COURT'S DRAFT,

No. 128.

OBSERVATIONS ON THE COURT'S DRAFT.

No. 128.

possessed the right to commit to officers of distinguished character and talents, serving at a distance from the seat of government, such discretionary powers as may be required in circumstances of exigency, to be exercised on their responsibility, and subject to the ultimate confirmation of the supreme authority in India. The right to delegate such discretionary powers, appears to the governor-general in council to be necessarily inherent in every well-regulated government; and it does not appear to his excellency in council to be probable that, it could have been in the contemplation of the legislature to impose any other check on its exercise (within proper limits,) than the check which arises from the general responsibility of the government for the propriety of all its

measures.

"The powers of the governor general, whether exercised in his own presidency, or at the presidencies of Fort St. George, or Bombay, with the councils of either presidency, are, in the judgment of the gover nor-general in council the same, this case appearing to be expressly provided for by section 32d of the statute of 1793, chapter 52d.

"At the period of time, when it was determined by this government to commence hostilities against Jesswunt Rao Holkar, major-general Wellesley had proceeded to Bombay, on the invitation of the honourable the governor of that presidency, for the express purpose of conferring with Mr. Duncan, and the government of Bombay, on the subject of the necessary arrangements at that presidency, in consequence of the conclusion of peace with Dowlut Rao Scindiah, ' and the Rajah of Berar. Major-general Wellesley was in the habit of daily confidential communication with Mr. Duncan, and it was at that period of time intended that the war in the Deccan, against Jesswunt Rao Hoikar, should have been conducted by general Wellesley on the same grounds on which the conduct of the war against the confederates had been entrusted to that distinguished officer.

"The channel of communication, on this occasion, was, therefore, considered to be the most proper which could have been adopted. No extensive preparations for the prosecution of the war were required at Bombay; and the governor-general considered himself to be at liberty to exercise his discretion, with respect to the mode of communication with the government on the subject.

"This mode of communication appeared to the governor-general to be peculiarly proper, because the operations of the war on the west of India were to be conducted by an officer acting under the immediate authority of the supreme government, and those operations were not, in any degree, subject to the regu lation and control of the government of Bombay. The governor general in council certainly entertained no intention of violating any established usage, or any provision of the law, but adverted merely to the dis

patch

COURT'S DRAFT, OBSERVATIONS ON THE COURT'S DRAFT, No. 128.

No. 128. patch of the public business, and to the advantage of the service, in a crisis of war."

7. The preceding extracts, from the letter of the governor-general in council, 20th May, 1805, embraces every point contained in the first division of the paper No. 128, under the head « infraction of the law," &c. with the exception,

8. 1st. of the appointment of Mr. Wellesley, 2d. The mode of recording minutes; 3d. The appointment of colonel Murray; and 4thly, the discussion respecting the person and number of the verb used in the letters from Bengal, addressed to the

court of directors. The 'appointment of 9. On the first point, viz. Mr. Weliesley's appointMr. H. Wellesley to con- ment, it is sufficient to state, that the governor-geneduct a negotiation atral, lord Wellesley, having had reason to apprehend, Lucknow; and his ap- that the nabob vizier had adopted a systematic course pointment to be lieute- of proceedings, for the purpose of frustrating the issue nant-governor of Oude. of the negotiations which were then depending with Paragraph 4 and 5. the court of Oude: and having received intimation,

that the nabob might attempt to pass over the season without concluding any final arrangement with the company, under the pretext of awaiting lord Wellesley's expected arrival at Lucknow, determined to dispatch Mr. Wellesley to Lucknow, as the most advantageous measure which couid be substituted for the governor-general's presence at that city. It was thought, that a person so nearly allied to the governorgeneral by the ties of blood, as well as of the most intimate confidential connection, would necessarily inspire the nabob with a serious conviction of the importance annered by lord Wellesley to the success of the depending negotiation, and would remove from the nabob's mind whatever doubts he might have been erroneously induced to entertain of the governor general's adherence to the determination which had so frequently been announced to him by letter, and through lieutenant-colonel Scott, the resident at Lucknow.

COURT'S DRAFT, OBSERVATIONS ON THE COURT'S DRAFT, No. 128.

No. 128. years past, to the security and honour of the British empire in India.

11. The peculiar character of the people of the districts ceded to the company under the treaty of Lucknow, and the obstacles which the nabob and his dependants might be expected to oppose to the final settlement of the country under the British government, required the constant presence of an active and vigorous authority, until the foundation of the new arrangement should be firmly established. The abi. lity and firmness which Mr. Wellesley had manifested in the principal conduct of the negotiation with the nabob, had been the most efficient cause of its speedy, prosperous, and tranquil issue.

These qualities, combined with the authority which he naturally derived from his near connection with the governor.general, induced lord Wellesley to consider Mr. Wellesley to be the most useful instrument which could be employed on the occasion. Lord Wellesley, therefore, appointed Mr. Wellesley, at the head of a commission of civil servants of the company, to preside over the provi. sional government of the ceded districts at the commencement of the settlement. The duty being merely of a temporary and extraordinary nature, no objection existed to his appointment, on the grounds of the act of Parliament.for filling the civil offices under the government of India; and the court of directors having already approved of Mr. Wellesley's appointment to be a commissioner for the settlement of Mysore, in 1799, and actually presented him with a reward for his services on that occasion, there was no reason to suppose, that the employment of Mr. Wellesley, in the settlement of countries, not yet reduced to a state of order, or of regular administration, and in the execution of similar duties to those which had already received the approbation of the court of directors, could be deemed inconsistent either with the rules of the company's service, the practice of the government of India, or the interests of the civil servants of the company.

In fixing the amount of Mr. Wellesley's salary, lord Wellesley was guided by the consideration of precluding the possibi ity of that gentleman's incurring any pecuniary loss by the discharge of his important fuuctions ; on the other hand, his lordship determined, in conformity to Mr. Wellesley's express desire, that he should not derive any emolument from the office of lieutenant-governor of the ceded provinces, beyond the amount of that which he actually possessed in the office of private secretary, under the express orders of the court of directors. The governor-general therefore directed Mr. Wellesley (in conformity to the practice which is adopted by all political agents in India) to charge the company with his actual expenses, and continued to him the amount of his salary as private secretary, being 60001. per

annum, . Lord Cornwallis employed colonel Read, and three military officers, as colo Bectors, to settle the countries ceded by Tippoo, in 1792. VOL.9.

* B

12:

COURT'S DRAFT,

No, 128,

That the governorgeneral had recorded mimutes at councils at which he was not present, which bore a date different from that on which the council was held. Para. 8.

OBSERVATIONS ON THE COURT'S DRAFT,

No. 128.

annum, the scale established by the court of directors for that office.

13. Of the result of Mr. Wellesley's appointment it is unnecessary to enter into any explanation. It will be sufficient to refer to Mr. Wellesley's report of the 10th February, 1803, and to general Smith's account (published in the Calcutta Gazettes) of the state in which he found Rohilcund, after two years of war, one of scarcity, and after an hostile army had passed through that country. On this subject the secret committee, in their lettert of the 19th Novem ber, 1894, express the happiness which they feel in

approving the conduct, and acknowledging the services, of Mr. Wellesley ;" and the court of directors, in the revenue letter of the 14th September, 1803, state, that they received great pleasure from Mr. Wellesley's letter of the 29d March, 1802, that the utmost tranquillity prevailed throughout the ceded provinces; and that the change in the government appears to have given general satisfaction." The condition of the ceded provinces, on lord Wellesley's departure from India, is the most satisfactory testimony which can be afforded, of Mr. Wellesley's valuable and successful services in Oude.

14. The mode of recording minutes is justified by the act of parliament, which authorizes the governorgeneral to absent himself from council.

15. The act states, that if the governor-general shall happen to be absent from any council, owing to indisposition, or to any other cause whatsoever, and shall signify such his intended absence to such council so to be assembled, then, and in every such case, the senior member for the time being, who shall be present at the council so assembled, shall preside at such council, in such manner, and with such full powers and authorities, as such governor-general might, or would, have had, in case such governorgeneral were himself actually present at such council. Provided, nevertheless, that no act of any council so held shall be valid to any effect whatsoever, unless the same shall be signed by such governor-general, if such governor-general shall, at the time, be resident at the presidency at which such council shall be so assembled, and shall not be prevented, by such indisposition, from signing the same."

a

COURT'S DRAFT, OBSERVATIONS ON THE COURT'S DRAFT, No, :28.

No. 128 Appointment of colo- 17. With regard to colonel Murray's appointment, nel Murray to command it may be observed, that when a country is the seat in Guzerat, independently of war, or is to be defended, as was the case with of the authority of the Guzerat, the supreme military command must be government of Bombay. vested in the military officer who has the direction of Para, 12.

the operations. A change in the military system of
Guzerat, with a view to the war, was indispensable ;
the command of the troops, south of the Nerbudda,
being, at that time, exercised by a commission, con-
sisting of three civil servants; and the command north
of Nerbudda by the resident at Brodera, who, although
a military officer, was in the execution of the duties
of a civil office. In fact, the appointment of colonel
Murray was made by general Wellesley, with the
consent of Mr. Duncan, in consequence of the autho.
rity entrusted to General Wellesley, under the orders
of the supreme government ; and colonel Murray
acted under general Wellesley and the supreme govern-
ment, in the general operations of the war, subject
however, in all matters of detail, to the governor
of Bombay. It is impossible to conceive any other
mode by which the sup eme government could havo
conducted the operations of an extensive war, car-
ried on, at the same moment, in various quarters of
India. If the army of each subordinate presidency
had been left to the separate and exclusive autho-
rity of each government, no combined plan could
have been pursued; the great distance would have
rendered all concert impracticable, and a conflict
would have arisen between the powers of the respec-
tive governments, which must have proved favourable
to the cause of the enemy. It was necessary, there.
fore, to bring the authority of the supreme govern-
ment to bear directly upon every point in which milia

tary operations were to be conducted. That the letters from 18. The last point under the head of " infrac. the government of Bengal tions of the law,” is the form of addressing the are addressed to the court court of directors. This charge really appears of a of directors in the third trivial and unimportant nature, especially as the person singular, instead of form now complained of is the same which has genethe first person plural. rally been observed by lord Wellesley, and never Para. 13. before noticed by the court.

An assertion is made, that the government of India abroad is vested ać each presidency in a governor and council. The act of parliament certainly appears to vest the government in a governor in council. The proposed object and spirit of the act is to strengthen the power of the respective governors as much as possible, consistently with the attainment of a due revision and control of all their proceedings by the authorities in England, throagh the proceedings of the council. The style of address, therefore, used by the governor-general in council, is in strict conformity to the letter and spirit of the law, which directs, (clause (39) “that the proceedings of the governor general and council shall be expressed to be made by the governor-general in council.” No proceeding can be more formal than a general letter to the court of directors.