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the indefinite and irresponsible exercise of the Royal Prerogative in respect of Colonial administration. This has been effected, partly by substituting to an ever increasing extent the strict enactments of Statute law for the uncertain inclinations of the Royal discretion, and partly by submitting to public inquiry and discussion all executive acts of Ministers of the Crown concerned with the appointment, supervision, and change of Colonial Governors and other officials. The Viceroy of India and Colonial Governors have thus been subjected to the peculiar control of Parliament; and their policy and actions are more and more decisively imputed to the Ministers of the Crown, whose agents they are, and whose intentions they may be presumed in all their public acts to be carrying into effect. The more direct exercise of the Royal Prerogative in disallowing the Acts of Colonial Legislatures, in annexing or settling and administering fresh territories, and in providing for Colonial defence, has been progressively hemmed in by limits—somewhat indefinite indeed and not wholly irremovable—imposed by the inquisitiveness and scrutinising energy of Parliament.
Illustrations of the assumptions of Parliament in the matter of the government of Dependencies, and of the sort of close competition which has been of late proceeding between Parliament, on the one hand, and the Ministers of the Crown, on the other, are supplied by (i.) recent legislation for the purpose of ascertaining the extent of the Royal authority in India and of defining the legislative functions of the Viceroy; (ii.) the processes, conducted inside and outside the walls of Parliament, of annexing or settling such territories as British Columbia, the Fiji Islands, and the Transvaal; and The Indian Councils Act.
(iii.) the now recognised duties and responsibilities of Colonial Governors in the different classes of Colonies, as representing and, to some extent, personating the Crown.
(i.) By the Indian Councils Act, 1861' (24 and 25 Vict. cap. 67) the general legislative powers conceded by previous Statutes were confirmed for the GovernorGeneral and his somewhat modified Council as constituted by that Act. The chief novel limitations were that no new laws or regulations should affect either that Act, or the Act of 1833, by which the commercial functions of the East India Company were abolished, or the • Act for the better government of India' of 1858, by which the Government of India was transferred from the Company to the Crown. One noticeable feature of this Act is that, by the 23rd section, it gives (subject to the general restrictions on all legislation) power to the Governor-General, in cases of emergency, to make and promulgate from time to time ordinances for the peace • and good government of the territories legislated for, or of any part thereof. Every such ordinance is to have the force of law for the space of six months, unless disallowed by the Government at home, or controlled or superseded by some law or regulation made by the Governor-General in Council. The 24th section is of peculiar constitutional importance in its bearing on the relations of Parliament to the Crown. The section is as follows: "No law or regulation made • by the Governor-General in Council (subject to the • power of disallowance by the Crown, as herein before provided) shall be deemed invalid by reason only that it affects the Prerogative of the Crown.'
When reconstructing the Government of India in
1858, Parliament attempted to guard against the possible perils which might lurk in the large legislative powers conceded to the Governor-General in Council and to the Governor-General alone. The old Court of Directors and Board of Control were to a great extent reproduced in the Council of India. This Council was to consist of fifteen persons, of whom, in the first instance, seven were to to be elected by the Court of Directors of the Company and eight were to be appointed by the Crown. Afterwards, vacancies occurring in the latter number were to be filled by the Crown, and those occurring in the former number by co-optation within the Council itself. Every member of the Council was to hold his office during good behaviour,' and could be removed only upon an address of both Houses of Parliament. The President of the Council was to be one of Her Majesty's four Principal Secretaries of State, or a fifth Secretary (the appointment of whom was contemplated by the Act) who was to be charged with all the administrative functions previously vested in the Court of Directors or Court of Proprietors of the Company. It was only, however, in respect of the 'grant or • appropriation of any part of the revenues of India or of • any other property coming into the possession of the • Secretary of State in Council by virtue of that Act' that no action could be taken without a concurrence of a majority of votes at a meeting of the Council. In all other cases, if a difference of opinion arose at any meeting of the Council at which the Secretary of State was present, on any question other than that of the election of a Member of the Council, the determination of the Secretary of State was to be final. When this difference of opinion arose on a question decided at any meetIntention of the Act.
357 ing, the Secretary of State, or any Member of the Council present, might require his opinion and the reasons for the same to be entered in the Minutes of the proceedings. It is noticeable that, in the case of a Member, the reasons must be such as . he may have stated at the • meeting. Provision is made for urgency and for the independent action of the Secretary of State, subject to the requirement that the urgent reasons for sending a communication are recorded by the Secretary of State, and notice thereof given to every Member of the Council. Despatches might also be marked ‘Secret' by the authorities sending them, and they need not be communicated to the Members of the Council unless the Secretary of State should so think fit and direct.
It is obvious that, both in the Act of 1858 and in the Indian Councils Act of 1861, the policy of Parliament was to accord to the Executive Government an almost unexampled measure of despotic power to meet cases of emergency, the importance of which could only imperfectly be appreciated by unskilled persons, or by any persons at a vast distance from the scene of action. The policy was, on the other hand, to provide an equally unexampled series of checks and compensatory influences for the purpose of controlling the independent action of the Executive in all ordinary times. A double machinery of Councillors, laborious provision for freedom of deliberation and for publicity in recording the results of it, together with every imaginable security for the personal independence of the Councillors, were contrivances by which Parliament sought to recognise the undoubted Prerogative of the Crown while reconciling it with its own ultimate right of determining how British dominions should be governed.
Mr. John Stuart Mill, who had a lifetime's experience in Indian affairs, said that the great constitu• tional security for the good government of India lies
in the forms of business. It may be doubted whether, in spite of the anxious care which Parliament has taken to regulate the forms of Indian business, the constitutional security sought for has really been attained. When, on the 14th of March, 1878, the Indian vernacular press was subjected, in reference to the expression of opinion, to an inquisitorial and despotic control, such as only the immediate dread of revolution could justify, and which was alien to every British institution, tradition, and principle, the Act was passed formally indeed by the Governor-General in Council, but with the determined and reasoned opposition of some of the most eminent members of that Council. The whole diplomatic change of front towards Afghanistan in 1877–78, the ultimatum addressed to Shere Ali, and the concentration of troops on the Afghan frontier, comprise a series of momentous acts which were preceded by the smallest possible amount of public deliberation either at home or in India, were stoutly opposed at every point by the most experienced members, civil and military, of the two Indian Councils; and were, in fact, almost undisguisedly perpetrated on the sole responsibility of the Secretary of State for India and the Viceroy. The same inefficiency of the existing constitutional guarantees in India was almost more glaringly manifested when, in March 1879, Lord Lytton, the Viceroy, by a mere Executive act, and against the opinion of a majority of his Council, exempted from import-duty all the inferior sorts of cotton, to the sudden and serious embarrassment of the struggling manufacturers of India, and to the