifications of their first magistrate, as the assurance of their government according to those principles of the constitution — and they have appointed institutions through which the Monarch himself is admonished of his own powers and the relative rights of the people. In a government so constituted it has been thought that no sufficient reason existed for excluding fe- 73 OF THE QUEEN IN HER LEGISLATIVE CAPACITY. males from inheriting the crown ; although their claims have been to a certain extent postponed in favour of a male succession. By the constitutional law of England the Sons, all of them according to priority of birth, and their descend- ants in a right line, succeed to the crown in the first in- stance : in default of any sons, or descendants of sons, the daughters and their descendants in like manner succeed, according to priority of their birth. And, whether a male or female sovereign reigns, they hold precisely the same powers. As a member, and the Head of the Parliament, the Queen is entrusted with the authority of summoning that Body to meet for the purpose of consulting upon the affairs of the nation, and of passing laws from time to time as may appear requisite. And by the constitutional laws of England she is bound thus to call the Parliament together at least once in three years — and is enjoined so to summon this body once every year, if need be — which need, as it in fact necessarily does arise, the Parliament is summoned, in practice, to meet in the course of every passing year. Each of these yearly meetings is called a sessions of the Parliament; and it rests with the Queen, according to her dis- cretion, to put an end to each such session — which is an adjournment of the sitting of the same members of each respective assembly — until such time in the course of the ensuing year as the Queen may in thus adjourning fix for the meeting again. This adjournment is termed the Proro- guing of Parliament, and the period of their separation is termed the Recess. The same Parliament cannot meet at these several sessions for more than seven years successively. In the course of that period, and at any such time as the Queen in OF THE QUEEN IN HER LEGISLATIVE CAPACITY. 79 her discretion may resolve, her Majesty must put an end to the Parliament itself, and not merely to the sessions of the Parliament : and if the Queen should fail so to put an end to the Parliament, it expires of itself by a sort of natural death. This ending of the Parliament by the monarch is called dissolving the Parliament. The effect of a dissolu- tion of Parliament is, that the functions and authority of each member of the two legislative bodies altogether ends. Another appointment must be made of each of these mem- bers, according to the course provided by the scheme or constitution of the government, which will presently be ex- plained ; and the Queen, by her next summons of a meeting of Parliament, calls together, not a new sessions, but the first sessions of a new Parliament. Moreover the Parliament comes to an end by the death of the King or Queen— for it can only exist as a Parliament for six months thereafter, and may be dissolved at an earlier period by the successor to the Crown. Upon the summoning together of the two Houses of Par- liament for a Sessions, it is usual for the Queen to go herself personally in great state to the Parliament House to receive the members of them : although sometimes authority is given to one or more high functionaries to act for, and represent, the monarch on this occasion. Upon the arrival of the Sovereign she proceeds to her throne, or royal chair of state, and, the members of both houses being on that occasion assembled together in the room of the House of Lords, the Queen from her throne addresses the united body in a written speech. In that speech she usually alludes to the external condi- tion of the country, with reference to foreign powers — its internal condition with reference to the public peace and quiet, and all matters of chief concern to the interests and prosperity of the nation — and to the various topics requiring the consideration of Parliament, as connected with the con- dition and prospects of the country, and with the measures gO OF THE QUEEN IN HER LEGISLATIVE CAPACITY. contemplated or in progress by the Queen acting through her ministers in the exercise of the powers entrusted to her (as hereafter explained) in the government of the country. This grand ceremony is called the opening of Parliament. After the delivery of her address the Queen retires, leaving the two houses, each in their separate assembly, to proceed to the business of the sessions, and who themselves adjourn their own meetings from day to day, until the whole session shall be closed by the Prorogation. In the conduct of the business of the two houses the monarch takes no part, save by sending a message occasionally through some one of his or her ministers who may happen to be a member of the house, recommending some particular subject to their consideration. The only further legislative duty and power confided to the monarch, as a constituent member and Head of the Parliament, is that of assenting or dissenting to the acts which are proposed or passed by the united houses ; without which assent no proposed law can have validity. It is impossible to contemplate this imposing spectacle of the opening of the British Parliament without a feeling of elevated veneration. The pomp of processions and the glitter of wealth, considered as a mere shoiv, will but little affect the higher orders of mind. It is the occasion only that gives dignity to the scene. It is not the diadem on the Sovereign's brow, nor the robes with which the nobles of the land are clothed, whiu* are the sources of rational admiration. But the thought arises that upon that brow rest the cares of an Empire, the mightiest on the earth — under those robes stand forth the great counsellors of this illustrious state, each of whom boars his share in the bur- then of its government. They are met, as representing the united body of the governor and the governed, practically to renew by a formal example the great compact between the monarch and her subjects, under which the constitution is maintained, and the rights of the people and the glory OF THE QUEEN IN HER LEGISLATIVE CAPACITY. Q\ of the nation are to he preserved. We see standing amongst them the ablest statesmen, and the most power- ful orators— we think of the vast human interests entrusted to their charge— and we know that on their voice will de- pend the well being of millions, and the fate of nations. They are met, as the grandest and most potent assembly ever invested with authority over their fellow-men, to take part in the first solemn act of entering upon political duties, the influence of which will extend throughout the whole civilized globe. SECTION IV. Of the House of Lords, 2. Let us next examine the quality and functions of the higher of these two assemblies — the House of Lords. The Members of the House of Lords are such high dig- nitaries, who have been themselves, or whose ancestors (to whose rights and honors they have succeeded by course of inheritance) have been, raised to such eminent station by the grace and favor of the Sovereign. Those who, ihe first of their families, are thus raised to such high dignity, are presumed to be selected on account of conspicuous services rendered to the state in the course of public employments, or of pre-eminent talents and qualifications for the public service, and sometimes on account of that extensive influ- ence among the people which great wealth, justly accumu- lated and liberally disbursed for the public good, naturally confers. All these individuals are termed Lords of Par- liament. Among those who have been themselves thus selected, and whose rights and honors do not descend to their families, is a body of persons who, under the tides of Arch Bishops and Bishops, have confided to them by the Sovereign certain duties and authorities in support of reli- gion — and who in virtue of such office are entitled to a seat in this house, with all the same legislative powers as the other Lords ; although they seldom take any active share in any other business of the legislature save that which is more or less connected with religious affairs. The other members of this house, whose honors and rights descend in course of inheritance, are termed Peers ; and' are some- OF THE HOUSE OF LORDS. g3 times called temporal Lords, to distinguish them from the other religious Lords who are denominated spiritual Lords. These Peers, or temporal Lords, although all equal in respect of their powers and privileges as members of one of the Houses of Parliament, hold different ranks and pre- cedencies among one another, and before the public. Their rank (with the exception of such of the King's own family who may happen to be Peers, and who always rank highest, and of a few other instances of rank according to some particular offices in the state) depends on the quality of their title, called their title of nobility. The first or high- est title is that of Duke; 2d. that of Marquis; 3d. that of Earl; 4th. that of Viscount; and 5th. that of Baron. But, it may here be noticed that the rank of an Archbishop is before all other Lords of Parliament except those of the royal family ; and that the rank of a Bishop is next after that of Viscount. It has been noticed that it is the King or Queen, acting by his or her mere grace and favor, who calls up from out of the body of the people such as he or she may think deserving to be advanced to the dignity of a Lord of Par- liament. It must be obvious that to such high authority only can a power of this important nature (which must be personally delegated to some person or party) be entrusted. If a judgment is to be formed of the merits of a statesman, or public servant, that judgment should rather be formed by the most exalted personage of the slate, whose labours in the duties of the government have been assisted by him, and who is the supreme magistrate over all classes, than by any party of men in the state, who, having no supreme au- thority in themselves over their fellow-subjects, but having 1 necessarily objects of separate ambition or interest, would in all likelihood render such power of advancing others subservient to the private purposes of a faction. g4 OF THE HOUSE OF LORDS. Still, it may be thought, that the Queen herself, having such a t tnary power of creating members with a voice in f stale affairs, miyht have inducements to fill an assembly of this nature with her own creatures, pledged to execute her own will and designs, and thereby overbalance the co-equal power entrusted by the constitution to the other house, and give a casting majority in the House of Lords itself. But, here, the principles and fundamental rules of that constitution would oppose a barrier. For all the nation could judge that these rules were broken and betrayed, were it apparent that Peers were plentifully created — not for any purpose of the general public service, or as an honorable reward for great national exploits — but merely with a view to particular favourite measures, or to aggrandize the power of the Sovereign. And while the body of the people have the means, through those who we shall presently see represent them in the other house, it can never be hoped that arbitrary and unconstitutional views of this nature can be indulged without soon meeting an effectual check. In alluding to the mode of dissolving Parliaments, it was said that, after a dissolution of the Parliament, newly appointed members were called to the next Parliament summoned. And this is literally true with regard to the members of the House of Commons — but, as respects the members of the House of Lords, it is to be noticed that the Queen summons each individual member personally (as if he was then newly appointed) at every meeting of a new Parliament; which summons, however, cannot be refused to any Peer. The only actually new persons, therefore, summoned as Lords to any new Parliament called together, are, 1st, those who may have been newly appointed Spiri- tual Lords in the place of those deceased ; 2dly, those who may have succeeded as heirs to Temporal Lords deceased; and 3dly, those who may have been newly created Peers by the grace and favor of the Crown. OF THE HOUSE OF LORDS. g«j The Lords are attended at their sittings by more or less, and sometimes (as the greatness of the occasion may sug- gest) by all the Supreme Judges, and* by other functi- onaries of eminence in the law, for the purpose of assisting them with advice on legal points. But none of these legal dignitaries are members of the house, or have any right to vote ; nor have they any right to speak therein, except when called upon. Each of the Lords may delegate any other Lord in his own absence to vote for him upon all or any questions dis- cussed before the house. This may be thought, perhaps, to be somewhat an unreasonable privilege, inasmuch as it miybt appear like voting blindfold, and for mere party purposes, to decide questions of policy, without hearing the discussion of ihem. I will, however, only notice so much in explanation of a privilege the expediency of which has occasionally been canvassed, but has now for many ages been allowed to subsist as not having been found incom- patible wiib propriety — that the Lords (as has been explain- ed) are not liable to be changed at every new Parliament, and that each of them therefore alicays forms a component portion of the legislature. 1 1 " is among the duties of his whole life and station always to be informed of the general policy and course of government of his country, and to become acquainted with the principles on which any particular class of ministers selected by the Crown con- duct the affairs of the state. Indeed, most of the indivi- dual measures of the more important quality, and which usually occupy most time in debate, he may be presumed to have more or less previously considered. As, therefore, the Peer is not the representative of any other body, but himself, always intrusted with an actual share in conducting the affairs of government, and may be presumed to have studied the tendency of most of the measures under discus- sion, there is nothing so unreasonable, as might at first ap- 86 OF THE HOUSE OF LORDS. pear, in his exercising the influence of his vote, even on occa- sions when he may not be present personally to enforce his own opinioi* and co listen to those of others. Upon all questions debated in this House, each Peer has the privilege of entering upon the books of the public pro- ceedings his dissent, and his reasons of dissent, to the mea- sure proposed. And the only other distinguishing privilege of this House of Lords, which seems necessary to be noticed separately, is that of solely examining, discussing, and decid- ing on such of their rights as are supposed to exist, already, and of solely originating any legislative measures which may affect their future rights, individually, as Lords of Parlia- ment, or as a body composing this separate assembly. These Acts, or measures, may be rejected or assented to by the other house, but the latter has no power to change or alter them. Such are the Lords of Parliament — a body as old as the independence of the national government, and the institu- tion and existence of which is bound up with the prosperity and glory of the British nation. For the distinction of rank and honors is necessary in every well-governed state, as the reward of public services, and the appropriate incentive to great actions. Those who are actuated by a generous emula- tion for such distinction among their fellow-subjects can never be unmindful of the dictates of virtue and loyalty to the Sovereign and to the constitution. Those who succeed by inheritance to such honors, if they may not. surpass or rival the glory of the.ir ancestors, will scorn to disgrace their name. Holding their honors and their position in the slate independently, they will feel an interest in protecting the constitution from invasion by any combinations of the Sover- eign's ministers against the freedom or political rights of the people, or by any encroachment of the mass of the peo- ple upon the due authority of the Crown ; since every advance towards new or arbitrary powers by the monarch, or towards OF THE HOUSE OF LORDS. 87 uncontrollable rule by tbe people, must tend to diminish or overwhelm their own influence. Removed by ^ir wealth, or at least, competency, from all those cares whiWthe neces- sity of earning a livelihood imposes, they have the greater leisure, as well as the great er inclination, to dedicate them- selves to the public service, and to all those departments of liberal education which may best fit them for the affairs of government. Nor is the grand test of national experience wanting to stamp the tried value of such an institution of dignified men, with their distinct assembly, distinct delibe- rations, and distinct powers. For often have the Peers of England proved the firm and successful champions of the people, against the Crown, itself for the attainment and main- tenance of their best laws, and just political rights — and as often have they withstood the folly and fury of the people, whose factions would otherwise have utterly overthrown all government and all law. SECTION V. Of the House of Commons. 3. Lastly, let us inquire into the quality of the third con- stituent part of the supreme legislative council of England — the House of Commons, The members of this assembly are called the Commons^ inasmuch as they are members of the community at large; not having any titles of dignity as Peers or Lords of Parlia- ment, but chosen or delegated by certain qualified classes of the people to represent them especially among the rest of the community, and to act on their behalf. We have seen that, after a certain number obsessions and prorogations of the Parliament composed of the two assem- blies, that Parliament is at length dissolved, and a new Par- liament is to be summoned. The Lords are summoned by a special letter directed by the authority of the Queen to each individual Lord. Let us see how the members of the House of Commons are summoned. This is managed by a similar letter directed to certain officers, having the same name and executing similar duties to those performed by the Sheriff's in India. These Sheriffs are required to hold meetings in their several districts (called in England Counties, into one hundred and sixteen, of which the whole of the British territories of England, Wales, Scotland and Ireland are divided; for the election of one, two, and in some instances more, members for each sut h district ; and they are likewise required to cause certain officers, or head authorities, in certain specified chief Cities and Towns in their several districts to hold like meetings for OF THE HOUSE OF COMMONS. g9 the election of one, two, and sometimes more, members for each such city or town. The number of members, and the districts or cities or towns which at such meetings are to elect, are all expressly specified hy the law. These mem- bers so elected are said to represent the places for rather the people of the places) for which, and at which, they are elected — and are commonly called The, Members for such places The number of members for Counties is 252, that for Cities, Boroughs, and three Universities is 40G. The whole amount of members is 653. There are certain qualifications requisite to make persons eligible as members of the House of Commons — and they are these : 1st. The candidates must be of the age of 21. years. 2nd. Tltey must be subjects born in some part of the Queen's dominions. 3rd. They must not be any of the Supreme Judges. 4th. They must not be persons dedicated to the administration of the national religion. 5th. They must not he any of the persons (such as sheriffs and others) appointed by law to manage the elections. Gib. They must nol be persons connected with certain offices for the collec* tion of taxes. 7th. They must not be persons enjoying any pension by the bounty of the Queen; and if any member takes an office of profit paid hy the Crown, he must there- upon vacate his seat — hut he may here-elected. 8th. They must not have been convicted of any of the more serious crimes. 9th. They must (with certain few exceptions) have property in land to the value of 600£ per annum, to he eligi- ble as members of Counties — and of 300£, to be eligible for any City or Town. The qualifications for /Vectors of members are; 1st, that they should have a certain amount of interest in landed property— according to the nature of that interest. Hut the amount and nature of this interest vary so much, ac- cording to the ancient customs of the several districts and 90 0F THE HOUSE OF COMMONS. places, that it would be tedious, in a general discourse of this quality, to detail all the differences and peculiarities of rights to elect, ' founded on this property. The obvious principle on which this qualification is required, is that property gives some assurance, not merely of independence in the exercise of this important right, hut. also of some cultivation of mind and knowledge of the world — qualities so much needed in the direction of a free and competent choice. But it is equally a constitutional principle that the right of electing should be extended to all classes of the people, as far as is consistent with that competency and independence; and, accordingly, the property qualification is reduced to a very low standard — the mere renting* a house of the value of 10£ per annum being a sufficient qualifica- tion in some instances, or the owning lan*l to the amount of 2£ per annum being sufficient in others, and the merely inhabiting any house as a tenant being sufficient in others. In some few places the right depends on being enrolled as or members of some particular trades ; and in two instances, those of the two Unive>sities (as the great central institu- tions for the education of the superior orders are called) the qualification depends on advancement to a certain, rank among the members of such Universities. Further qualifications are— 2nd. That the Electors shall be 21 years of age. 3rd. That they shall not have been convicted of any of the more serious crimes, or of that of per- jury, or of having been bribed at any Election. 4th. That they shall only have one vote for each distinct property, or other qualifying right to vote. Next is to be considered the mode of Election. This is settled bv special laws, which contain a multitude of pro- visions directed to ensure, as far as human laws can, the unbiassed and nncorrupted exercise of a free, choice by the Electors, according to their own discretion — to afford OF THE HOUSE OF COMMONS. 9][ full opportunity to all who have the right of Election for exercising that right — ami for precluding false or erro- neous claims to the exercise of it. With this view all military persons are to absent themselves from the place of Election, during the time of voting— all Lords of Par- liament are forbidden to interfere, as are various other persons holding offices of influence. These precautions have reference to the exclusion of all undue bias or intimidation. But further and very strict provisions have been made to prevent bribery through the proffer of any gifts or oln ;es of em dument. I have no occasion fur- ther to detail the nature of these provisions, being of so local an interest ; but a feeling of regret is not to be dis- guised (hat the depravity of mankind is too often superior to the utmost legislative efforts to guard against influences of this nature. On the days appointed for holding the Elections, the Sheriffs presiding at. the meetings of their several Counties, and the other head functionaries presiding over those of the Ci -id Towns, declare the purpose of each i ly. 'I hereupon any Elector proposes any person who happens to he a candidate, or whom he supposes willing to become so, which proposition is seconded by another Elector. The same course is pursued for each person nominated as a candidate. After such propositions of the several candi- dates the sense of the meeting is taken by the President calling for a show of hands. If no more candidates are proposed than the place has the right to elect, ami if any number whatever vote by their show of hands for such candi- dates, they are thereupon at once declared duly elected, and the meeting closes. Bui, if there are more such candidates, the President judges from the show of hands which of them have the majority, and declares the election to have fallen Upon such as have such majority. Upon this declaration every candidate, or proposer of a candidate, who is in the 92 OP THE HOUSE OP COMMONS. minority, has the right to demand that the separate votes shall betaken of all the Electors, both present ana absent, who may within the time prefixed for such purpose, come and proffer his vote. And this is a course, in fact, gener- ally had recourse to, when a greater number are proposed than the place can elect— inasmuch as the casual attendance, personally, and show of hands at the meeting can give but little insight into the wishes of the whole body of Electors ; and it may be presumed that each candidate who has any serious pretensions desires that the express opinion of the whole body should be declared. The proffering and record- ing of votes then proceeds — each Elector presenting himself openly in public for that purpose. If required, he must swear to his qualification, every precaution having in the meantime been taken by the course pointed out by law of registering and ascertaining his right of voting. The President of the meeting presides also from day to day at the taking of the votes, assisted by such advisers as he may think fit, and he has the original power (subject to subse- quent appeal) of admitting or rejecting the votes offered, according to the nature of any objections raised. At the end of the time prefixed by law for receiving votes, the numbers voting for each candidate are ascertained, and, according to the majority, the members are declared to be duly elected. The Sheriffs, after receiving these reports from the pre- siding officers of the Cities, and Towns within their Coun- ties, send them, together with the reports of the result of the Elections in their several Counties, to the appointed government office. These reports are termed their /?the substitution of a discretionary and inadequate trial of rights or of wrongs, for that course of trial which has been appointed by law for no other reason than because it ap- pears to be the best. But, still, there are many wrongs and oppressions which are beyond the reach of the laws; there are modes of doing injustice by evading the law ; and there are injuries which powerful men are able to inflict in defi- ance of the law. It is of importance, therefore, that this door for relief should be widely opened ; and that, from the highest political magistrate to the lowest, every person in authority should be aware that he is responsible for every act of his power, even to the meanest individual who should be aggrieved by it. SECTION IV. Of the Board of Control. I am now to advert to (hat body, whose office is appro- priately designated by its title, namely, the Board of Con- trol. I will first shew how it is constituted, and will then notice its functions. The authority of this Board was first created by a Statute passed in the year 1784. It took its rise out of long and violent discussions in the British Parliament on the whole conduct of the Company's Government. A strong dispo- sition prevailed amongst a powerful party in the legislature to new-model the system of the Indian Government alto- gether, and to repose the administration of it in some new constituted body. But, although that proposal was after much contest rejected, yet a very large majority, both in the general Court of Proprietors and in the Parliament, ultimately concurred in the expediency of some measure by which all the governing functionaries of tha Company might be made more responsible to superior authority, by which their proceedings might be checked and superintend- ed, and by which the administration of the Indian portion of the British Empire might be more effectually united with, and made dependent upon, the supreme sovereign povver of the state. Accordingly, this Board, with its important duties, and composed of some of the highest officers engaged in conduct- ing the executive department of the English Government, was appointed. Its powers were further regulaled by a Char- ter Act which passed in 1793. Additional powers were de- OF THE BOARD OF CONTROL. |93 legated by the subsequent Charter Act of 1813: and the constitution and functions of the Board were finally adjust- ed and settled by the last Charter Act bf 1833. The President of this Board, is always, in consideration of his high office, selected by the Crown as one of those Ministers of state, to whose management (as far as depends upon the executive Government of England) the administration of all the affairs of the British Empire is entrusted. He receives a salary for the performance of his duties. The other mem- bers of the Board are — the Prime Minister, the Minister of the Finances, and most of the other Ministers of the Crown, (as standing members by virtue of their offices as such Ministers) together with such other members as the Crown may think tit to appoint. None of these latter members re- ceive any salary. Every member, before entering on the duties of his office, must take the following oath : He " faithfully promises and swears that, as a Commis- " sioner or member of the Board for the affairs of India, he " will give his best advice and assistance for the good go- " vernment of the British possessions in India, and the due " administration of the revenues of the same, according to 11 law ; and will execute the several powers and trusts re- " posed in him according to the best of his skill and judg- ement, without favor or affection, prejudice or malice, to " any person whatever." The meeting of any two or more members constitutes a Board qualified to act/ The President, and in his absence the member next in the or ler of nomination in the list of the commissioners who happens to be present, is entitled to a casting vote, in all cases of equal divisions. The signa- ture of one of their Secretaries to their proceedings gives them formal validity. ]94 OF THE BOARD OF CONTROL. The functions of this Board are, generally, " to superin- " tend, direct, and control, all acts, operations, and con- " cerns of the Company, which in any manner relate to, or " concern, the Government or Revenues of the territories " of India." With a view to these comprehensive objects the Board may have access to all records and papers of the Company, and can call for all requisite statements and in- formation. The general Court of Proprietors are likewise required to submit all their proceedings; and the Court of Directors are required, as we have seen, to lay before the Board all advices and dispatches which they receive from India, and all orders and instructions which they propose to send out to India (except such as belong to a class, which the Board may have exempted from such previous reference) relating to its Government or Revenues. The Board are thereupon empowered, within two months, to approve or disapprove of any orders or dispatches proposed to be sent out, or to revise or alter them. In case of any such altera- tions, the Board must state in writing their reasons at large for such alterations with a view to the Court of Director's making (within fourteen days) such representations as they think fit with respect to them. After considering these re- presentations (if any shall be made) the Board's decision is to be final. The Board may, further, call upon the Court to frame and transmit to them instructions for dispatches to be sent to India on any subject connected with its Govern- ment or Revenues, and if the Court shall neglect for four- teen days to forward to the Board for their consideration such dispatches to be sent out, the Board may itself frame the dispatches and instructions, and require them to be sent out ; unless, upon any representations of the Court, the Board such think fit to alter them. The Board may also send any instructions or orders connected with the making war or peace, or with negociations with foreign Powers or Native Princes, and which they may consider to require secrecy, to the Secret Committee of the Court ; and those dis- OF THE BOARD OF CONTROL, 195 patches are to be forwarded at once by that Committee, without any disclosure in any quarter. And, lastly, this Board has authority to disallow, and cause to be repealed, all laws made by the supreme Go- vernment of India ; and in like manner to disallow of any of those general rules which the Court of Directors are re- quired to frame, for the course of procedure by the supreme Government in the exercise of its powers, and in promul- gating the laws it may pass. The experience of fifty years has so manifested the wisdom wiih which the establishment of this controlling authority was planned, and the advantages which have re- sulted through its means, that the expediency of its conti- nuance for twenty years longer, as provided by the last Charter Act, seems to have been admitted by common consent. It is impossible to point out under any civilized Government, or perhaps to devise, an institution more calculated to ensure justice and consistency in all political measures, and the protection of the people from every species of oppression. The Board is so constituted as that wilh a'l its extensive powers, as well in mere matters of detail, as in concerns of national moment, it acts never- theless under constant and effectual responsibility. It acts in immediate communication with the whole body of the Queen's Ministers; and all its proceedings, in common with their'?, are under the continual review and superintendence of the British Parliament. The President and Members of it are not appointed for life, and their possession of office depends, not only on the quality of their own in- dividual conduct in office, but on that of the general policy of the Ministry with whom they are united. They have no certain private interest to serve ; they have no perma- nency of power to render them reckless. Both interest and power are dependant on the honor of their reputation, and 196 0F TIIE BOARD OF CONTROL. the efficiency of their talents. Subject, however, to res- ponsibilities like these, their authority over all persons connected with the Indian Governments and over all acts and proceedings, done, or proposed in the administration of them, is complete and supreme. They can command the full knowledge of every thing : they can displace all Indian functionaries, from the Governor General himself to the humblest political servant of the Comoany : they can revise, change, and (acting through the Court of Di- rectors) even direct, every measure in the civil, military, or financial departments of the Indian state. As every thing connected with these objects can be done by them, so can nothing be done without them. Still, with all these vast powers, necessary for the unobstructed discharge of its great and innumerable duties, the Board is not an active, but strictly a superintending and controlling body. It cannot correspond directly with the functionaries and offices engaged in carrying on the administration of the Indian Governments. Its organization is not calculated for transacting the extensive business entrusted to the ordi- nary management of the Court. Its occupation is to examine into every proceeding, and to interfere only as occasion may seem to demand. Limited as the practical ex- ercise of its functions is, its powers are unbounded as re- gards the accomplishment of its appropriate duties— the checking that which is wrong, the preserving that which is right, and the advancing that which is expedient. DISCOURSE V. Of the Governments in India. P, RELIMIKAR Y Observations on the subject of this Discourse. History of the Formation and course of the English Government in India previous to the first regu- lating Act of 1773. Of the Progress of the English Go- vernments in India, from the year 1773 until the passing of the last Charter Act of 1833. Of the manner in which the Governments of India are constituted, and of what members these Governments are composed. Of the Method and course in which the Governments of India, exercise their Functions. Of the Powers exercised by the Govern- ments of India : and, first, of the Superintending and Controlling poivers of the Supreme Government. Of the History and nature of the Legislative powers of the Supreme Government. Of other peculiar powers of the Supreme Government. Of the poivers exercised by the Subordinate Governments of India. Reflections on the quality of the System of Government in India ; and notices of some defects. DISCOURSE V. Of the Governments in India. SECTION I. Preliminary Observations on the subject of this Discourse. N. O subject of the English Empire, whether Native or British born, who is settled in India, can be altogether indifferent to the nature and quality of the Government under which he lives — none but those of the most abject condition can rest content in utter ignorance of its scheme — none who aim at a superior station in life, to be useful in the state, and to reap the fruits of a liberal education, can rationally indulge such hopes, without an acquaintance with its course and plan, even in its details. It might be expected, therefore, that a discourse, which apparently professes to open briefly anil clearly to the mind of a Native, or an unlearned reader, an exposition of the political plan of power according to which the Govern- ments in India are conducted, would prove an attractive source of interesting in formation to the general body of the Indian public, and be consulted with avidity by all ranks of the people to whom books have become the means of knowledge. And, if a just comprehension of the frame and scheme of the Indian Governments, which has been built up under the counsels of a succession of the ablest men 200 PRELIMINARY OBSERVATIONS ON THIS DISCOURSE. who have ever engaged in the weighty task of forming and of ruling a state, and of men who under the heaviest res- ponsibility to tqeir countrymen guided themselves by those principles of government which best conduce to the per- manent prosperity of the people — if a just comprehension of the scheme of the Indian Governments, thus construct- ed, could be imparted in a few plain words, suited to the general capacity of even the humbler class of readers, there could scarcely be a national benefit in the power of an individual to perform which could be so worthy of his am- bition. It might serve to diffuse a spirit of attachment to a system of rule which has beyond all others promoted the well- being of the people of this land, and to excite a com- mon interest in its preservation. It might serve at least to protect them from those discontents which so often spring from erroneous views of a country's political con- dition, and are so often founded on the assertion of public grievances which have never in fact existed. For those who are loudest in upbraiding their Government and its measures are not always the most competent to expose what is wrong. These reproaches more commonly flow from such as are unwilling to learn, and incapable to teach. Those, who from accurate inquiry and sound knowledge are induced to cast blame on real evils, are generally as remark- able for their moderation, as for their firmness and earn- estness of purpose. They desire amendment rather than overthrow, and amelioration rather than change. But an exposition of the system and plan upon which the local Governments of India are framed are beyond the scope of a few plain words, or of a brief popular discourse. The student who would gain a competent acquaintance with the mighty machinery, whereby the right's, the peace, and the security of a hundred millions of subjects are maintain- ed in regulated order, must bring to the inquiry a greater store of knowledge than a few hours reading can supply. PRELIMINARY OBSERVATIONS ON THIS DISCOURSE. 201 For— not to mention that course of education through which alone the meaning and application of the appropriate terms used in discussions of this sort can, be learnt— he who would rightly comprehend the nature of the Indian Governments, and judge of their character, must have directed his reflective attention to the circumstances under which they arose, and to the principles on which they are founded. He should know something of the origin and objects of political government ; he should have acquired some information of the former history and condition of this country ; he should have traced and understood the progress of the British power ; he should have gained some conception of that constitutional form of tbe British Government with which the system and course of the Indian Governments are bound up ; and, lastly, he should have inquired in what way the peculiar structure of these Governments has conformed to the ne- cessity of event*, and the state of the Indian community. These are the considerations which have induced me to prepare the reader of this present discourse by others which are preliminary to that which may probably be his more immediate concern : nor can I commend the impatience of that reader who, instead of regarding this and my previous discourses as one consistent whole, shall attempt, as it were, to snatch from the few ensuing pages some vague and general notion of the plan and character of the Governments in India, without the requisite power of discrimination, and without a just understanding even of the language and expressions employed. The knowledge, indeed, of things as they exist, and of effects as they appear, is more or less needful, and can never be useless : as he who knows what is the shape and structure of the earth, or the course of the planets and the system of the universe, or has become proficient in any of the arts of life, will have furnished bis mind with some- thing that may be necessary to him in his occupations, or 202 PRELIMINARY OBSERVATIONS ON THIS DISCOURSE. somewhat that may be a source of pleasure, as well in his private reflections as in his intercourse with society. But such knowledge, as it is imperfect in itself, so is it, compara- tively, unfruitful in improvement. The mind may still he left involved in perplexities, errors, and superstitions. That knowledge only is certain or complete which explains effects by their causes, measures by their reasons, and appearances by their origin : as he can know little of the astronomical system of the world, who knows not by what power the pla- nets move in their courses, and in what way light and dark- ness, cold and heat, revisit the earth. And thus, also, a thorough knowledge of the political constitution of the Government in India is not to be asquir- ed by merely ascertaining who are the local ruling authori- ties, under what legislative regulations they are invested with their powers, and by what course they exercise their functions. He who would gain a certain and complete knowledge of them must inquire into the history, the origin, the objects, and the principles of these institutions — com- paring them with such as they have superseded, and exa- mining them by their conformity to those general principles of government which tend most to the welfare of a nation. It is such knowledge alone that can give ability to judge of the merits or demerits of the existing system of govern- ment, or a capacity to serve the interests of the state in upholding that which is right, amending that which is faulty, and improving that which is defective. Any endeavour to spread political instruction of this quality among the bulk of the people , must be vain. But it is not only a desirable, and a feasible, but a most essential object that it should be disseminated amongst those classes who have leisure and ambition to attain a liberal education, and out of whom are to be chosen such as aspire to fill of- fices and stations in the service of their country. It is PRELIMINARY OBSERVATIONS ON THIS DISCOURSE. 203 from the influence, and talents, and information of such as these that the masses of the population must form their opinions ; and, in proportion to the correctness and accura- cy of political knowledge among the influential orders, is the probability of national peace. For civil distractions grow not so much out of public grievances as out of the misrepresenta- tions of the ignorant and uninformed : neither is there a greater security against the perversions of designing men than in the sound intelligence of those whose common interest it is to oppose them. SECTION II. History of the Formation and course of the English Government in India previous to the first regulating Act of 1773. In tracing the history of that scheme of political power which, in the result, has heen framed for the local Go- vernment of India, the reader will have gathered some information from the two last discourses which it is im- possible to avoid partially repeating. During the first sixty years of the existence of the East India Company, after their incorporation by the Charter of Queen Elizabeth, dated in the year 1600, they exercised no authority which could be properly denominated a Govern- ment, either in England or at any of their settlements formed in India. By that Charter, and another granted by King James 1st, in 1609, to a similar purport, they were in- vested with such powers and privileges as have been already noticed as characteristic of corporations / and they were also empowered to make regulations and by-laws, agreeable to the laws of England, " for their good government," and to impose punishments by fine and imprisonment on offenders against those by-laws. There is reason to believe that an authority of this indefinite nature, expressed in such general terms, was abused contrary to law ; especially by those at a distance. But, as those Charters invested not the Company, or any of their servants, with the power of administering justice, appointing Judges, or holding Courts, we can only consider these powers of regulating, and of in- flicting punishment, as the means of arranging among FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. 205 themselves the course by which they should pursue the object of their institution, namely, their trade — under the same obligation, nevertheless, which bound all other sub- jects, ofappealing to the ordinary tribunals of justice to enforce the observance of those arrangements by ali who were members of the Company. The peculiar nature of the settlements which the Com- pany gradually formed in India — the extent of territories permanently occupied, and of the population inhabiting them, both British and Native, all of whom were their own imme- diate servants — and the distance of these settlements from the mother-country, rendered necessary the establishment of some political government, directed to other objects than the mere management of commercial affairs. The warlike con- tests both by sea and land, not only with the Portuguese and the Dutch, but also with the Native powers, had led to the Company's raising and maintaining INI ilitary bodies, and to the erection of Forts. And, although their settlements were originally founded for the mere purpose of facilitating their means of trade, and for the convenient residence of their commercial servants ; and, although these settlements were properly held under the laws and government of those Native powers by whom they were originally granted — not as the colonial establishments of an independent people — but as the private property of sojourners owing obedience to the supreme authority of the rulers in whose territories they were situate — yet, this position gradually ceased to be recognized, practically, by the Company and their servants. In claiming to be governed by their own laws, and to set up tribunals of their own for settling disputed rights, and punish- ing crimes — in supporting the treaties and right which had been granted to them by force of arms— in fortifying them- Selves within their territories — they acted in all respects as an independent nation. The exercise of such authorities as these is quite inconsistent with the condition of subjects of any state which should permit it. 206 FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. But, although such was the position which had been assumed by the Company and their servants in India, it was not until the year 1661, that these territories were formally treated by the Supreme Government of England as if they had become a component part of the British Empire, and that some course of rule was provided for the government of the people residing therein, as though they were a portion of the subjects of the British Crown. In that year the Company were authorized, by a Charter of King Charles 2d, to appoint Governors to govern the Plan- tations, Forts, and Factories which they had established in India. These Governors, with their Council, were empow- ered to exercise both civil and criminal jurisdiction^ ac- cording to the laws of England. They were further empowered to fortify any places within their limits of trade ; to raise military and naval forces ; and to make war a?id peace with surrounding nations. By a subsequent Charter, granted by the same King in 1683, and by another granted by King James 2d, in 1686, the Company were authorized to erect Courts of Justice, and to appoint a person leaned in the civil law and two merchants to be judges of them ; and also to appoint Courts for the trial of offences committed at sea. Such powers as these comprise all the essential functions of a political government. The Charters conferring them do not, however, attempt to provide any specific plan, or lay down any detailed rules, for the guidance of those in authority who were to exercise these powers. The very general, comprehensive, and indefinite language of them, necessarily, therefore, gave loose to much arbitrary discre- tion, both as regards the extent of these functions of go- vernment, and as regards the mode of administering them. In particular, no express sanction was given for passing laws ; although at the same time the exercise of legislative au- thority could not be considered as clearly prohibited. If any FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. OQ-r such legislative power was granted, it would be difficult to determine what were to be its limits — and no course of draw- ing up or enacting laws was provided. Again j^these Charters are by no means clear, as regards the parties icho are to be subject to their civil and criminal jurisdiction — though they would seem to imply that all persons in the service of the Company, or inhabiting their settlements, were to become so. Hut, if this jurisdiction was to be exercised overall such, indiscriminately, and according to the laics of Eng- land — there was an evident injustice in such a course, as applied to the Natives, and an evident impossibility of making all the laws of England operative in these foreign settlements, as respects the English themselves. By the general rules of the English law the Natives ought to be governed according to their own ancient laws, until altered by the Supreme Government under which they became subjected : and, in foreign countries, Englishmen ought to be ruled only by such laws as were applicable to their new condition. But it is impossible to decide, upon refer- ence to these Charters, how far such general rules of the Epglish law were, or were not, intended to be annul! ."d by them. Besides this, the Governors appointed for those settlements, and those appointed to administer justices with- in them (although provision had been made by the two last Charters for one of the Judges to be learned in the civil law) were men altogether unlearned in the laws of England, if they were not in truth totally ignorant of them. We cannot wonder therefore, that the history of the proceed- ings of these, local governments should proclaim very great abuses in the exercise of the authority delegated — and great deviations from the just laws of England. Audit may be accounted for, although it cannot be defended, (hat one of the Governors of -the Company in England should have written out to a Governor whom he had by his influence ap- pointed over Bombay, '•' that, he expected his orders were to " be his rules of government, and not the laws of England." 208 FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. In these progressive steps towards political power and the foundation of various colonies in India, the Company, it will be recollected, began by establishing various small factories, consisting of warehouses for their goods and re- sidences for their servants, which factories were subsequent- ly converted into fortified towns and enlarged by the grant of adjacent territory. The first factory established was that of Surat in 1612. Over this settlement was placed, under the genera] authority granted to the Company by the Charter of Elizabeth a President, and certain persons to assist him with their advice. This body was denominated, accordingly, the President and Council ; and the settlement at which they assembled came to be termed the Presidency, as soon as other factories were founded and placed under their control. Under the Presidency of Surat were placed all the other factories as they were gradually formed in the Western part of India— namely, Cainbay, Ahmedabad, Gogo, and Calicut. A factory, which soon after 1600 had been established on the Island of Java, subsequently in 1625 formed a subordi- nate factory at Masulipatam, and afterwards in 1638 another at Madras ; where a Fort was immediately built under the name of Fort St. George. But, in 1653, as well Masulipa- tam, as another factory at Hooghly, were placed under the Government of a separate President and Council at Fort St. George, which accordingly became the second Presi- dency constituted in India. After the Island of Bombay was granted to the Com- pany by Charles 2d in 1668, the Presidency of Surat was abolished, and transferred to Bombay. This city was in 1687, declared by the Company to be the chief seat of Government in India : all the settlements in the country, including the Presidency of Fort St. George, the factories already mentioned in the Western portion of India, and the subsequently acquired factories in Bengal, of Pipley, Cossim- bazar, and Balasore, and of Vizagapatam, and Fort St. David, PORMATION AND EARLIEST COURSE OF THE GOVERNMENT. 209 on the Coromandel Coast, being made subordinate to the President and Council of Bombay. This general and con- trolling authority of the Presidency of Bomb'ay does not, however, appear to have continued long to be actually ex- ercised. In 1699, the Company obtained the towns of Calcutta (where a Fort called Fort William was built) and Govindpore; and in 17 1.5, in consequence of the grants of many commercial privileges, and of a considerable district round Calcutta, by the Mogul Fmperor, that city was erect- ed into a third independent Presidency under the name of the Presidency of Fort William, having government over all the Company's possessions in Bengal. From this period the three Presidencies of Bombay, Fort St. George, and Fort William conducted their course of government for many years independently of each other, although in mutual communication ; until, in the progress of events, the Go- vernment of Bengal, as will hereafter be noticed, became vested with a general and controlling power over the other Presidencies, as well as with its own independent authority over the immediate Presidency of Bengal itself. In thus tracing the history of the establishment of the three Governments of India at the three Presidencies of Bombay, Madias, and Calcutta, we find that, from the year 1G00 to 1653, there existed but one Government and Pre- sidency in India, which was that of Surat ; and that its only political powers were derived from the general terms of the Charter of Queen Elizabeth. After the foundation of the Government and Presidency of Madras in 16.53, these two Presidencies still governed the districts and factorie's placed under the respective control by virtue of the same Charter until 16(51, when their political powers were in- creased by the Charter of Charles 2nd. Under these Charters, and those subsequently granted in 16^3 and 1686, these two Presidencies (that of Surat having in the mean time been transferred to Bombay) continued to conduct their govern- 210 FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. ment until the establishment of the Government and Pre- sidency of Calcutta in 1715. Previous to the foundation of this last Presidency another Charter had been granted in 1608 to a new rival Company, in which Charter was incor- porated not only similar political powers and privileges, in greater detail, to those which by the above noticed Charters had been granted to the original Company, but also some more particular rules for the conduct of their government in India. As this new Company, however, did not possess any territories or settlements in India, the Charter granted to them had no effect in regard to regulating the Govern- ments of India, until by the union of the two Companies un- der this same ("barter, and by the surrender of the old Com- pany of all its own previous Charters, this last Charter of 1608 was brought into operation. The union was not ef- fected until the year 1709 : and within six years afterwards the third Presidency of Calcutta was established. From the time, therefore, that the union of the two great Com- panies was thoroughly accomplished, all the functions and powers of government granted to the united Company came to be exercised at these three Presidencies — each of them having its respective subordinate factories — each of them under the administration of a President and Council— and all of them directing their proceedings according to the provisions of the Charter of 1098, and of the Statutes autho- rizing and confirming those provisions. The clauses of this Charter of 1698, are for the most part directed to the formation of the new Company, to the framing rules for its constitution and self-government, and to prescribing the course by which functionaries are to be appointed for conducting its affairs. Indeed it is upon the bases of this Charter that the functions and authorities of the Court of Directors and of the Proprietors, as exercised at this day, are founded. At the same time the Charter de- legated to the new Company, in a more specific manner FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. 21 I than the former Charters had conferred upon the original Company, the commercial privileges and political powers with which they were to he vested. It conferred the sole right of trade. It empowered them to erect and hold and govern Forts, and appoint Governors over territories. It authorized them to make War and Peace with surround- ing countries It conceded the important power of iv.is- ing Military and Naval forces. But the pot le- gislation was restricted within definite and narrow limits — and consisted barely in providing by-laws for regulat- ing their trade, and the conduct of the Company's servants and others engaged in it ; which by-laws could only extend to the infliction of reasonable imprisonments, or fines, for the breach of them, and were required not to be repug- nant to the principles of the English laws. The judicial jut isdiclion to be exercised under this Charter was also made definite, and greatly restricted. The Courts to be erected in India were to have jurisdiction only in certain mailers of minor criminality, and in civil suits connected with trade, or arising out of injuries and trespasses. And no persons were contemplated as subject to the jurisdiction of these Courts, except such as proceeded to India or engaged in trading thereto, or were members of the Company, or engaged di- rectly or indirectly in their service. On the whole, therefore, this Charter must be consi- dered as limiting and diminishing the political powers ex- ercised by the original Company, anil as in some degree tending to subvert that national position of the English in India, which it was the apparent policy of the former ('bar- ters to further and uphold. But, it is to be recollected, that this Charter of 1698 was framed with the view of establishing a totally new Company, and a new course of trade. For this new Company was without any territories, or Forts, or factories in India — and, however necessary might appear the political powers conferred on it, with a 2]2 FORMATION AND EARLIEST COURSE OP THE GOVERNMENT. view to their gradually attaining the permanent means of trade, yet trading, and not colonizing, was the main pur- pose of incorporating the new Company, and the total abolition of the old Company was contemplated. It might be expected, indeed, when the two Companies became unit- ed, and all the territorial acquisitions became added to the united capital of both Companies, that the strength and extent of their political powers would have been increased, with a view to the permanent maintenance of that national position which had previously been founded by the original Company in India. But such a policy seems for the time to have been abandoned. Trade, and not colonization and still less conquest— seems to have been again regarded as the only true and useful object of the English connec- tion with India. Moreover, the powers and authority exer- cised and abused under the old Charters would ill endure the scrutiny of the British Parliament, under whose control the trade with India now came to be placed. These reasons may appear sufficient to account for the future political Government of India having thus become regulat- ed under the sole and restrictive Charter of 1698, upon the union of the two Companies being effected, and to have suggested the surrender by the old Company of those Charters under which they had advanced so far as a politi- cal state in India. Under the provisions of this Charter of 1 60S , the Com- pany continued to govern their possessions and servants in India until the year 1773. Various Statutes passed in the mean while, continuing from time to time all the rights and powers granted by this Charter. Two Charters for the better regulation of the course of administering justice "were also granted by the King; one by George 1st, in 1726, and another by George 2nd, in 1753. But none of these Statutes or Charters introduced any essential alterations in the political powers of the Company, or in their mode of exercising them. The vast conquests, however, made by FORMATION AND EARLIEST COURSE OF THE GOVERNMENT. 213 the Company from the year 1749 up to the year 1765, natu- rally called for the attention and interference of the British Government. Two temporary Statutes ware accordingly passed in the years 1767 and 1769, for securing to the Company the possession and government of the newly conquered territories. Hut in the year 1773, the first great regulating Statute was enacted for the .systematic govern- ment of the British possessions in India. Up to this period the Governments at each Presidency consisted of a President and his Council. The members of the Council to each Government was unlimited ; and they sometimes amounted to ten, and sometimes to but two. There was no prescribed course of appointing them ; and still less was there any regular scheme laid down under which they should conduct their government. No powers whatever of legislation had ever been delegated to those local Governments. There were no Judges expressly ap- pointed by the King, and properly qualified, to administer justice in his name among his subjects ; according to the laws of England ; and as well between the Company itself and others, as between the various persons living under their rule. The Dewanny, or the right of collecting the Revenues of the provinces of Bengal, which had been con- ferred in 1765 upon the Company by the Mogul Emperor, were of so uncertain and indefinite a nature, both as regard- ed political power and judicial authority, that it was impos- sible to say to what the Dewanny rights extended, or under what limitations they were bound. The Governments had no immediate connection with the King's government in England, nor were the Governors in India dependant in any manner on the King's authority. In short the provisions of the early Charters and Statutes, then in operation, were only adapted for the conduct of trading concerns, and the regulation of good order at com- mercial factories established in foreign lands. SECTION III. Of the Progress of the English Governments of India, from the year 1773 until the passing of the last Charter Act of 1833. The Act of 1773 was the first to establish a Governor General and Council over Bengal ; who were also to ex- ercise a controlling direction over the Governments of the other two Presidencies. The first members of this Govern- ment were named in the Act itself — and it was provided that the succeeding members to be appointed by the Company (during the next five years) should have the approbation of the King. It prescribed the course for conducting their proceedings, and laid down in general terms the ex- tent of their political and legislative powers. It provides for the transmission to the King's government in England copies of all their proceedings. It enabled the King to graut a new Charter for the administration of justice ; and prescribed a very ample extent of jurisdiction to be exer- cised by the new Court, the nature of the law to be ad- ministered, and the quality of the Judges, as professors of the English law, who were to preside in it. It further en. acted many provisions for the personal conduct of the mem- bers of Government, and of other high functionaries, with a view to the repression of wrong and misgovernment. Extensive and beneficial as this Act was, in first provid- ing a systematic and detailed scheme for the Government of British India, and the administration of justice therein — it proved eminently defective when brought into operation. It happened that the first members of this general govern- ment differed widely upon the policy to be pursued in pub- PROGRESS OF THE INDIAN GOVERNMENTS FROM 1773. 215 lie measures. The countries over which they ruled were not only in an unsettled state ; but, as no regular method of government had been constituted in them, *and no settled laws prevailed, it was not easy to say what was legal and according to order, and what was otherwise — what was unjust and oppressive, and what was consistent with the general welfare of the people. This naturally gave rise to disputes as to the legality, as well as propriety, of the acts of Government — and such disputes were aggravated by others which put in question the mode of conducting the authority and proceedings of the Government, and the re- lative powers of the Governor and of the different mem- bers. The Act, which had not been prepared in anticipa- tion of the rigorous scrutiny of such disputants, nor, indeed, with any mature investigation of the condition of the coun- try, could little afford a solution to such difficulties as those. A still greater embarrassment, however, arose to all regular and effective government under this Act, from the miscon- ceptions which prevailed as to the extent of jurisdiction with which the Court (now first designated the Supreme Court of Judicature) was invested — and, as the King's Judges were entirely independent of the local Government, a collision between those two authorities on such a subject necessarily produced confusion throughout all its affairs. Into the distraction of those times, both in the adminis- tration (if the government and of the law, it is not expedient in this discourse to enter. It is sufficient to say that they gave occasion to several remedial Statutes, under which the Government of British India was better regulated, and the causes for dissensions gradually removed. In the year 1781, two Acts passed renewing for ten years, and three year's subsequent notice, all the chartered rights and privileges heretofore granted to the Company — regulat- ing the mode of appointing the Governor General and his Counsellors — defining more specifically their powers 0\Q PROGRESS OF "THE INDIAN GOVERNMENTS FROM P73. and responsibilities, and exempting their official acts from the jurisdiction of the Supreme Court— increasing their powers of legislation, with a view to the better admi- nistration of justice in the Provincial Courts, free from all interference of the Supreme Court— and regulating and limiting the judicial authority and mode of proceeding by the latter Court. In the year 1784, the Statute was enact- ed which first established the Board of Control : and by the same Statute various further important provisions were made for regulating the course of government in India. The supreme Government, as well as the subordinate Govern- ments were, each, to consist of a President and three Coun- sellors ; of whom the President of Bengal was denominated/ as before, the Governor General, and the other Presidents Governors. One Commander-in-Chief of all the forces in India was to be appointed, and a subordinate Commander-in- Chief of the forces of each of the minor Presidencies — and these Commanders-in-Chief (when appointed to be members in Council also) were to rank next to the Governor General and Governors, respectively ; but were never, unless specially so appointed, to succeed to the actual government as Governor General or Governor. Other provisions of this Statute it will be unnecessary to notice here, as they were either re-enacted, or modified, or repealed by sub- sequent Acts to which I shall have occasion to advert. In the year 1793, the time had nearly arrived when (upon a three year's notice previously given) the chartered powers, rights, and privileges of the Company, which, in the year 1781, had been renewed for ten years and three year's notice, would expire. It was then resolved by the British legislature to renew all these rights, and delegate the Government of India to the Company for the period of twenty years. Upon this occasion the first of those comprehensive acts passed, which from the extended duration of the grant, and the specific detail of the PROGRESS OF THE INDIAN GOVERNMENTS FROM 1773. 217 provisions for the constitution of the Company itself, and for the scheme of their Government in India, came to be deno- minated the Charter Acts for India. This Act of 1793 is formed upon a review of all the royal Charters and Statutes which had passed from time to time — and, adopting or modi- fying almost the whole of them, it embodied within itself such an exposition of all the Company's rights, powers, and privileges, and of the system upon which the local Govern- ments were to be conducted, as left but little to be searched out by references to the older enactments. Under this first Charter act, which rather consolidated and amended the many previous Statutes for the Govern- ment of India, than introduced any essential change in its plan, the country continued to be governed until the year 1813, when it was made to expire. In the mean while, however, other Statutes passed directed to some further improvements in its administration, without al- tering its general scheme. In particular, the mode of ad- ministering justice was further regulated, and the constitu- tion and judicial powers of the Courts of Justice at Madras and Bombay were enlarged ; and the former was in 1799, made a Supreme Court with similar jurisdiction to that of the Supreme Court at Calcutta. The legislative powers, also, which had previously been confined to the Supreme Government, were extended to the subordinate Governments of the minor Presidencies. But, in 1813, the second great Charter act passed granting all existing rights, powers, and privileges to the Company for a further term of twenty years , and occasion was again taken to modify the course of government in some respects, though without introduc- ing any very essential alterations. From that period until the passing of the last Charter act of 1833, which has de- legated the administration of India to the Company for another term of twenty years, the political powers of the 218 PROGRESS OF THE INDIAN GOVERNMENTS FROM 1775. local Governments were exercised with scarce any variation whatever, according to the rules prescribed in the two Charter acts of 1793 and 1813, and in those other less comprehensive Statutes whose provisions were not modified, or repealed by, or incorporated in these two more general Acts. This last Charter act of 1833 has introduced several very important modifications in the scheme and course of the Governments in India— at the same time it has left the ge- neral plan of Government, as regulated by the two former Charter acts and several other Statutes, and also a great number of the specific provisions of all those Statutes, in full operation. The plan and course of the- Indian Governments has, therefore, to be extracted from an investigation and exposition of all the existing provisi- ons enacted bv these various laws. It would certain- ly be very desirable that all the details of this scheme of local Government should be consolidated into one well arranged Statute. The mind necessarily becomes confused by a reference to so large a mass of various laws, proposed at distant periods, under every change of political affairs, by various-minded persons, and often under the influence of peculiar and temporary circumstances. So many enact- ments for the self same objects, and often for the purpose of mere modifications, but occasionally interspersing new and important provisions, has given rise to numerous repe- titions — and, what is worse, to many variations in the lan- guage of clauses where no difference of meaning is to be surmised. It would be a tedious, and probably an unprofit- able, task to conduct the Native reader through an examin- ation of the purport and tendency of these numerous Statutes, with a view to trace historically the various new provisions, and subsequent alterations from time to time made. The chief and most comprehensive of them have already been noticed for the more accurate guidance of the PROGRESS OF THE INDIAN GOVERNMENTS FROM 1773. £19 learned student who may have occasion to refer to them. The general reader will perhaps be satisfied by a summary and systematic account of the scheme and,, quality of the local Governments of India, as derived from a review of the whole mass of the laws upon which those governments are founded. SECTION IV. Of the manner in which the Governments of India are. constituted, and of what members these Governments are composed. It may be convenient for the purposes of this further inquiry to shew : First, in what manner the Governments of India are constituted, and of what members composed; Secondly, by what course, and according to what method they exercise their functions ; and Thirdly, with what pow- ers these Governments are respectively invested. First. Of these governments, that of Bengal is termed Supreme. It governs the Presidency of Bengal, and exer- cises a controlling and directory authority over the other Presidencies of India, which are now three ; namely, Madras (or Fort St. George), Bombay, and Agra, a Presidency first constituted by the last Charter act of 1833. We will first consider the constitution of the Supreme Government. The Supreme Government consists of a Governor General and four ordinary Members of the Supreme Council, be- sides the Commander in Chief of all the Company's forces in India, in case the Court of Directors shall think fit to appoint him a Member ; and who thereupon becomes an extraordinary Member of the Supreme Council. As this body (except in one particular instance to be hereafter noticed) acts in union, and by a majority, this Supreme Government is termed that of " The Governor General " of India in Council ." The appointment of all the members of this Government CONSTITUTION OF THE SUPREME GOVERNMENT OF INDIA. £21 is in the Court of Directors. But the appointment of the Governor General is subject to the approbation of the Crown, transmitted through the President o£ the Board of Control. The effect of this provision is that the high functionary appointed to this important post— the most distinguished of any throughout the colonial dominions of England — is always selected from those elevated and en- lightened individuals who at once enjoy the gracious favor of the Monarch, the confidence of the executive Govern- ment of England, and a well founded reputation for superior political talents in the estimation of the Court of Directors. The Commander-in-Chief of the Company's forces in India, when appointed to he an extraordinary Member of the Supreme Council, ranks next to the Governor General. His appointment as Commander in-Chief, like that of the Governor General, depends on the approval of the Crown ; for the vast authority entrusted to this officer of the com- mand and government of an army composed of no less than two hundred thousand soldiers, is of too important and confidential a nature to he reposed in the absolute choice of any body of subjects whatever, independently of the Crown. But his post of an extraordinary Mem- ber of the Supreme Council does not require the same confirmation. The Commander-in-Chief is precluded from ever being at the head of the government of the Presi- dency of Bengal, or from ever succeeding to any absolute vacancy of the Governor Generalship of India (unless expressly appointed to succeed provisionally in case of either of such vacancies) — hut, in case of the temporary absence of the Governor General from Calcutta, the Go- vernor General in Council may nominate him, or any other Member of the Supreme Council, to execute his functions of Governor General, during such his temporary absence for the purpose of visiting any part of India, under the designation of the President in Council. 222 CONSTITUTION OF THE SUPREME GOVERNMENT OF INDIA. Three of the four ordinary Members of the Supreme Council are appointed by the Court of Directors out of the Civil or Military servants of the Company, of ten years* standing in their service at least ; and their appointment does not require the approbation of the Crown. But the fourth ordinary Member of the Supreme Council is appoint- ed by the Court merely for the purpose of assisting at the Councils held for the purpose of pa.ssi.7ig Laws ; and he cannot interfere or vote in any other business of Government. Accordingly, this Member is selected from among the emi- nent lawyers of England: and, with a view to the better securing that extent of professional ability (of which the Ministers of the Crown are better qualified, probably, to judge than the Court of Directors) this member's appoint- ment must be confirmed by the approval of the Crown. In case of any vacancy, by death, resignation, or other- wise, in either of the offices of Governor General or of any of the Members of his Council, the Court may appoint, Pro- visionally, any Member to succeed ; so as such successor as Governor General, or fourth Member of his Council, has the previous approbation of the Crown. And, in case no such provisional appointee happens to be on the spot to suc- ceed as Governor General upon any such vacancy, then the senior ordinary Member is to succeed and act until a re- gular appointment is made of a permanent successor. In case no such provisional appointee is on the spot to succeed to the office of an ordinary member, then the Governor General in Council may select from out of the Civil or Military servants any person of ten years' standing to succeed and act until a regular appointment is made by the Court. A vacancy in either of these appointments may occur, not only by death, or a formal resignation, but also by a voluntary departure of either of these functionaries with a view to re- turn to England, or by their being recalled by the Crown, or by the Court of Directors. CONSTITUTION OF THE SUBORDINATE GOVERNMENTS. 223 A temporary vacancy of the office, as well of Governor General as of the Governor of the Presidency may likewise arise by the Governor General himself, suspending his own functions. For it is provided, that the Governor General in Council can, at any time when he thinks it expedient, appoint any one of the ordinary Members of Council to be Deputy Governor of the Presidency of Bengal ; and, on any occasion of his absence from the seat of Government to visit any part of India, he is at liberty, by a lata or regula- tion to be expressly passed for that purpose, to appoint any one of the Members of his Council to act as Governor Ge- neral of India during such his absence, under the name of President in Council. But such President in Council cannot pass any laws, without the assent in writing of the Governor General himself to each such law. Such is the constitution and composition of the Supreme Government of India, under all the emergencies which can arise. Let us now look to the constitution of the subordinate Governments of the several other Presidencies of Madras, Bombay, and Agra. The constitution of these several Governments is the same in all. They each consist of a Governor and three Councillors only ; and are styled " The Governor in Council of Fort St. George," " Bombay," and " Agra," respectively. But the Court of Directors is authorized to reduce the number of Councillors, or to suspend the appointment of any Council- lors whatever, at either of these Presidencies — an authority which has been exercised, as regards Agra — in which case the Governor of such Presidency acts alone, with all the powers of a Governor in Council. When, however, the minor Government consists (as is the case at Madras and Bombay) of a Governor and three Councillors, the Commander-in-Chief of the forces of 224 CONSTITUTION OF THE SUBORDINATE GOVERNMENTS. the Presidency may be one of these Councillors. The others (or all of them, in case the Commander-in-Chief is not appointed to be one; must be chosen from the civil ser- vants only of the respective Presidencies, of twelve year's standing at least. The Governor is appointed by the Court, subject to the approbation of the Crown : but the other three Councillors need not have such approval ; although the Commander-in- Chief, as such, must. When appointed to the Council he ranks next to the Governor ; but he can in no case of vacancy succeed to the office of Governor, unless specially appointed provisionally so to succeed. Should the Commander-in-Chief of all the forces in India happen to come into one of the minor Presidencies of India on duty, he supersedes and takes the place of the Commander-in-Chief of the forces of that Pre- sidency, in Council— if the latter happens to a member of Council, Vacancies in the office of Governor, or of any members of Council, may occur by the same means as in the case of the Supreme Government. And the Court may, in like man- ner, appoint provisionally to any such vacancies ; subject, in the case of the Governors, to the approval of the Crown. In case no such provisional appointee as Governor is on the spot, the senior civil member is to succeed ; and, in case no such provisional appointee is on the spot as member in Council, the Governor in Council may select any Civil ser- vant, who has attained the rank of Senior Merchant, to ac* until a permanent successor is appointed. The Gover- nor of a minor Presidency has no authority to appoint any Deputy Governor, or other President of his Council. There are two other cases to be mentioned in which per- sons may become, or act as, members of either of the Go- vernments in India. One is the case of a default made by CONSTITUTION OF THE SUBORDINATE GOVERNMENTS. OO5 the Court of Directors in appointing a successor, within two months after they have notice of a vacancy of the office of the Governor General, or of any member c/f either of the Governments — upon which default the authority to appoint to any such vacant office falls to the Crown ; and the Court loses also the power of revoking such appointment, or of re- calling the party so appointed by the Crown. The other case is upon occasion of the illness or absence of any member of Council, so as he should be prevented from attending any particular Council held, and the Governor should desire the advice of a full council upon any particular measure then to be considered of. In this case the Governor is at liberty to call in the Provisional Member, or, in case there be none, any Civil Servant of the rank of a Senior Merchant, from time to time, to attend and assist at the Council Board on such occasion. SECTION V. Of the course and Method by which the Governments of India exercise their Functions. Secondly, we have to consider by what course, and accord- ing to what method, these Governments exercise their func- tions : which course and method is the same, as well in the Supreme Government as in the subordinate Governments. All the acts and proceedings of the Governments are done, either directly or indirectly, at meetings of the mem- bers, termed Councils. Their legal validity depends altoge- ther upon their being done in Council —and, accordingly, the form of all their orders and resolutions runs in the name of " The Governor in Council." And it is required, in testification of these acts and proceedings having been done by the Council Board, that they should be signed by one of the Secretaries of Government. But, although such must be the quality of their acts, that they must all emanate from, or be confirmed by, some Coun- cil Board- yet the members of Government are not restricted to any particular formal course of transacting the current business of Government ; provided only that this essential qualification of all their acts and proceedings be observed, namely, thatin the result they all proceed from the Governor in Council. Accordingly, it is usual that propositions and communications be circulated in writing amongst each other, preparatory to any orders or resolutions being discussed or passed at the Council Board ; and a great portion of the business for the consi- deration of Government, arising out of the numerous re- METHOD OF PROCEDURE BY THE INDIAN GOVERNMENTS. 227 ports, applications, references, and addresses to Government from the various functionaries of the state, as well as from private individuals, are in like manner circulated amongst the members of Government by the Secretaries and other officers of Government, previous to any debate or decision come to upon them in open Council. Neither is there any particular form, according fo which, the sentiments of each member of the Government may be expressed, or according to which the final resolution or decision of the Government is to be framed. For each, member can either verbally at the Council Board, or by his signature in favor of or against any resolution, or by any representation at large in writing (commonly termed his Minute) freely, and according to his own method,, deliver his sentiments for the consideration of the Board — and in the more important matters (especially when there is a difference of opinion) these minutes are usu- ally recorded, not only with a view to the more deli- berate and mature attention of the other members of the Government, but with a view to the final notice of the authorities at home. Indeed, it may truly be said, that these minutes are often recorded for the instruction of pos- terity. For among them are to be found a vast number of documents (many of which have been printed) so abounding in maxims of political wisdom, and in information upon all topics connected with the history and prosperity of this country, that they are scarcely surpassed by the public records of any nation. Those who have had access to these excellent works can with difficulty repress the expres- sion of their admiration of the genius and character of those distinguished men — the truest benefactors of this land — who have thus recorded their eminent services to their country and to mankind : and it seems a kind of duty im- posed on the writer of these pages to offer to the veneration of his readers the names of dive, of Warren Hastings, of 228 METHOD OF PROCEDURE BY THE INDIAN GOVERNMENTS. Cornwallis, of Wellesley, of Lord Hastings., of Munro, of Fullerton, of Elphinstone, of Malcolm, and of Bentinck; although their reputation cannot be increased by any notice from him. The Council Board is competent to act when the Gover- nor General or Governor and one Member is present, in all matters, except in the passing of laws; for which latter purpose the Governor General and three ordinary mem- bers of the Council of India at least must be present. It is the privilege of the Governor General or Governor, at every Council, first to propose any measure to be dis- cussed and disposed of — and, afterwards, any of the other Councillors may propose other subjects for consideration. r I he Governor can, however, by his own sole authority ad- journ, if he thinks fit, the further discussion of any such matter proposed by a Councillor to a future day ; but not be- yond forty-eight hours, nor more than twice. The objects of these regulations are two— first, to enable the Governor General or Governor to bring forward such questions with- out delay which he himself judges of the most urgent importance, and to secure timely and calm attention to propositions of doubtful policy — and secondly, to preclude the Governor by his own sole authority from preventing the free introduction, and the certain and prompt disposal, of such questions as any member of his Council may deem worthy of the Government's attention. All measures are passed by common consent, or else by a majority of votes — and, in case of ah equal division, the Governors have a casting vote. If, however, any measure be proposed which, in the opinion of the Governor General or Governor, is of essential importance to the interests of the Company, or to the safety and tranquillity of the state, and expedient either to be carried or to be wholly rejected, and METHOD OF rilOCEDUEE BY THE INDIAN GOVERNMENTS. OOQ the whole Council present shall dissent, from the opinion of the Governor — in this case, a discretionary authority is giv- en to the Governor to carry or reject the measure by his own sole decision. This independent and discretionary authority has been given in consequence of many disputes and contentions between the Governors and their respect- ive Councils which formerly occurred, and which, though usually ending in favor of the Governor's policy and autho- rity, yet greatly impaired the vigour and dispatch of the public measures. But, as, on the other hand, such a power might tend to arbitrary Government, and weaken the inde- pendence and weight of the Council, it has been guarded with cautious restrictions. And, first, the question must be one of the highest emergency and importance, affecting in the greatest degree the public welfare. Secondly, all the members of Government must state their respective reasons in writing — so that it will appear whether, on the part of the Council, their opposition is founded on any factious, or personal, or other than a sincere public ground ; and, on the part of the Governor, whether his decision is actuated by sound judgment, or at least a regard for the public w^al : and all parties will have the best means of hire deliberation on the proposed measure. Thirdly, it is expressly declared by Statute that the Governor, and he alone, is to be responsible for the measure so carried, or for the negative so passed against the measure proposed. Fourthly, this sole authority does not extend to any act which it was not legally in the power of the Governor in conjunction with his Council to carry. Fifthly, three espe- cial case9 are excluded from any such sole decision ; name- ly, 1st, any act in their j'udi vial capacity ; as when adjudi- cating as an Appellate Court upon any matter of right or of crime— 2ndly, the making, or repealing any law or regula- tion — or 3rdly, the imposing any lax or duty. These two last acts of authority can, however (under the provisions of the last Charter act of 1833) only bo exercised by the 230 METHOD OF PROCEDURE BY THE INDIAN GOVERNMENTS. Governor General of India in Council; and, consequently, the restrictions upon them do not any longer apply to the Governors of t.he subordinate Presidencies. It is further to be observed, that this power in the Governor of acting by his sole discretion is not confided to any Governor act- ing during any temporary vacancy ; and that the Court of Directors are authorized to suspend the exercise of this sole discretion, as often, and for as long a time, as they think fit. It remains only to note, under this head, that the Governor General of India in Council may appoint from time to time any place in India at which the Council of India may as- semble ; and, when they shall happen to assemble within either of the minor Presidencies, the Governor of that Pre- sidency becomes an extraordinary member of the Council of India. The Governor General may also, when absent from Bengal, and without his Council attending him, issue his orders and instructions to the Governments of either of the Presidencies, or to any of the officers or servants serving under them ; and which orders and instructions are to be obeyed in the same manner as if they had issued from the Governor General in Council. He is directed, however, immediately to send copies of his orders, so issued on his own sole authority to any such officers or servants, to the Governments to which such officers or servants belong ; and also to send copies of such orders and instructions, whether sent to the Governments or to such officers, to the Court of Directors ; and to state his reasons and induce- ments for issuing them. And he alone is to be responsible for all acts done under such orders or instructions. SECTION VI. Of the Powers exercised by the Governments of India and, first, of the Superintending and Con' rolling powers of the Supreme Government. Thirdly. In the third place we will consider of the functions and powers with which the several local Govern- ments in India are invested, With this view we will first notice those of the Supreme Government of India— and, next, those of the several other Governments, including that of the Presidency of Bengal. For, although the particular government of the Presidency of Bengal is ad- ministered by the self-same functionaries who preside over the Supreme Government of India, and these functionaries cannot consequently act under the control of any local superior, yet, when the members of the Supreme Govern- ment act merely as the Governor and Council of the parti- cular Presidency of Bengal, they exercise precisely the same powers and functions in respect of the Government of that Presidency (with the exception of any reference or obedi- ence to a superior local authority) as those which the Governors in Council exercise over the other subordinate Presidencies. The powers of the Supreme Government of India in the control and direction of the subordinate Governments were originally much more limited than they are at present. Those which were first assigned to the Government of Ben- gal, by the Statute passed in the year 1773, were confined to interferences in those matters only which affected the rela- tions of the other Presidencies with other Native states. The Government of Bengal was to have " the power of O^O CONTROLLING TOWER OF THE SUPREME GOVERNMENT. u superintending and controlling the Governments" of the other Presidencies, in so far that it should not he lawful for them to make, war or peace, or any treaty with any Indian State, without the previous consent of the Bengal Govern- ment ; except in emergent cases, when there might not be time to communicate with the Supreme Government. And it was further provided that the subordinate Governments should constantly transmit to that Government advice of all their transactions in matters relating to " the Govern- " merit, revenues, or interests of the Company." But another Statute, which passed eleven years afterwards, in the year 1784, considerably increased, and at the same time more specially defined, these superior powers of the Bengal Government. It was by that Act provided, that the Bengal Government should " superintend, control, and du (l rect" the Governments of the other Presidencies " in all " points which relate to any transactions" with the Native powers, or to war or peace, or to the application of the revenues or of the forces of these Presidencies in time of war ; and also in all points specially referred by the Court of Directors to such controlling power. And the subordi- nate Governments were directed to obey all orders, whe- ther they might judge them to be on the above points or not, unless they contradicted express orders from the Court of Directors, themselves, which had not come to the know, ledge of the Supreme Government. These contradictory orders they were to communicate to the Bengal Govern- ment, if occasion arose, who would thereupon issue their further instructions. It was further provided, that no subor- dinate Government should declare war or peace, or make any treaty with another state, except in pursuance of an ex- press order from the Supreme Government — unless in cases of sudden emergency. It was soon after considered that even these powers of CONTROLLING POWER OF THE SUPREME GOVERNMENT. O33 superintendence, control, and direction were not sufficient — for, by the first great Charter act which passed in 1793, this power of control and direction was extended, not only to all transactions with other states, the making war and peace, and all treaties — but also, to the collection and ap- plication of the revenues of the other Governments, and to the employment of their forces at these Presidencies, with- out any restriction as to time of war— and the Act further provided, in general terms, that the Bengal Government should exercise these powers in all points which related " to " the civil or military government of those Presidencies." It would be difficult to say what particular measures of government were to be considered as excluded from the control and direction of the Supreme Government constitu- ted by the comprehensive terms of this Statute. But that some acts and powers of the subordinate Governments were intended still to be exempted from the interference of the Supreme Government seems clear from this — that provision is again made, by this Act for the obedience of the subordi- nate Governments, although a doubt should arise whether the orders of the Supreme Government had reference to those points under its superintendence. N\ e may, perhaps, justly consider all the acts of the subordinate Governments in the current administration of justice according to the laws of the country and the regulations of Government, and all their appointments to offices, as exempt from this con- trolling interference, However this may be, the consciousness of the Supreme Government that its controlling powers wore under some limitations, not exactly defined, begat a caution and a re- serve in interfering with the ordinary course of Government in the minor Presidencies, and directed that interference chiefly, if not altogether, to those affairs more specifically noticed in the Statutes which have been referred to — °34 CONTROLLING POWER OF THE SUPREME GOVERNMENT. namely, the negotiations and treaties with Native states, the declarations of war, or the making of peace, and the em- ployment of tho military forces as the general interests of the Indian Empire might suggest. In almost all other respects a general latitude and discretion was reposed in the subordinate Governments to carry on their adminis- tration according to the course provided by the laws ; and subject only to the control and direction of the Home Authorities of the Court of Directors and the Board of Control. The next Charter act, of the year 1813, made no change in the relative authorities of the supreme and subordi- nate Governments ; and for the course of forty years, from the year 1793 to the year 1833, this limited and guarded measure of superintendence and direction continued to be observed by the Government of Bengal. But in the latter year a policy seems to have prevailed with the Minis- ters of England of better uniting and consolidating the Governments of India, and of giving greater consistency and uniformity to all the public measures in the adminis- tration of the Indian Empire. It is probable, also, that it was judged expedient to remove at once all doubt and difficulty as to the extent of the controlling powers of the Supreme Government, by at least enabling it to direct its interference towards all political objects whatever, which, consistently with the powers confided to the local Governments of India, could occupy the attention of the newly arranged Supreme Council of India. The last Charter act of 1833, accordingly provides, in the fullest terms, that the Supreme Council of India shall have the superintendence, direction, and control of the icliole civil 8nd military Government of India, generally — " with t! full power to superintend and control the Governors and " Governors in Council of the other Presidencies, in all c< points relating to the civil or military administration of CONTROLLING TOWER OF THE SUPREME GOVERNMENT. 235 " those Presidencies ;" and these Governments are " hound " to ohey the orders and instructions of the Governor. " General in Council, in all cases whatsoever. There are now no limitations to the Supreme Government's power of interference, either in respect of doubts of the subject- matter on which its orders are to be given, or as regards any supposed contradictory orders from the Court of Di- rectors, or from any other authority. The result, therefore, of this constitution of the Supreme Government is — that, as regards the Presidency of Bengal, it governs the affairs of that quarter of India without any other restriction or control than such as are supplied by the direct provisions of the Statutes which lay down general rules for its measures and course of administration, or which are supplied by the express orders of the Court of Directors, delivered as from themselves, or as communi- cated from the Board of Control. But, as regards the subordinate Presidencies, the Supreme Government of India may either allow of their exercising the functions de- legated to them, without interference, or it may prescribe general rules and principles according to which those functi- ons are to be exercised, or it may expressly and specifically direct, or reject, or annul, any particular measures — in which latter case the members of the subordinate Governments become, in truth, nothing more than the agents or .Ministers through whom the governing authority acts. SECTION VII. The same subject continued : History and nature of the Legislative powers of the Supreme Government. The second peculiar power of the Supreme Government of India is that of Legislation. It may appear expedient to trace a little more at large than has been hitherio done the origin and progress of this power of Legislation in the local authorities of India, which is now confined solely to that of the Governor General of India in Council. All powers of enacting laws or regulations were at first limited, as we have seen, to the Company itself — ihat is to the Directors or Governors of the Company, who had the entire government of its affairs. The first Charter of Eli- zabeth, dated in 1600, having reference merely to the for- mation of a trading Company, and not to a political colony dependent on the British Crown, authorized no other course of legislation than that which might be necessary for the good conduct of all the members and servants of this new trading corporation — and the rules and regulations they were empowered to enact, with a view to that object, were limited to the imposition of moderate fine and imprison- ment, as penalties for the breach of such regulations. This Charter gave no power to try, or to erect Courts for the trial of, such breaches. When colonies had been actually established in various par's of India, the Charters of Charles 2d, and of James 2d, in the years 1661, 1683, and 1686, gave general juris- diction to administer justice according to the laws of Eng- land, and to erect Courts for that purpose. Accordingly LEGISLAL1VE POWERS OF THE SUPREME GOVERNMENT. 937 these Courts were empowered to judge of the breaches of the Company's rules and regulations, and to impose the punishment affixed for such breaches, as w.ell as to try all other civil or criminal suits. But no express extension of the power of legislating for the people of the newly acquir- ed .settlements was conferred on the Company, and still less upon either of the local Governments of India ; although there is every reason to believe that far greater powers of law-making, as well as of law-administering, were in reality exercised under these Charters to the Company, than either they or the laws of England in any way sanctioned. Upon the surrendering all the previous Charters, and uniting with the new formed Company started in 1G98, all the rights, powers, and privileges, of the United Com- pany (and among them, of course, that of legislating) came to be altogether regulated and defined by the provisions of the Charter of that date, and those of the Statutes giving effect to such Charter. The powers of legislation, by these provisions, was expressly limited to the Company itself — and extended no farther than to the regulating the conduct of their servants and others engaged in carrying on their trading affairs, and to the imposing fine and imprisonment for breach of such regulations — which were not to be re- pugnant to the laws of England. These were the only powers of legislation ever granted to the Company — save such as were subsequently delegat- ed to if acting through the local Governments in India. But the acquisition of the extensive territories in Bengal and in the neighbouring districts necessarily led to the formation of some regular scheme for the government of those territories, which should also comprise some authori- ty in the local government of enacting laws. This power was accordingly conferred by the first great regulating Act for the Government of India, passed in the year 1773. 233 LEGISLATIVE POWEHS OF THE SUPREME GOVERNMENT. It is observable, however, that, although the territorial possessions attained by the Company at this period in India, and reduced under the direct administration of their local governments, formed in reality a populous Empire composed of several ancient kingdoms ; and, although the whole civil and military government of all the states was confided to the supreme and subordinate Governments which had been established — yet the pow- er of legislation confided to the local authorities was confined to the narrowest limits. It was a power con- fined to the Bengal Government only, and extended no farther than to t is right and prohibiting what is wrong, there is no greater certainty of the prevalence of true justice, 314 EVILS OF DEFECTS IN JUDICIAL PROCEDURE. than there is the certainty of wisdom without learning, and of integrity without any checks upon corruption. If it. were conceded that the utmost efficiency in point of intellectual power, and the purest moral sense, should characterise the judge, yet, in the absence of any regulated system of procedure, would his ablest efforts often be thwart- ed, and as often be encumbered, with doubts, delays, and difficulties. When every suitor or accuser can have access to the ear of the judge in whatever manner and by what- ever course his own views of his interests, his own cunning, or his own excited feelings, may prompt — no common rules existing for the equal restraint and equal instruction of all — these two results may be expected : first, that the judge must be continually exj osed to unfair attempts to bias his mind ; and, secondly, that his examinations will be loaded ■with irrelevant inquiries leading to no definite end. Hav- ing no guide as to what statements he ought to receive, and c what to reject, or when and how they are to be delivered to him, or by what course they are to be made known to and answered by the opposite party, he must admit alt repre- sentations, or else run the risk of repressing those which may be the most important. Hence arises that custom of private petitioning, so common among people whose laws are not administered according to any settled rules or forms. Hence all those arts and contrivances, by which the design- ing and dishonest seek to create a secret influence, are en- couraged. The impartial, and conscientious judge will, indeed, resolve to deal openly, and may disclose to each party every act done and every allegation made. But it will then be- come obvious to what confusion and imperfect results such a course of indiscriminate hearing and examination would lead. As the matters alleged on each side are likely to be numerous, indistinct, and various— so must the points to be proved be as various and uncertain also. It will be impossi- ble for either party to know which of them may be consider- EVILS OF DEFECTS IN JUDICIAL PROCEDURE. 31. ed altogether unimportant, and often difficult to know which may be the most important to be established. Mew matter for enquiry may continually be advanced, which either side may require time and opportunity to answer or disprove. There being no settled rules for the reception or rejection of evidence, the parties can never know beforehand what will be admissible, and what not. Thus it will be impossible that either party can be certainly prepared at the time of tri- al, either as regards the nature and extent of the testimony he ought to adduce, or the quality of the witness who may be allowed to testify. Reference must be made to the judge for directions at every step — and he becomes alternately the adviser of each party, instead of the indifferent arbitrator between both. Much more might be said in exposition of the mischiefs of a mere discretionary course of administer- ing the law, but it needs some illustration by detailed exam- ples to make them thoroughly comprehended. To give a general notion of the nature and-objects of a regulated plan of judicial procedure is all that can be aimed at in a. discourse like this. SECTION XIV. That the laws of a country ought to depend on certain general principles, and, be arranged according to some system — the knowledge of which forms a Science. All knowledge of which (he details can he reduced under certain- gei rules, founded on rational principles, becomes a science. As jurisprudence, which inculcates the laws of laws, or (he principles on which all laws for the clue a< ition of justice ought to be founded— (which principles fire derived from observation on the na- ture of man in sojciety, and on the qualities and tendencies of political Government) -must itself be a science, so, also, must a knowledge of the few or rules of justice, as estab- lished in every free and civilized nation, become a science. The construction of a body of laws, whereby the rights of property may he secured, and the person may he protected from injury, is no more than the adaptation of the princi- ples of administrative justice to the affairs of man in so- ciety. Among a savage people, without any form of con- stitutional Government, among whom there exist but few- rights of property, and the only personal injury to be pro- vided against is corporal violence, the rules of justice are necessarily very scanty. Under a despotic Government, where arbitrary will decides all rights, and pronounces upon all wrongs, the laws may, also, be simple and few — for under such a Government no man can claim any thing as surely and independenlly his own, and every man is expos- ed to suffer without possibility of redress what some other may choose to inflict. But under constitutional Govern- ments, and among a people abounding in all the commod- Or JURISPRUDENCE AND LAW AS SCIENCES. 3^-7 ities and wealth which go to make up the resources and enjoyments of civilized life, I he case is very different. Among such a people we roust hear of property in land, and the various modifications of such property — of property in an infinite number at.d variety of goods — of descents and successions — of transfers, conveyances, and contracts — of differences in rank and condition, giving rise to dis- tinctions in rights and privileges. Under Governments where the life and the liberty of the subject is precious, and his rights of property held sacred, no man can be deprived of either without careful and regulated inquiry, and without the fullest means afforded of defence. Hence, among free and civilized nations, the laws and rules of justice cease to be obvious to every man's plain uninstructed understanding, or to be dependent on his uncontrolled discretion : they be- come multiplied in proportion to the amount and variety of rights, and to their progress in freedom and wealth. The knowledge of the law necessarily becomes an object of la- borious study— for the judge must decide, and he who would be an adviser and practitioner in the law must perform his task, not according to their own crude uninformed notions of what is right and wrong, but from the suggestions of a mind stored with a vast mass of distinct rules, and with an insight info the principles on which those rules are founded, and also with a capacity to apply these rules and princi- ples to the infinite variety of circumstances, which in the dealings of mankind give occasion to contest and doubt. It is the common complaint of the vulgar, and of such as do not weigh such considerations as these, that the admi- nistration of justice according to systematic law, is tedious, troublesome, and expensive. Such complaints do not. arise among barbarous and misgoverned nations — for where there is little property, or where the greater share of it is mono- polized by the ruler himself or his favorites and sup- porters and despotic power orders every thing, there is gig OF JURISPRUDENCE AND LAW AS SCIENCES. little occasion for litigation, or suits, and wrangling. But these complaints prevail most where the rights of the people are most numerous and various, and where the rules for their support against violations are most cautious and precise. In other words they prevail most in proportion to the prosperity, wealth, and ci- vilization of the people among whom they arise. But, if all these rules and forms of justice — leading as they do to harassing delays, trouble, and expence, as well in the establishment as in the defence of rights — are considered with the relation they bear to the security of property and of the person, and to the degree of freedom enjoyed by the subject under a wise and liberal Government, they- will be found to constitute the necessary result, and the price which must be paid for such security and freedom, on which the prosperity and wealth of a nation must depend. The ordinary and unreflecting portion of mankind, who view with a partial eye their own interests, and (heir claims or wrongs when, they happen to be contested or denied, are impatient at all restraints upon a speedy decision, and at all forms which stand between them and what they deem justice. But, it should be recollected, that these same forms of justice, which are to them so irksome and inexpedient in cases which in their partial view may erroneously appear to be plain and simple, are the safeguards against such as may be put forward by the crafty and dishonest, and a pro- tection against judgments given according to no fixed rule of right, but according to mere wayward and wil- ful discretion. If we enquire among what nations the course of judicial decision is the most speedy, cheap, and conclusive, we shall assuredly discover it among those lawless tribes who remain nearest to the state of nature, or among those nations, in which the bulk of the people are little better than slaves. Whether in the horde of Tartar savages, amongst whom property has scarce a name, or under the OF JURISPRUDENCE AND LAW AS SCIENCES. 3}$ most ancient Mussulman Governments where the word of the Prince or Magistrate is the inflexible law, every matter of dispute is quickly and finally settled. The judge de- cides as he pleases — he is guided by no rules — and he is swayed by no responsibility. It is indifferent to him how he decides, so that he determines the case — and obedience is equally and peremptorily exacted, let the decision be what it may. To desire such a measure, and such a course, of cheap and speedy justice, is to desire such a condition of the people as can alone admit of it. It is to desire that there should be but few rights, and a small amount of pro- perty to decide about — it is to desire political slavery rather than liberty — and that right and wrong should become mere matter of chance. SECTION XV. Of the quality of the English system of Law, The English nation enjoys a most eminent degree of political freedom, because its Government, is settled upon just principles and constitutional rules. Its laws and rules of justice under which that freedom is preserved, under which property is secured, and the person is protected, have long ago been laid down and fixed — growing up under the watchful care of learned, able, and virtuous men throughout many ages : Under these laws the national wealth, and the national power, has increased to a height beyond that with which any Empire on the earth has hitherto been favored. Amidst the many gradations of rank and condition — amidst the infinity of rights, and modifications of rights, which these gradations and the accumulation of pro- perty, with its endless variety of uses, have given rise to — and amidst the complicated and numerous causes for controversy naturally consequent on this position of society— -the law of the land lias provided the cer- tain means of assurance and redress, applicable to the peculiar circumstances of almost every case. Jurispru- dence has become a science, as well as the law depending on its principles ; to the study and exposition of which men of cultivated understanding devote their lives. For the learn- ing, as well as the integrity, not only of the judges who admi- nister the law, but of the counsellors and practitioners who advise or assist in its efficient operation, thqre is every secu- rity which interest, and a sense of honor, and a love of reputa- tion can supply. It may be supposed, therefore, that among such a nation the administration of justice must be eminent- OF THE ENGLISH SYSTEM OF LAW. 321 ly exact — that able and upright judges have but to open their eyes and see — that vexatious or ignorant litigation must be vain, and therefore likely to be rare — and that wrongs should diminish in proportion to the certainty and adequacy of retribution. How happens it, then, it may be asked, that so great a number of legal Courts, with every variety and quality of jurisdiction, should be spread over the land — that lawsuits, controverted claims, and criminal punishments, should abound wherever the English law pre- vails—and that accusations of its uncertainty should be as common as those of its delay and expence ? That much of this accusation arises from ignorant clamour and misconception is an assertion so easily made that it will meet with little attention, unless borne out by some proof ; but to exhibit decisive proofs would lead to a lengthened discus- sion. Considering, however, that all human institu- tions and regulations run into abuse, it will deserve remark how seldom occasions are taken to propose before the legis- lature, amendments and alterations in the settled laws, and how few are the calls for such legislative interference except with a view to the correction of those abuses from which the most perfect judicial system can never be exempt. An ex- planation is sometimes offered, that lawyers and judges gain by the uncertainties, defects, and abuses of the law ; bnd therefore they will uphold them, having as a body power f nough to control the united voice of the people, and the supreme legislature itself. Such an explanation implies that a large majority of these functionaries are among the most mercenary and dishonest of mankind— that their cunning and their talents are more than a match for the general sense of the nation — and that their influence in the state surpasses that of the executive powers ofGovernment backed by the sup- port of a i oppressed people. How far this class of functionaries may merit such a character, whether of corruption or of po- litical power in the state, may perhaps be sufficiently an- qOO OF THE ENGLISH SYSTEM OF LAW. sweredby a reference to public opinion— but it is certain that from this class have sprung all those laws which have sewed most in fixing and preserving the free constitution of the Government, and the most important of those also which concern the due and equal administration of justice between man and man. Indeed, it would be very difficult to shew how the personal interests, any more than the reputation of those distinguished lawyers, whose opinions have influence in the state, can be advanced by the maintenance of profes- sional abuses. A more rational and consistent explanation why the legislature is far less occupied in correcting the laws as they stand, and so much more in adding to and im- proving them, according as the new creations of pro- perty and the continual changes in the condition of the people suggest, may perhaps be this — that those who un- derstand thoroughly the reasons and principles of the En- glish laws, and their operation, seldom see occasion for es- sential alterations ; and thftse who yield to their own ill-con- sidered notions or those of others, in seeking their amend- ment, either find the task they undertake beyond their men- tal strength, or become convinced, upon calm investigation and the just reasoning of such as are most competent to judge, that their projects are mischievous, and their corn- plaints without foundation. It would be an undertaking not more curious than profit- able to compare the operation and results of the English system of law, with those of the various systems adopted in other civilized countries— with reference, not to its effects on political freedom (which, however, is one important ob- ject of laws) — but merely with reference to those main ob- jects of administrative justice between man and man — the security of property, and the security of the person. As far as regards the expence of litigation for the recove- ry of rights, and for the prosecution of crimes, it may be al- OF THE ENGLISH SYSTEM OF LAW. 323 lowed that it is an evil attending the administration of Eng- lish law far surpassing that which attends the course of administering justice in most other countries in the world. I3ut the expence of litigation increases in proportion to those other characteristics in the administration of the law which tend most materially to the ends of justice. It increases in proportion to the amount and precision of those rules which ascertain rights, which protect every man in the enjoyment of them, and multiply the means of defence against unjust de- mands and accusations. It increases in proportion to the in- tegrity, the learning, the competency, and the honorable sta- tion in society, of those who dedicate themselves to profes- sional and judicial duties. When objects of this nature are the real and only causes of increased expence, they more than compensate for an evil which thus becomes of unavoidable necessity. The absence of such causes will ensure cheap judgments, but not cheap justice : and it scarce needs to be noticed what an encouragement, to vexatious and vindictive litigation must be the opportunity afforded of embarking in it without personal trouble or charge. And, let it be further observed, that the cheapness of judicial decisions is not al- ways and necessarily in proportion to the absence of such causes of expence as these I have enumerated. It is assert- ed by a writer on the judicial system of India that litigation in the Sadder Courts of India is, in the result, at least as expensive as that in the Supreme Courts. But it will hard- ly be said that the above noticed causes of expence apply in an equal degree to the system of law as administered in both those classes of Courts. In regard, however, to the comparative prevalence of crime, and of delays and uncertainties in the administra- tion of the law, under the English judicial system, and under that which obtains in some other countries, an inqui- ry has been madp, the results of which deserve attention and command confidence. It has been ascertained that in 324 QF THE ENGLISH SYSTEM OF LAW. Sweden, which there is no reason to distinguish as the worst governed of European nations, or the least advanced in civilization, the convictions for crimes, punishable as such by all civilized Governments are, compared with those in England, as four to one at least. (Laing's Travels in Swe- den, 1838.) It has been shewn by a writer on the judicial system of India, as regulated by its local Governments for administration in the provinces, that the time occupied, on the average, in obtaining a decision is at least four times as long as that expended in the average course of litigation in England; and that, whereas scarce one judgment out of thousands under the English law is appealed against, and not one in six reversed or even altered, out of those which are appealed, no less than one-half of the original decisions are overruled or amended by the Courts of Appeal, under that administered in the Indian provinces. And we may be sure that, when such is the case, almost every decision by the original Court either is appealed against, or would be so if it could. SECTION XVI. Of the causes of Litigation, independently of the quality of Laws. Thus much I have thought it not impertinent to observe in proof of the misapprehension of those who inconsiderately urge peculiar defects and faults in the English judicial sys- tem, but it will be more to the purpose to advert to some of those causes of litigation which must ever prevail, not only under that system, but under the most perfect code of laws that human wisdom can construct. Among these causes are the human passions, which will never cease to breed violence 'and fraud ; and which even repels the bulk of mankind from making voluntary compen- sation for injuries that cannot be denied. There are, fur- ther, the mistakes and uncertainties, as regards facts. Such may arise from corrupt evidence, inciting to unjust claims, or defeating those which are just — or from deficient evidence, which may induce as "well the wrongful as the rightful claimant to hold by what he may happen to possess — or from erroneous evidence, which may lead the most up- right to litigation under a misconception of right. To these causes must be added the long list of those springing from the frequent necessity of seizing and distributing property by legal processes ; as,, on occasions of insolvency, or of the con- fiiction of numerous creditors of the same party, or of resort to mortgaged property for the satisfaction of debts. And, lastly, among the principal causes of necessary litigation must be enumerated the doubts in the application of even the plainest rules of law, according as complicated cases, and new combinations of circumstances arise. When this 326 0F THE M0ST COMMON SOURCES OF LITIGATION. large amount of the unavoidable sources of litigation is subtracted from the whole sum of those which enter into the administration of justice under the English law, it will pro- bably be found that but a small portion of that litigation is derived from such sources as the uncertainty, or obscurity, or defects of the law itself, or the unrighteous claims and accusations which such a state of the law is calculated to beget. It is, indeed, rather a subject of surprise that, among a swarming population enjoying so large a share of personal and political freedom — among whom the smallest aggression against the person or the property has its speci- fic legal remedy— among whom the presumed innocence of every man is supplied by the amplest means of defence-r- among whom commercial transactions are of such unbound- ed extent, and property subdivided and qualified in a thousand ways— the various and complicated rights of every individual should be so exactly adjusted and secured, as to lead to so little litigation as does actually prevail. We must rather look for proofs of the demerit of any judici- al system in the amount of erroneous and contradictory judgments, than in that of the number, duration, or ex- pence of the causes tried. SECTION XVII. Of the expediency of reducing the laws of a Country to a systematic Code. It must be allowed, notwithstanding what has been said, that the administration of justice according to the laws of England is not only encumbered, with many imperfec- tions in details, but that the legal system itself stands in need of amendment. In the application of the existing laws to the infinite variety of new cases, and new combi- nations of circumstances, the decrees of the Courts neces- sarily multiply to a vast extent. As each of these decrees is an authority and precedent for like judgments to be pronounced in similar cases, they become so many rules of law. Bat, since it is seldom that two cases which give rise to controversy can be exactly alike in all their circum- stances, the distinctions which exist often occasion differ- ences of opinion, where no difference in principle really exists — and thus arise uncertainties, and even contradictions, in (he very rules of law themselves. [Moreover, not oidy e rules of low, but also those express laics which the supreme authority from time to time enacts, and which are often confined to peculiar evils, or directed to tempora- ry objects, gradually become inapplicable to the altered times and condition of the people. The accumulation of these rules of law involved in judicial decisions upon indi- vidual cases, and of these express enactments of (he legis- lature suggested, from temporary causes, grows al length to be too vast for the grasp of the human intellect, and the ssiiy becomes apparent of correcting inconsistencies, and of digesting and arranging the whole heap under gene- 328 EXPEDIENCY OF REDUCING LAWS TO A CODE. ral rules and principles. In England this task, how- ever ably and skilfully fulfilled, has been left to the labour of private authors and compilers—but such a digest of * the national law is the more appro- priate task of the supreme legislature ; not more for the sake of ensuring uniformity and completeness, than for that of fixing upon that law the stamp of authority. This it is to reduce the laws of the land to a systematic code— a work which, as it is the most laborious and the most difficult in which the powers of the mind can be engaged, so is it that which most conduces to the perfection of administrative jus- tice, and the consequent prosperity of a people. It may be expedient, therefore, in concluding this discourse, to point out those general characteristics in the prevalent laws of a country which suggest the reduction of them into a code. The reasons which should induce the formation of the laws of a country into a regular code, are — 1st, that they have become obscure through antiquity, or through changes in times and the circumstances of the people — 2ndly, that they are not easy of access ; as when they are dispersed; amongst various treatises, argumentative disquisitions, re- ports of judgments pronounced, and enactments of the legis- lature comprehending many unconnected subjects — 3rdly, when the laws have become bulky and numerous, ho as to abound in repetitions, and to comprise a multitude of rules and regulations upon the same topics without any substan- tial distinctions— 4thly, when laws have been ill-prepared through the incompetency of the framers, and ill-arranged through neglect ; whereby confusion and doubts are chiefly caused, and contradictions insensibly creep in — and, lastly, when new laws have been prematurely introduced, before the state of a country, or the condition of a people has be- come adapted to the change ; as when a new Government introduces its own laws into a foreign country, without due consideration of the peculiar national customs and habits. EXPEDIENCY OF REDUCING LAWS TO A CODE. 329 All these reasons for a reform in national laws, with the exception of the last, do with more or less force apply to the English judicial system ; and it is a mark, of the en- lightened views of the present age that this should be seen and acknowledged. The extensive amendments, and con- solidations of various distinct masses of the English laws, which these views have lately led to, gives an earnest of fur- ther efForts towards accomplishing the greatest and most beneficial of all human undertakings — the systematic digest of the whole body of the national law. So vast and compre- hensive, a labour, requiring the united and long continued exertions of many powerful minds, may appear to surpass the strength of any single effort of Government , and per- haps it may be wiser to await the gradual correction and digest of each distinct department, than to attempt at once an uniform arrangement of the whole body of the laws. When, however, the cautious vigilance, the copious remedies, and the ample securities, which' pervade the administration of justice under the English law, are referred to as the ef- ficient causes of its practical merit as it stands, it should be recollected that the more plentiful the materials are of a legal code, and the sounder the principles on which they depend, the more is the construction of a code facilitated, and the more perfect may it be expected to prove. Rut, if most of the reasons I have above enumerated have more or less application to the state of the English law, they all of them more unquestionably bespeak the expediency of a digested arrangement of the laws which are to prevail in governing the administration of justice in India. The mate- rials, indeed, of such a code are far more scanty, and the principles of the existing native laws must be acknowledged to be far less sound. But if the construction of a body of wise and beneficial laws for this country becomes, therefore, the more difficult, it becomes also the more necessary. The original laws of the various tribes and castes, living 330 EXPEDIENCY OF REDUCING LAWS TO A CODE. under the guidance of different religious doctrines, under various forms of government, were, like the earliest and imperfect laws of all other nations, identified with their precepts of religion — and so they still remain — although the rights and conduct of men in civil society have but in few respects any natural connection with their duties towards the deity, their forms of worship, or their tenets of faith ; and, amidst the great differences in such forms and tenets, it must appear obvious that no system for the administration of justice ought to be made dependent on the casualty of any particular doctrine of religious belief. It may be rea- sonably surmised that, in ancient times, the distractions of political change, and the oppressions of petty rulers, as they may have retarded the advancement of the people of India in civilization, so they may have precluded the improve- ment of their laws : and we know that in more modern times foreign conquests, and continual internal wars, must have produced such their usual results. The ancient laws, therefore, which have thus remained in their original im- perfection, have gradually become more and more loaded with obscurities, vagueness, and uncertainties, while com- ments, constructions, and arguments have supplied the place of express laws, sanctioned by just principles. It must be admitted that, as the English sway has extended, and its empire become consolidated, much has been attempted towards regulating the administration of justice in India ; but it must be admitted, at the same time, that the at- tempt has been made by those who could learn but little to the purpose from the native laws, and who brought but little learning,either in jurisprudence generally, or in the laws of their own or any other cc ntry, to bear upon their task. * It has been, perhaps, upon some such considerations as these, and certainly upon a deliberate survey of the state of the law, and the defective course of administering justice throughout the Indian empire, that the supreme legisla- EXPEDIENCY OF DEDUCING LAWS TO A CODE. 33I ture of England has, under the last Charter act detailing the scheme for the future government of India, entrusted to a body of Commissioners the duty of collecting materials, and reporting suggestions, with the view to a digest and consolidation of the judicial system of the country, What- ever success may attend an undertaking involving great difficulty and labour, we may hail its policy as that of a beneficent Government making the prosperity of its people the rule of its measures, FIJS/ 1 S. INDEX. Absolute Government, (Vide Arbitrary.) Administrative Justice, what '274. Agra, (Vide Subordinate Governments.) Ahmedabad, 13-1,208. Arbitrary Government, Defects in that form of Government 33, How :d in what respect such form sometimes beneficial 34. May be in many as well as in few 30. Evils of (14. Laws simple and few under 310. Archbishops, 82,83. Army, (Vide Military.) Aurungzebe, his dealings with the English 135. His power in India 141. Balasore 35,208. Barbarous Nations, addicted to revengeful punishments 299. Among them laws simple and few 316,318. Bengal, when first settled 134,135,208. Conquests of the English in 15G. Presidency of, first founded 2UU. Government of, en- gaged in disputes 215. Bills, of Parliament what, and how brought in as Statutes to be passed 101. Reading- of, what 101. How assented toby the Crown 102. Bishops, 82,83. Black Hole of Calcutta 157. Bourn of Control, (Vide Control.) Bombay, when first granted to the Company 134,208. Made Chief Presidency in India 208. Limit! of the Town of, fixed by the Government of Bombay 254. (Vide Subordinate Govern- ments.) Bbabmins, their unlimited and uncertain authority according to the Hin- doo Sbnsters 28m BuiTiaii Subjects, meaning of the distinction between British and Na- tive Subjects 2G0. Cadets, who 183, 2JI. Calicut, 13-1,208. Calcutta 134,209. Taken L67. Black Hole of 157. Limits of the Town of, fixed by Bengal Government 254, Cambay, 134,208. Cate of Good Hors, first voyage to India by 128. n INDEX. Carnatic, conquests of the French in 150. Nabob of, becomes depen- dent on the French 150. Rival Nabob of, set up by the Eng- lish 156. And established 156. Certainty in Laws, why necessary 285. In punishments more effieaci' oils than severity 302. Changes, in Political Government, how necessary 40. By whom to be introduced 41= How changes in Government produce a cer- tain portion of evil 41. Why they should be gndual 41,42 People of warm countries averse to changes in Government 43. Charles 2d, his Charter to the Company 134,209,236. Charities, under the protection of the Crown 112. Charters, meaning of the term 130. Abuse of the authorities granted by 204. Nature of the authorities conferred by the early Charters 206. How .lefectiie in establishing a regular Go- vernment in India 206. Charter Acts, what 217- (Vide Elizabeth, Charier, James, William, George.) Checks System of, in the Government of India 261. Church (Vide Prerogatives.) Clive, his victory of Plassy 157. Civil Service discussion as to the mode of appoin'ingto 184. Defects in the system of appointing to 184. Advancement of Natives to appointments made in 189. By whom appointments in In- dia made 250. Civil Code of Rights, what 292. How distinguished from Criminal Code 294. Code when and why laws of a country should be embodied in a systema- tic Code 327. The reasons inducing the formation of such Codes 328. Required for the English Laws, and more so for the Local Laws of India 329. (Vide Civil Code, Criminal Code.) Commanders-in-Chief how appointed 183,216,221,224. Their rank and limited authority 221. Commission, Law Commission for consolidating the Judicial System of India 330. Committees of Court of Dihectors, have no powers in themselves 177- (Vide Court of Directors.) Commons Hocsjb of, what 88. Number of Members, qualifications of Members 89. Of Electors 89. Mode of electing Members 90. Has sole power of Taxation 96- Influence of in the English Government 98. Freedom of Speech 1 00. Mode of passing Acts 100. President, or Speaker of 100. Power of bringing charges against great public delinquents before the House of Lords 104. (Vide Parliament, Members, Electors.) Company, what the East India Company is 119. Meaning of the term Company 123. Origin and formation of the East India Com- pany 128,204. Quality of Associated Companies for trading 125. Of Companies which are Corporations 130. East India Company a Corporation 130. Trade their sole object for many vears 133,134. Their Charter from Elizabeth 131,204. Their" Charter from Charles 2d 134,209. Their exclusive rights of trade invaded by a rival Company 136. Newly orga- nized and united with the English Company 136,137,210. INDEX- ut Charter from William 3d, 1S7.237. Surrender their previous Charters and are governed under the Charter of William 3d 137,210. . Their trade gradually abolished, the effects of this 159. Conquest, all schemes of repudiated by the English Governmant 247. Control, Board of 192 Origin of 192. Members of 193. Oath of the Members 193. Powers pud Functions of 194. Beneficial effects of 105,216. Constitution ok England, what, and how established 71,73. Corporations, what 130. East India Company a Corporation 130,204. Cossisibusar, 204,135,208. Councillors (ViJe Members in Council.) Councils, course of proceeding at 226. All Acts to be done in name of the Councils 216. Minutes in Council, what 226. (Vide Members in Council ) Counties Number of, in Great Britain and Ireland 88. Countries External Condition op, necessarily affects their form of Government 43. Influences, manners, habits, and feelings. 43 Court of Proprietors, what, 163. Course of proceeding at 763. Mode of voting 163. Their Legislative powers 104. Court of Directors, what and how held 174. Chairman and Deputy Chairman, who, and kheir duties 174. Committees IJo. Of Correspondence 175. OfSeereay 175. Of Accounts 176. Of the Treasury 177- Functions of the Court 179. How their authority is Supreme 179. Powers of Court restricted and guided by Laws ISO. How all their Proceedings controlled by Board of Control 181. Powers of the Court in suspending the sole authority of Governors in India 132. Of the appointments in their gift 18-'. (Vide Directors.) Coubt of Judicature, Supreme Court in Bengal established 215. Its disputes with the Government 215. Supreme Courts at Madras and Bombay established 217. The powers of the Supreme Courts formerly of, rejecting regulations 240. This authority repealed 245. These Supreme Courts not to be abolished by Supreme Government 2l0. Regularly constituted Courts of Law a necessary portion of Judicial Procedure 300. How Courts of Law should deliver their judgments 310. Rules necessary for rectifying their judgments 310. Courts MARTIAL on Natives (Vide Regulations.) Criminal Code, what 292. How distinguished from Civil Code 205,296- (Vide Punishment.) Crown (Vide Queen, Prerogatives.) Cl'ddalore, Settlement of 153. Despotic Govfrnmknt (Vide Arbitrary Government.) Delay, in Punishment reduces its efficiency 303. DeWANNBB, rights of, what and when conferred 213. Directors, how qualified individually 169. All English subjects may become so 169. Their oath of office 1?0. Removals of in case of absence, or for misconduct 17L Number of, and how iv INDEX. elected J 71. Their House List 172. Chairman of 175. (Vide Court of) Dutch, when first settled in India 133. Decay of their Power 148. Duties of life spring from a sense of Justice 273. o East India Company (Vide Company.) Election, of Political representatives, how it should he regulated 50. Mode of Electing Members of Parliament 90. Election of Di- rectors of the East India Company 171. (Vide Electors, Di- rectors.) Electors for Members of Parliament who, and how to be qualified 89. Certain classes excluded from such right of Election, and why 95. (Vide Election Directors.) Elizabeth, Queen, her first Charter to the East India Company 131,204. Emperor, or great Mogul of India (Vide Moguls.) English, their first arrival in India 118. Effects and strength of their Government in India 119. Their contests with the French 152,156. Ob- tain the Jaghire of Madras 156. (Vide Carnatic.) * English Company formation of, under Charter of William 3d 13G. (Vide Company.) English Law, system of, and its quality 320. Accusations against it 321. Comparison of it with other systems 322. Expences of litiga- tion under English Laws 322. Crime less prevalent under it than in other civilised countries 3-3. In what respects defi- cient 3^7. Why the English Laws should be reduced into a systematic Code 329. Evidence certain fixed rules of necessary with a view to the just investi- gation of facts 309. Executive Government, what 106. Factories, (Vide Settlements.) Fort St. David, 135,208. Fort St. George, Presidency of, when founded I34,20S. French, tlnir settlement in India 149. Contests and influence with 'the Native Powers 149. Capture Madras 150. Influence over the whole Deccan 150. Nabob of Carnatic made Dependent on 150. Their contest with the English 156. Neglected by their own Government 153. Defeated by the English and their influence finally destroyed 156. George 1st and 2d, their Charters 212. Gogo 134,208. Government (Vide Political Government, Arbitrary Government.) Governments of India, Preliminary observation's on 199. Bond of Connection between them, and the Government of England 257 Government of India not the Company's but the Queen's Go- vernment 260. S\ stem of checks in the Government of India 261. Defects in 262. (Vide Political Government, Subordi- nate Governments.) INDEX. v Government Supreme of India, how constituted and of what members composed 220. Vacancies how filled up 222,224,225. Tem- porary vacancy of the Governor Generalship '223. When and how vacancies supplied by the Crown '225. Its course and method of procedure 226. How the Governor General may act solely 228. Supreme Government may be held in any part of India 230. Controlling Powers of SupremeGovernment 232- M ide unlimited 234. Its Legislative powers. 230. Originally defective 236,238. Progressive increase of 237- ItsLegislativc powers in the Provinces 241. What granted under the Char- ter Act of 1833,214. Limitations of the Legislative power 245,246. The exclusive powers of Supreme Government in relation to Native States 247. Its controlling powers as lo Revenue 24H. And as to Military Forces 248. Government of Bengal — (Vide Bengal.) Governments of Madras, Bombay, and Agra, — (Vide Madras, Bom* bay, Agra, Subordinate Governments.) Governors, when first appointed by that name 214, 21G. Governor General how appointed 183,220. How his vacancy filled up 222,228,224. When may be filled up by the Crown 225. When and bow he may excrcbe sole authority 228. May assemble his Council in any part of India 230. Governors, how appointed, 183. When first appointed by that name, 211,216. How and when they may exercise sole authority, 228. When and bow they become extraordinary Members of the Supreme Government 230. • Govindtoue 209. Gkatoities, limitations on the power of the Court of Directors to grant 1S2 Habits, Forms of Political Government originating partly in, and de- pendent upon 37. And vary accordingly 38. Habits arise partly out of external condition of countries 38 HAPPIES B, individual and social, distinction between 29. In what consists social happiness 29,37. IIoogiily, 134,208. House of Lords, Commons. — (Vide Lords, Commons.) Honors an I offices (vide Prerogatives, Offices.) India, causes which have obstructed a more perfect system of Govern- ment in India 61. Reasons for being content with the Bcheme for Indian Government 62. Laws passed for India by the English chiefly to regulate Judicial Procedure 811. The law of India very defective, and why 287,329. They require to be redo :ed to a systematic code 329. Indian GOVERNMENTS— (Vide Governments.) JAMBA 1st, bis ( barter to the East India Company 204. 2d, his Char- ter 206,236. Judge, character of a good Judge 289. In what way Judges should be independent oVj. vi INDEX. Judgments of Courts how they should be delivered 310. Rules necessary for enforcing, and for rectifying 310. Justice, the meaning of the term 271. In what the general virtue of Justice consists 272. Justice prescribes all the duties of life 27j?. Administrative Justice, what 274. Natural sense not a sufficient guide in administering justice, 2S5. King, (Vide Queen,) Labor, the foundation of property 279. Laws, objects and ends of 275. No laws ever employed in matters indifferent 276. All laws obligatory on the conscience 277. Why they should be certain and clear 285. Evils of uncer- tainty in laws 287. They should specify and define rights 290. In what manner 291. Civil code of rights, what 292. How distinguished from Criminal Code 294,295. Criminal Code, -what 295. How distinguished from Civil Code 295,296. Laws ■when reduced to a system form a science 316. Are few and simple among barbarous nations, and under despotic Govern- ments 316,318. Why numerous and complicated among weal- thy nations, and under well-constituted Governments 317. When and why they should be reduced to a systematic Code 327. (Vide English Law, India.) Law Commission for India, — (Vide Commission.) Legislative authority, nature of, in England 75. How constituted 76. Legislative powers of Indian Governments, history of 236. Originally defective 236,237. What defects in the Statute of 1773 con- ferring them 238. What conferred by Statutes of 1781,1797, 240. What conferred by Statutes of 1799,1807, on the subor- dinate Governments of India 238. What powers conferred on the Governments of India to legislate for the provinces 241, 249. What conferred on the Supreme Government by the Charter Act of 1833,244. (Vide Governments, Subordinate Governments, Regulations.) Limitation, how the Government of England a limited monarchy 112. Litigation, how expences in arise 322.' Natural causes of, independ- ently of the quality of laws 325. Lords, House of, what 82. How created i 2. How summoned to Par- liament 84. Power of voting by delegates 85. Have the sole right of originating laws affecting their own rights as Lords of Parliament 8b. Right of recording their dissent 86. Madras taken by the French 150. Jaghire of, granted to the East India Company 156. Limits of the Town to be fixed by Government of Madras 254. (Vide Subordinate Governments, Presi- dencies.) Mahmoud of Ghizni, his invasions 140. Manners, Political Government originating in, and partly dependent on 37. Governments vary accordingly 38. Manners partly dependent on the external condition of countries 38. (Vide Political Government.) INDEX vii Marhattas, their rise and conquests 143. Quality of their Power and Government 144. Its decay 144. Masulifatam 134,20S. Members of Parliament, number of in -House of Commons 89. How to be qualified 9. Qow elected 88,89,90. How ) returned as elected 92. Not the Agents merely of those who elect them 93 Connexion and union between the members and their consti- tuents 94. (Vide Parliament, Commons, Election, Returns.) Members of Council, who, and how appointed, 183,203,213. How va- cancies of supplied 225. When and how a Civil Servant can be called in to vote specially at a Council 225. Menu, extracts from his laws 287. Military Fopces, powers of Supreme Government over 2 18. Powers of Subordinate Governments over 253. (Vide Subordinate Go- vernments, Cadets.) Military Service, in what respect, and to what extent confined to Bri- tish Subjects 251,252. (Vide Cadets.) Ministers, of the Crown their responsibility for all public measures 107, 113. How chosen 113. Of the Prime Minister 114. (Vide Queen Prerogatives, Executive Government.) Minutes of Council, what 226. Moguls, first invasions and conquest of India 140. Quality of their Go- vernment in India 141. Decay of their Power 143. Monarchies, absolute (Vide Arbitrary Governments.) Money (Vide Prerogatives) ' Mussulman (Vide Moguls.) Nabob (Vide Carnatic.) Naval, (Vide Sea.) Natives, all legally competent to hold any offices, if qualified 250 Causes of their disqualifications hitherto 250. Native Subject? meaning of the distinction between British and Native Sub- jects 'J 00. Native States Powers of Suprorrte and Subordinate Governments in re- lation to '247,25:5. Why their dependence on British Govern- ment prejudicial to their subjects 2G3. Native Sovereigns. (Vide Sovereigns.) Natural Law, superior to Laws of human origin 278, Offices, what at the disposal of the Governments of India 2l!>. Natives legally competent to hold, if qualified 250. Why hitherto dis- qualified 250. (Vide Prerogatives) Opening op Parliament, what 79. ■ Parliament, how summoned 7S. Opening what 79. Sessions of what 7$. Prorogation of what 78. How long to continue 78. Dis- solution of what 79. Business of, not being of a Legislative quality 103. Reports of Debates 104. (Vide Queen, Lords, Commons.) via INDEX. Peers, (Vide Lords.) People of England, how they have established the English constitntion 73. (Vide Share.) Petitions to the Court of Directors, nature, object, and limitations of 190. Pipley 135,208. Plassey, Battle of 157. Political Government. That there are certain fundamental principles to be observed in all good schemes of Government 25. Origin of Government 26. Great variety in 28. Objects and aims of Poliiical Government 29. Should be founded on some scheme or plan 32. Defects in Absolute Governments 33. Absolute Governments may consist of many rulers as well as of one or a few 36. The forms of Government partly arise out, and are partly dependent on Feelings, Manners, and Habits 37. And vary accordingly 38. Why not the same scheme, of Govern- ment in India as in England 39. Changes in Political Govern- ment how necessary 40. By what kind of persons to be in- troduced 41. Why all changes in some degree prejudicial 41". That Political changes should be gradual 42. That the form of Political Government is partly dependent on the external condition of countries 43. No perfect standard of 15. (Vide Representation, there) Political Liberty what 63. Pondicherry, First French settlement 149. Taken by the English 157. Population of the Company's Xerritokies in 1749 153. Portuguese first discover passage to India by the Cape of Good Hope 123 Are the first Europeans who settled in India 128. Measures by to engross the whole trade of India 128. Their progress towards political Power in India, and causes of failure 148. Precedence (Vide Rank.) Prerogatives of the Crown what 106. Personal independence of the Queen 106 Power to male treaties and to declaie war and peace 108. The authority of dispensing Justice 1US. Bestows all honors and offices 110. Orders all affairs of National Com- merce 110. Exclusive powee of coining Money 111. Governs the affairs of the National Religion or Church 111. Right of the Qmen to choose her own Ministers of State 114. Not to be affected by Laws made by the Supreme Government 245. (Vide Queen, Ministers.) President first foundation of the Boards of President in Council 208, 213. (Vide Governors.) Presidencies, first foundation of 208. Put under the Bombay Govern- ment 208. Limits of Territories under each to be fixed by the Court of Directors 254. Press, liberty of the 104. Procedure, different courses of Judicial Procedure, and why 294,296. Objecls of Judicial Procedure 306,308. Regularly constituted Courts a necessary part of 306. Certain forms and settled rules of necessary 307,311. And why so necessary 309. Should INDEX. ix be guided by fixed rules of Evidence 309. Rules of Proce- dure should regulate the modes of delivering, of enforcing, and of rectifying judgments -S09,.n0. Evils of a defective method of Judicial Piocedure 312. The Regulations of the Indian Governments chiefly directed to regulate Judicial Procedure 311. Natural sense not a sufficient guide for, without rules 311. (Vide Courts of Judicature.) Prorogation of Parliament, what 7b. Property, a fit test as a qualification, for Electors of Political Repre- sentatives 57. Origin and foundation of 279. Necessity of rules for its transfer 2H2. Proprietors of Stock, who 161. Their qualifications 162. Their rights of voting 162. Estimated amount of iheir Stock 162. Their lowers and Functions 164. (Vide Company,- Court of Proprietors.) Provincial Courts Powers granted to the Governments of India of Le- gislating for 242. (Vide Regulations, Legislative Authority.) Punishment of Crimes, Legitimate object of human Laws for Punish- ment 302 Delay and uncertainty of Punishments reduces their efficacy 303. How they should be proportioned to crime 303. How they require adaptation to the quality of Persons aa ■well as to that of Crimes 304. Should be calculated to enforce Reflection 305. (Vide Revenge,) Queen, Her Legislative capacity 77. Her hereditary right to the Throne 77- Her power of summoning Parliamen s 78. To Prorogue, and to dissolve them 78. Her mode of opening Par- liaments 79. The Executive Government of the Queen what 10B. Her dignity 114. How a limited Monarch 112. (Vide Prerogatives Governments.) Rank Precedency among Lords and the Nobility of England 83. Rkgllating Acts of, 1773,1 784,1793,1 M3, 1833. 159. Regulation, Power of making how limited 2^16, et. seq. The quality and extent ol it originally 238. Power of passing Police Regu- lations 238. Authority formerly of Supreme Courts to reject 241. Inexpediency of that power 241. Power to pass Regu- lations for Native Courts Martial 243. 'And for Taxation 243. Government Regulations chiefly directed to Judicial Procedure 311. (Vide Governments, Legislative Authority) Reflections, on the quality of the Indian Governments 256. Rllioion, (Vide Prerogatives) Representation, Perfection of all systems of Government, proportionate to the perfection of the system of political representation 52. Consists partly in the bulk of the People having access to honors and offices 52. Why such a Rcpn sentative share not a suffi- cient share in the Government 54. That the system of Political Representation should extend to the Supreme Power in a state 55. That the bulk of the People can only exercise such a share in the Supreme Power by means of electing Representatives 56. Of the proper ex- s INDEX. tent and limits of this power of Election and of the pro- per qualifications of Electors 50. That the system of Political Representation should limit the duration of the Representative's authority 5S. Why the People of India have no share in the Government by the system of Repre- sentation (51, '266. Why defective on that account 267- (Vide ' Governments, share ) Representatives, (Vide Representation, Commons, Election, share Go-, vernments.) Rrturns of Members of Parliament, what 92. Revenge, not a legitimate object of human Punishment 298. The nature and object of this pa-sion 299. The gratification of revenge only an object of Punishment by the laws of barba- rous nations 299. (Vide Punishment.) Revenue, when first raised from the people of India by the Company 136. A controlling power in the collection and applica; tion of in the Supreme Government 2-18. (Vide Governments, Subordinate Governments.) Saxsettf, 154. Science, how Jurisprudence, and systems of local Law become Sciences 3 1 6 Sea, Power of the Company at Sea 15 L Security, personal, rights to 284. Sense, natural .sense not a sufficient guide for administering Justine 285. Advocated as a guide only by ignorant and uncivilized People 286. Not a sufficient guide for the method of Judicial Procedure 311. (Vide Laws.) ions of Parliiament, what 78. (Vide Parliament.) Settlements or Factories, the first existing in India 133. Share, t! A share 'HI. A portion of the People must necessarily ..ave a share in the Administration under every form of Government ■17. Why a .small portion of the People so sharing is not suf- ficient IS. How large a portion of the People should have a share 49. That the bulk of the People should have a share 60. Why a large portion cannot actually exercise the functions of Government 50. Having a share in the Government, partly consists in the bulk of the People having access to offices and honors 52. Reflections on that quality of a good system of Government, consisting in the People having a share in its Ad- ministration 60. Why no Representative share by the People in the Government of India 61,2(36. (Vide Representation ) Sni.RiFrs, in what manner they superintend elections of Members of Pai'liameftt 88. Their returns of Members 9'A _ Sovereigns, Native of India, why their having no independent Political Power burthensome to the People 264. Speaker, of the Houses of Parliament 100,101. Statctl-s, what 100. Various 21 ',1-37,192. Of 1773. 215,237,242. ..iat the hulk of the People should exercise some share jn the \d;iinistration of Government 46. What it is to have Luch a INDEX. xr * . 1793, the first of those called Charier Acts 216. Of 1813, of . 1833 217,218. Of 1781, and of 1797 212. Of 1799 and 1S07. 243. Of 1813, of 1814, and of 1833 244. The confu- sion arising from the number and variety of 218. Stock, East India Company's amount of 153,162. Subordinate Governments first invested with Legislative Powers 217. How Supreme Government constituted 220. How Subordi- nate Governments constituted 223. How vacancies filled up 223,224,225. Course of proceeding at Councils 22o'. Minu- tes in Council, what 226. When and how sole authority of Governors exercised 228. Governors of, become extraordinary Members of Supreme Government when and how 230. Powers of the Subordinate Governments to legislate for the Provinces, origin and progress of 241,249. Their powers and functions. 249. Their powers in relation to Native States 25J. In rela- tion to th" Revenue 254. To fix limits to the Towns of Cal- cutta, Madras, ;.ud Bombay 254. (Vide Governments, Legis- lative authority.) Succession, order of succession to the English Crown 78. (Vide QUC'MI.) Summoning Parliament how and when 78. (Vide Queen.) Supreme Authority, how it consists of the Legislative authority 75. (Vide Governments Courts of Judicature.) Suuat, English S itl ;ment at, founded in 1612. 134, 20S Presidency at, transferred to Bombay 208. Taxation, sole power of taxing the p°ople of England rests with the House of Commons to originate measures 96. (Vide Regula- tion-.) Trade, exclusive, first granted 131. Gradually abolished 159. Effects of its total abolition 159. Tbvatibs, prejudicial effects of certain Treaties with Native Princes 2G6\ Trichinopoly I Truth, the found ition and stay of Justice 273. Vacani i: »,— i Vi i e Governments, Subordinate Governments) VlZAGAPATAM, 135,208. ) William 3d, Charter of 137,138,210. Its quality 211, 237. Writers who, and what 183,250. How appointed 185, (Vide Civil ) UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. Form L9-Series 4939 JQ 22k N823r