« PreviousContinue »
Laws are, in some cases, passed with suspending clauses; i.e., although assented to by the Governor, they do not come into operation or take effect in the colony until they shall have been specially confirmed by Her Majesty. And in other cases (as, for example, in the British North America Act, 1867, 30 Vict. c. 3, s. 55) Parliament bas for the same purpose empowered the Governor to reserve laws for the Crown's assent, instead of himself assenting or refusing his assent to them.
Every law which has received the Governor's assent (unless it contains a suspending clause) comes into operation immediately or at the time specified in the law itself. But the Crown retains power to disallow the law; and if such power be exercised at any time afterwards, the law ceases to have operation from the date at which such disallowance is published in the colony.
In colonies having representative assemblies the disallowance of any law, or the Crown's assent to a reserved bill, or the confirmation of a law passed without a suspending clause, is signified by Order in Council.
In Crown colonies the allowance or disallowance of any law is generally signified by a despatch.
In some cases a period is limited, after the expiration of which local enactments, though not actually disallowed, cease to have the authority of law in the colony, unless before that time Her Majesty's confirmation of them shall have been signified there; but the general rule is otherwise. Each Governor receives special directions not to assent to Acts except under certain conditions, which are specified in his instructions.
In an opinion given by the Attorney and Solicitor General, Sir Charles Wetherell and Sir Nicolas Tindal, in March, 1828, respecting the execution of sentences passed in Jamaica upon two convicts under a particular Colonial Act, they said: "We are of opinion that, in consequence of the disallowance of the Act in question, M'Kay cannot be lawfully executed, but ought to be discharged; and that upon the same ground Hall cannot be lawfully imprisoned for the remainder of his sentence, but ought to be discharged."
The East The first Act of Parliament which gave authority to the Governor
Indies. General and Council at Fort William, in Bengal, to make rules and
regulations " for the good order and civil government" of the East India Company's settlement at Fort William, and to impose "reasonable fines and forfeitures" for the breach of such rules and regulations, was 13 Geo. 3, c. 63, s. 36 (1773), usually called "The Regulating Act." This was followed by other Acts: 21 Geo. 3, c. 70, s. 23; 37 Geo. 3, c. 142, B. 8; 39 & 40 Geo. 3, c. 79, s. 18; 53 Geo. 3, c. 155, s. 6. By Regulation III. of 1793, in cases coming within the jurisdiction of the zillah and city courts, for which no specific rule may exist, the judges are to act according to justice, equity, and good conscience.
The legislative authority in the East Indies was vested by statute, 3 & 4 Will. 4, c. 85, s. 43, in the Governor-General of India in Council, who had the power of making laws and regulations for all persons, whether British or native, foreigners or others, and for all places and things within the British territories in India, and " for all servants of the (East India) Company within the dominions of Princes and States in alliance with the said Company." But it was expressly enacted that the Governor-General in Council should not have the power of making any laws or regulations contrary to that Act or the Mutiny Acts, "or any provisions of any Act hereafter to be passed in anywise affecting the said Company, or the said territories, or the inhabitants thereof, or any laws or regulations which shall in any way affect any prerogative of the Crown, or the authority of Parliament, or the constitution or rights of the said Company, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the said Crown over any part of the said territories."
This section of the Act was repealed by " The Indian Councils Act, 1801," 24 & 25 Vict . c. 67, but was, in effect, re-enacted by sect. 22 of the last-mentioned Act. And by statute 28 Vict. c. 18, s. 1, the Governor-General of India has power, at meetings for the purpose of making laws and regulations, to make them for all British subjects of Her ilajesty within the dominions of Princes and States in India in alliance with Her Majesty, whether in the service of the Government of India or otherwise. The statute 24 & 25 Vict. c. 07 provides that the Governor-General shall transmit to the Secretary of State for India an authentic copy of every law or regulation assented to by him, and Her Majesty may signify through the Secretary of State for India in Council her disallowance of such law, which shall thereby become void and be annulled. The same statute also provides, by sect. 24, that no law or regulation made by the Governor-General in Council (subject to the power of disallowance by the Crown as thereinbefore provided) shall be deemed invalid by reason only that it affects the prerogative of the Crown. It also by sect. 28 enables the Governors of Madras and Bombay to make rules and orders for the conduct of business in their Councils; and by sect. 42 the Governor of each of those presidencies in Council has power, subject to the provisions of the Act, to mako laws and regulations for the peace and good government of such presidency; but by sect. 43 they are expressly prohibited from making laws or regulations on certain specified subjects.
In illustration of the difficulties that have now and then occurred with respect to the extent of legislative authority in India, I may mention the question of patents. Grave doubts were entertained whether, during the government of the East India Company, the prerogative of the Crown to grant patents in India was or was not in abeyance, and in 1856 a patent law was passed by the Governor-General in Council: Act VI. of 1856. But this Act had not the previous sanction of the Crown, as required by statute 16 & 17 Vict. c. 95, s. 26 (now repealed by 24 & 25 Vict. c. 67), and it was doubtful, therefore, whether it was not ultra vires. It was repealed by Act IX. of 1857, and a new patent law was enacted by Act XV. of 1859; which recites that Her Majesty's law officers had given it as their opinion that the Legislative Council of India was not competent to pass Act VI. of 1856 without previously obtaining the sanction of the Crown. This Act is now the governing Act as to patents in India.
Another question arose with respect to the validity of Act I. of 1849, by which jurisdiction was given over offences committed byaZZ British subjects in foreign States; and the Law Officers of the Crown and myself were of opinion, in 1866, that in the case of offences committed in foreign states by native Indian subjects of the Crown, the GovemorGeneral in Council had not the power to make laws for their apprehension and punishment in British India, for we thought that the power was restricted by statute 24 & 25 Vict. o. 67, s. 22, and 28 Vict. c. 17.
The government of the British territories in India was taken from the East India Company and vested in Her Majesty by the " Act for the better Government of India," 21 & 22 Vict. c. 106.
The following chronological statement of the principal events in the history of the East India Company, may be found useful:— 1600. Dec. 31.—Charter granted by Elizabeth, limited to fourteen years.
1609. May 31.—Second charter granted by James I., "for ever."
1613.—Firman from Mogul Emperor to East India Company, allowing them to establish factories at Surat and elsewhere on Malabar Coast. This was the beginning of their establishment in India.
1616.—East India Company occupied Surat, Calicut (on Malabar coast), and Masulipatam (on coast of Coromandel).
1624.—Firman from Mogul Emperor, permitting East India Company to trade with Bengal at port of Piplee in Midnapore.
1638.—Fort St, George erected at Madras-patam.
1640.—East India Company first permitted to establish a factoiy at Hooghly (Calcutta), in the beginning of Shah Shuja's government of Bengal.
1653.—Fort St. George erected into a Presidency.
1661. April 3.—Letters patent of Charles II., ratifying charter.
1661.—Charter granted by Charles II., granting to East India Company power to make peace or war with any prince not Christian, and to seize and send to England unlicensed traders.
1669. March 27.—Letters patent of Charles II., granting Bombay to East India Company, "to be held of the King in free and common soccage, as of the Manor of East Greenwich, on the payment of the annual rent of £10." Authority also granted to Company to exercise all political powers necessary for the defence and government of the place. (Bombay was ceded to British Crown by King of Portugal under treaty, June 23, 1661.)
1673.—St. Helena granted to East India Company by charter.
1683—5.—"The servants of the Company were now invested with unlimited power over the British people in India."—Mill's History of British India, i. 119. But, query, how and by what authority?
1687.—Bombay erected into a regency, with unlimited power over the rest of the Company's settlements. „ Madras erected into a corporate town, governed by mayor and aldermen. There was a discussion in the Privy Council whether the charter should be under the King's or Company's seal.—Mill's History of British India, i. 121.
1689.—Instructions from Court of Directors, pointing to increase of territorial and political powers.
1698-9.—East India Company obtained permission from Emperor Aurungzebe to purchase the villages of Soota Nuttee (or Chutta Nuttee), Govindpore, and Calcutta; and began to build Fort William. The station mado a Presidency.
1698. Sept. 5.—Charter by William III., incorporating a second East India Company under name of " English Company," the old Company being known as " The London Company."
1702. July 22.—Indenture tripartite between Queen Anne, the old Company, and the new Company.
1708. Sept. 29.—Earl Godolphin's award.
1709. March 22.—Surrender of rights of old Company, and all rights
vested in " United Company of Merchants of England trading to the East Indies." 1753.—Letters patent creating courts of judicature at Caloutta, Madras, and Bombay.
1756. —Suraja Dowla became Subahdar of Bengal.
„ Aug. 5.—Calcutta taken, and English thrown into the "Black Hole."
1757. Jan. 2.—Calcutta retaken by Lord Clive.
„ Battle of Plassey. (June 23.) First treaty with Nabob of Bengal. Grant to East India Company of twenty-four Pergunnahs. East India Company permitted to fortify Calcutta, and erect a Mint.
1760.—Treaty with Meer Kossim Ally Khan, by which East India Company obtained possession of Burdwan, Midnapore, and Chittagong.
1765.—Grant of the Dewanny by the Emperor Shah Allum to the East India Company of Bengal, Behar, and Orissa.
1772. —First Regulating Act, 13 Geo. 3, c. 16.
1773. —Act authorising the erection of Supreme Court of Judicature,
13 Geo. 3, o. 63.
1833.—The East India Company ceased to he a trading company, hut continued to hold the government of India in trust for the Crown, hy 3 & 4 Will. 4, c. 85.
1858.—The government of India taken from the East India Company, and vested in Her Majesty, hy 21 & 22 Vict. c. 106.
Actions on As to actions hrought in this country upon colonial judgments, colonial judg- see Carpenter v. Thornton, 3 B. & Al. 52 (doubtful); Henley v. Soper, ments. 8 B. & C. 16; Henderson v. Henderson, 6 Q. B. 288; Bussell v. Smyth,
9 M. & W. 810; Sadler v. Bobins, 1 Camp. 253; Obicini v. Bligh, 8 Bing.
335; Hutchinson v. Gillespie, 25 L. J. (Ex.) 103; Frith v. Wollaston,
7 Ex. B. 194; Bank of Australia v. Mas, 16 Q. B. 717; Buchanan v.
Bucker, 1 Camp. 63; 9 East, 192, S.C.; Ferguson v. Mahon, 11 Ad. & Ell.
179; Cowan v. Braidwood, 1 M. & G. 882; Beynolds v. Fenton, 3 C. B.
187; Vallee v. Bumerque, 4 Ex. R. 290.'