Damodhar Gordhan v. Deoram Kanji, (PC) BS650761
PRIVY COUNCIL

Before:-The Lord Chancellor (Lord Cairns), Lord Selborne, Sir James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith and Sir Robert P. Collier.

0 D/d. 13, 15, 20.7.1875/16.2/ 28.03.1876.

Damodhar Gordhan - Defendant

Versus

Deoram Kanji, deceased, by his Sons and Heirs - Plaintiff

On Appeal from the High Court of Judicature, at Bombay

For the Appellant :- Sir W.V. Harcourt, Q.C., Fitzjames Stephen, Q.C., and E. Macnaghten.

For the Respondent :- Forsyth, Q.C., and Bell.

For the Solicitors Appellant and Respondent :- Lawford & Waterhouse.

Cassion of British Territory - Pereogtive of the Crown to cede Territory - Transfer of Jurisdiction - Concurrence of Imperial Parliament - Indian Evidence Act, 1872 Section 113.

[Para ]

In the provide of Kattywar, subject in its entirety since 1820 to the supreme authority of the British Government, the Thakoor of Bhownuggur was possessed of certain talooks, which had never been brought under the ordinary British administration, and in which the Thakoor exercised a wide civil and criminal jurisdiction, subject only to the supervision, laws, and regulations of the Kattywar Political agency. He was also possessed, within the same province, of other talooks, including Gangli which in 1802 had been ceded to the British Government and in 1815 had been placed under the ordinary jurisdiction of the British Courts of the Bombay Presidency. In 1848, Gangli was included in a lease granted by the British Government to the Thakoor, which by mutual agreement, dated the 23rd of October, 1860, was cncelled, and thereunder the British Government conceded as a favour, not as a right, the transfer of Gangli and other territories from the district of Gogo which was subject to the regulations, to the districts under the control of the Kattywar Political Agency. Delay having arisen in completing this transfer, the Governor General in COuncil, on the 31st of May, 1865, authorised its completion, " Her Majesty's Secretary of of State having decided that Kattywar was not British territory." Thereafter, on the 29th of January, 1866, it was notified, in effect, in the Bombay Government Gazette that Gangli, by reason of the cession thereof by the British Government to the Thakoor of Bhownuggur, was removed from and after the 1st of February of that year from the jurisdiction of the Revenue, Civil and Criminal COurts of the Bombay Presidency. And on the 4th of January, 1873 (after the Indian Evidence Act, 1872 had come into force), it was notified in effect in the Indian Gazette that Gangli was, on the 1st of February, 1866, ceded to the state of Bhownuggur.

Previous to the notification in 1866, a decree for redemption of mortgaged land situate in Gangli was made by the British Court of Gogo, and reversed by the Judge of Ahmedabad; the case being subsequently remanded by the High Court at Bombay to the Judge, who thereupon restored the original decree, notwithstandig that in the interval the first-mentioned notification had appeared. The High Court confirmed this order, holding the notification to be insufficient to prove a transfer of jurisdication. In review of this order, the High Court confirmed the same, on the ground that it was beyond the power of the British Crown, without the concurrence of the Imperial Parliament, to make any cession of territory within the jurisdiction of any of the British Courts in India in time of peace to a foreign power:-

Held, by their Lordships that the appeal from this last-mentioned order passed in review must be dismissed.

The Jurisdiction of the Courts of the Bombay Presidency over Gangli rested in 1866 upon British statutes, and could not be taken away or altered (as long as Gangli remained British territory), so as to substitute for it any native or other extraordinary jurisdiction, except by legislation in the manner contemplated by those statutes.

The transfer of British territories from ordinary British jurisdiction to the supervision, laws, and regulations of a political agency, by excluding such territories from the British regulation and codes theretofore in force therein, and from the jurisdiction of all British Court theretofore established therein, with a view to the substitution of a native jurisdiction under British supervision and control be made without a legislative Act.

Such transfer of jurisdiction, even if valid, would not amount to a cession of British territory to a native State; nor would it deprive the Crown of its territorial rights over the transferred districts, or the persons resident therein of their rights as British subjects. Although their Lordships entertained grave doubts (to say no more) as to the concurrence of the Imperial Parliament being necessary to effect such cession of territory, yet such cession is a transaction too important in its consequences, both to Great Britain and to subjects of the British Crown, to be established by the above decision attributed to the Secretary of State, or by any uncertain inference from equivocal acts.

This was an appeal from a decree of the High Court of Bombay, Made on review on the 24th of March, whereby that Court refused to vary their previous decree, dated the 2nd of December, 1870, affirming, on special appeal, a decree of the Assistant Judge of Ahmedabad of the 11th of August, 1867, which affirmed a decree of the Moonsiff's Court, dated the 19th of April, 1865.

On the 3rd of September,m 1864, Deoram Knji, deceased, an inhabitant of Gangli, filed his plaint in the Moonsiff's Court at Gogo, against the Appellant, Damodar Gordhan, and Naran Kalyanji, and Laoji Kalyanji, claiming to redeem a piece of land situate in the village of Gangli, which had been, as Deoram alleged, in the year 1812 given by him in ghas-gharemya, or mortgage, for the purpose of securing Rs. 60 to one Gordhan Harnath, the father of the Appellant Damodar Gordhan. Ghas-gharemya was explained to be "a mortgage with possession, under which the produce of the land is taken instead of interest."

At the date of the institution of the suit the village of Gangli formed part of the pergunnah of Gogo, in the zillah of Ahmedabad, in the Presidency of Bombay.

On the 26th of September, 1864, the Appellant and the other Defendants filed their written statement whereby they disputed the mortgage, and alleged that the property had been given to Gordhan Harnath in absolute sale in the year 1813. Issues were settled for trial on the 16th of September, 1864, and documentary and oral evidence at great length was adduced on behalf of the Plaintiff and the Defendants on each side, principally with the view of shewing that the document of title relied on by the opposite party was a forgery. On the 19th of April, 1865, the Moonsiff of Gogo made a decree whereby it was ordered that, on payment of Rs. 60, the Plaintiff should recover possession of the property in dispute, and that the Defendant should bear the costs of the suit.

On the 18th of January, 1866, the Assistant Judge of Ahmedabad reversed the Moonsiff's decision with costs. Subsequently, on the 12th of December, in the same year, the High COurt reversed this decree, and remanded the case for a fresh decision.

On remand, by a decree dated the 11th of August, 1869, the district Judge of Ahemdabad confirmed the decree of the Moonsiff of Gogo with costs.

On the 17th of November, 1869, the Appellant preferred a special appeal from the decision from the decision of the district Judge of Ahmedabad to the High COurt of Judicature, Bombay, mainly on the ground that the Judge had no jurisdiction to try the appeal, as the village in which the land was situated had been removed from the jurisdiction of the CIvil COurt before the appeal was decided.

On the 2nd of December, 1870, the High Court pronounced a decree confirming the decree of the lower Appellate Court with costs.

The Material part of the Judgment of the High Court was as follows:-

" Revenue Department.

"Sehore Talooka.

"Gangli

"By Order,

"(Sd.)F.S. Chapman,

"Chief Secretary to Government.

On the 31st of January, 1872, the Appellant presented a petition of review in the High Court. The grounds on which the petition was presented, so far as material, were as follows:-

On the 25th of April, 1872, a rule nisi was granted on the ground of jurisdiction to shew cause why the decree of the High Court (December 2, 1870) should not be reversed or varied, and on the 16th of December, 1872, the rule was made absolute with costs.

The additional evidence referred to comprised the following documents, which were filed in the Court with the petition of review. The first was a copy letter from the Secretary of the Foreign Department of the Government of India to the Acting Secretary of the Government of Bombay, dated the 31st of May, 1865, in these terms:-

The second document was a copy resolution of the Revenue Department of the Government of Bombay, dated the 28th of January, 1871:-

" Revenue Department,

"Bombay Castle, 28th of January, 1871.

The third document was an extract from the proceedings of the Government of Bombay in the Tevenue Department, dated the 14th of April, 1870:-

On the 1st of September, 1872, the Indian Evidence Act came into operation, sect. 113 of which contains the following provision:- " A notification in the Gazette of India that any portion of British territory has been ceded to any native state, prince or ruler shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification."

On the 4th of January, 1873, a notification appeared in the Gazette of India in these terms :- "The Governor-General hereby notifies the fact that the villages mentioned in the schedule here below appended were on the 1st of February, 1866, ceded to the State of Bhownuggur." Among the villages enumerated in the schedule was Gangli.

On the 24th of March, 1873, the High Court at Bombay pronounced judgment on the Appellant's petition of review. The material portions of that judgment are as follows:-

In pursuance of special leave duly granted by the High Court the Appellant appealed to Her Majesty in Council against the last-mentioned decree.

Sir W.V. Harcourt, Q.C. :- The Government of India, as representing the Crown, has power to cede territory to native states, princes, and rulers,and is the sole judge of the considerations of state policy by which such grants of territory must be determined. It is not now argued that the right of the Crown so to cede territory is a derivative right under 21 & 22 Vict. c. 106, section 3. The two main questions dealt with in the judgment of the High Court are:- (a) as to effect of the notification in the Indian Gazette of January, 1873, that territory had been ceded; (b) as to the validity and legality of the cession so notified. As respects (a) the Court was bound under sect. 57, sub-section (10), of the Indian Evidence Act to accept the territorial alterations notified in the Gazette. The notification of 1866, coupled with a subsequent on dated the 4th of January, 1873, made under sect. 113 of the Indian Evidence Act, 1872, settles the fact of cession, though it is unnecessary to argue that it also establishes the right to cede. Ads respects (b) it is distinctly disputed that, as stated by the judgment , only those power which the Company possessed, either alone, or by the direction and with the sanction of the commissioners of the Affairs of India, devolved upon Her majesty's Secretary of State. No doubt that is stated to have been the argument of the Appellant in the Court below ; but nothing can be more inaccurate than to say, as is stated further on in the same judgment, that 21 & 22 Vict. c. 106, transferred the Government of India to Her Majesty. The notion which pervades the whole of the judgment of the High Court is, that the prerogative of the Crown and the power of the Secretary of State are derived from various Acts of Parliament, and have no existence except so far as they are created and defined by such Acts. It also declares that the East India Company and Board of Control, although they could make peace and war, and conclude treaties, had no power to dismember existing British territories, and that two isolated cases of cession cited by Mr. Forsyth in his Cass and Opinions on Constitutional Law, cannot establish the existence of a prerogative not evidenced by the various Acts which defined the Company's status and powers. But as a matter of fact the East India Company from first to last exercised the power of ceding territories; and the Respondent throughout their litigation have failed to shew any case in which parliamentary authority was invoked to validate any cession. So far as the evidence of the fact of cession is concerned, the notification of 1873, under the Indian Evidence Act, 1872, sect, 113, is important. It denotes agreement om the part of the Indian Legislature to a particular cession, so far as such agreement can avail; but the question now argued relates to the necessity of the assent of the Imperial Legislature in order to validate a cession made by the authority of the Crown. For no doubt, whether under 1 & $ Will. 4, c. 85, or under 24 & 25,Vict.c. 67, it was and is beyond the power of the Legislative Council of India to make any law which limits the authority of the Imperial Parliament.

It is argued for the Appellant, that the Governor-General in Council in this case exercised the prerogative of the Crown as viceroy by delegation. This statutes referred to by the High Court affect the legislative and not the executive power of the Indian Government; and the Indian Evidence Act of 1872 is relied upon, not as conferring a statutory authority upon the Government to cede territory, but as providing statutory evidence of cession already made in the exercise of prerogative existing antecedently to that Act.[ Lord SELBORNE:- Of course, if the Crown has no power to cede territory without the consent of Parliament, or except under circumstances of necessity, no Act of the Legislative COuncil of India could create such a power.] The Legislative Council in India is very much like the Queen in Council in respect of its powers and functions. An order by either of them which violated an Act of Parliament, or, indeed, violated the principles upon which parliamentary Government is founded, would be ipso facto void. [ Sir James W. Colvile:- The Governor-General in Council can repeal an Act of Parliament passed before the Indian council' Act.] Yes; but under parliamentary authority. The judgment of the High Court Proceeds (a) On the assumption that the title of the Crown to its Indian possessions is a derivative title from the East India Company, or, at least, a title conferred by Act of Parliament (21 & 22 Vict.c. 106), which is treated as a transfer Act; (b) That the power to cede territory, not being evidenced by any of the Acts of Parliament relating to the Company, was not one of the powers to which the Secretary of State succeeded under the Transfer Act. [The Lord Chancellor referred to Secretary of State for India in Council v. Kamachee Boye Sahaba 7 moo. Ind. Ap. Ca. 479., Where it was put in exactly the opposite way - that the powers of the Company were delegated from the Crown. Forsyth, Q.C., admitted that the prerogative of the Crown to cede territory, so far as it existed, was not derived from or to be sought for in any of the Acts of Parliament relating to India. Whatever cession was made in this case was not made by the Crown, but by officers of state under authority defined by Act of Parliament.] It will be inconvenient to decide this case on side issues. The broad issue is whether the Crown can cede territory without Parliament. As to (a), the title of the Crown as sovereign in India is a paramount title, not in any sense derivative. It did not come from the Company, and has nothing to do with the Act of 1858. It rests on the broad ground that if a subject acquires territory, he acquires it for the sovereign, and not for himself. As the Company acquired land and by insensible degrees ceased to be a purely commercial corporation, the sovereignty of the Crown over land so acquired immediately accrued. The Queen was the paramount sovereign of India long before she was so declared by the Act of 1858, which simply determined the trust administration of the Company, and did not create any title in the Crown which the Crown did not previously possess. No doubt Parliament might have specially limited the prerogative of the Crown; but save so far as such limitation is expressed, the prerogative remains untouched. The Crown is, and always was, the paramount authority over India from the time when Indian territory was first acquired by British subjects; and it is in vain to look to the powers originally exercised by the Company in order to find any limitations to the authority of the Crown, which limitations can only be imposed by Parliament. Yet the East India company, as a matter of fact, from time to time exercised the right of ceding territory. The right of cession resides in the sovereign power, and the question is, where in any particular state does the sovereign power reside ? The sovereign power indifferent states is variously distributed. In America, for instance, for purposes of treaty, it resides jointly in the President and in the Senate; the exact opposite is the case in England. As a general proposition, were the treaty-making power resides, there also resides the power of cession. [Lord Selborne:- Do you contend that the Queen could in time of peace cede a portion of Great Britain?] It is unnecessary to my argument to contend that . [ the Lord Chancellor:- Speaking of treaties, they are sometimes made subject to the approval of Parliament.] There are certain treaties and stipulations which cannot be carried out without the assent and co-operation of Parliament, and in those cases the treaty is presented to Parliament, and incorporated with the Act which gives effect to it,- for instance, money and extradition treaties, however, does not require the co-operation of Parliament. [The Lord Chancellor:- Must there not be distinction in that respect between territories of the Crown in the Government of which a local representative Legislature participates, and those which are governed without such aid?] This is not the case of a constitutional colony, and therefore the distinction need not now be insisted on. [Sir Barnes Peacock referred to the notification, and Pointed out that it involved a transfer of jurisdiction, not a cession of territory.] It is agreed on both sides that there has been a de facto cession. [Forsyth, Q.C.:- That is so. Lord Selborne:- If Sir Peacock is right,we cannot decide upon what in that case would be an imaginary state of facts.] It is agreed on both sides not to raise that point; and under the Evidence Act there is evidence of a de facto cession. [Lord Selborne:- The real question is, whether there was transfer of the village of Gangli from British to foreign territory?] The Court below decided that point, and neither side in appeal disputes it. [Sir Barnes Peacock :- But if Gangli nevertheless remains part of British territory, this Court, under the Evidence Act, must take judicial notice thereof.] It is a fundamental fact in this case that Bhownuggur was foreign territory. [The Lord Chancellor:- The Judges and the Government seen to have been satisfied on the point.]

There is no use in citing, as the High Court has done, the opinions of Grotius, Vattel, Puffendorf, & c, on a question of this constitutional and not international nature. International law does not apply as between a municipal court and the sovereign of the country in which the Court is established. See the debate in the House of Lords, especially the speech of Lord Thurlow, on the cession made at the peace of 1783: Parliamentary History, vol. xxii. pp 430-1, and Forsyth's Case and Opinions, p. 183.

If it is admitted that the Crown can cede territory under circumstances of pressure, why not also under circumstance of convenience and policy, say for rectification of boundaries? Boundary treaties and references to arbitration all involve the right of cession. He referred to the Articles of the Treaty with the Netherlands relating to the cession of the island of Banca, in Brithsh and Foreign State Papers, vol. ii. p. 370, which involved an exchange of subject and of territories; to a royal warrant erecting the Bay Islands into a British colony, in 1852: see British and Foreign State Papers, vol. xli. p. 156; [Lord Selborne:- These were Crown colonies of the simplest character;] to a Treaty with Honduras in 1859-60: see British and Foreign State Papers, vol. xlix p. 13; a Treaty with the Netherlands for an interchange of territory on the Glod Coast of Africa, in 1867: see Hertslet's Commercial Treaties, vol. xii. p. 1194. See the order of the 30th of January, 1854, abandoning the territory of the Orange River, which had been erected into British territory by letters patent dated the 21st of March, 1851: see correspondence on the state of the Orange River Territory, presented to Parliament, April 10, 1854; and Forsyth's Cases and Opinions, p. 185. There is no instance of parliamentary assent being required to cession by the Crown of its territory. In India the Crown has paramount authority over state more or less independent, but not absolutely independent, in virtue of which it recently deposed the Guikowar of Baroda. And if the Government, responsible for the administration of such states, were not at liberty to readjust boundaries according to its views of policy and expediency, such limitation of their authority would be extremely inconvenient.

A long catena of instances in which the power of cession and of exchanging territories has been exercised by the Government of India is found in Aitchison's Treaties, and will be more particularly referred to by Mr. Stephen. Their general character is, that they are not cession under any stress of necessity. They are grants by the sovereign power to its great feudatories in the manner which was common in the earlier history of England. They were often rewards for great services, and were so granted.

It can hardly be contended that all the cession and exchanges there enumerated and set forth were illegal unless or until they were severally confirmed by Parliament. The contention on the other side to that effect is against all authority and all principle. The cession in this case was an act of state, and its validity cannot be called in question in one of Her Majesty's own Courts. The cession and consequent removal removal of the village of Gangli out of the jurisdiction of the District Court of Ahmedabad operated as an absolute bar to the hearing of the appeal on remand by the Judge of that Court, and on the hearing of the petition of review the High COurt ought so to have declared and determined.

Fitzjames Stephen, Q.C., on the same side :- The judgment of the High Court, in substance, decided (a) that the power to cede territory was not one of the powers to which the Secretary of state succeeded under the Act transferring the Government of India to Her Majesty; (b) that the Crown has no power without the sanction of Parliament to cede territory except in cases of necessity; and that, in reference to the Bhownuggnr cession, "there existed no such necessity as is recognised by the publicists;" (c) that sect. 113 of the Indian Evidence Act, though not disallowed is not protected by sect. 24 of 24 & 25 Vict. c. 67, and the Court, therefore, could not follow its directions. In reference to (a), it has already been shewn, and need not be further argued, that the sovereignty of the British Crown over its Indian territories was in no respect derived from the East India Company, but that the powers originally exercised by the Company were themselves derived from and exercised in trust for the Crown. In regard to (c), he repudiated the construction put by the High Court upon sect. 113 of the Indian Evidence Act, to the effect that it purported to give to the Government a power of cession which it did not before possess. The section assumes that a valid cession of British territory to native stato is a legal possibility; and if that is an incorrect assumption the section has no force or operation whatever, Its intent was and is to cut short all question as to the fact of a particular cession having been made, whether by the Crown or by the Secretary of State, under parliamentary powers sufficient of insufficient; and to prescribe the mode in which a valid cession once made should be proved in a Court of Justice.

As to (b), the Bhownuggur cession was, according to the law of England, valid without an Act of Parliament. He referred to Blackstone's statement of the prerogative of making treaties (Stephen's Commentaries [7th ed.] vol. ii8. p 490). Th treaties which it is the prerogative of the Crown to conclude may be divided, for the purposes of this argument, into three classes, namely, those made at the end or war, those made during time of peace, but not in India, and those made in India. With regard to those made at the end of war, it is admitted in the Respondent's case, and is clear, that the Crown has the power thereby to cede territory to a foreign power. The power is said to rest on the ground of necessity, but there is no reason why the Crown should be the judge of necessity at the end of war and the legislative body should be the judge thereof in time of peace. There is no ground for such distinction; for if it be said that the powers of the executive are enlarged by the urgency of the case in time of war, it will be found that in nearly every instance of the conclusion of a treaty of peace there was ample time to consult Parliament if Parliament had a right to be consulted. This country has been more in the habit of receiving than of making cessions;but from the treaty of Breda, in 1667, downwards, except the treaty of Utrecht, there were always restorations or cessions without consent of Parliament. He referred to the Paix de Breda, in 1667 (Koch and Sehell, Historire des Traites de Paix, vol. ii. p. 131); to the treaty of Ryswick, in 1697 (Dumont's Corps Diplomtique, vol. vii. part 2, p. 400); to the treaty of Aix-la-Chaplle, in 1748 ( Koch and Schell, Histoire des Traites de Paix,vol. i. pp. 314, 315); to the treaty of Paris in 1763, in which a considerable number of cessions were made to the French and Spaniards; to the treaty of Versailles in 1783, when the island of Minorca and Florida were given up to Spain, and other cessions made to France. In this last-mentioned year was the treaty whereby the independence of America was recognized. Parliament gave authority in that case to treat, because intercourse with the persons to e treated with had been forbidden by Act of Parliament. The right to cede territory was not given, for it followed as matter of course. See 18 Geo. 3, c. 13, and 22 Geo. 3, c. 46; which latter Act expired before the definitive treaty was concluded. then, again, in this century war was declared by Swdedn against Great Britain in 1810; peace was made on the 18th of July, 1812. In March, 1813, followed the treaty at Stockholm, whereby Sweden combined with England and Russia against France, and Guadaloupe was ceded to her eight months after the peace : see Hertslet's Commercial Treaties, vol. ii. pp. 117, 340; Koch and Schell, Histoire des Traities de Paix, vol. iii. p. 267. In 1814, it was ceded by Sweden to France.

As regards cessions in time of peace, it is suggested that if these were legal the Crown might cede any portion of territory, say the Isle of Wight, to a foreign power. The suggestion must be taken to imply that an adequate reason exists. [Lord Selborne:- Then it comes to a question of confidence in the Crown.] The possible extreme abuse of a power is no argument against its existence; you get beyond the tacit terms of a principle when you assume its capricious application. The suggestion must rank beside the historical question, could King John legally become a vassal of the Pope? and the answer is, in either case, that to do so from caprice breaks up the political fabric, and presupposes the absence of all law. On the other hand, if Charles II. had capriciously ceded the Isle of Wight to Louis XIV., and he had taken it and kept it, would the Court of King's Bench have held the inhabitants British subjects? Arguments from illustration must be sought in less extreme cases. If, however, illustrations from extreme cases are to be relied upon, it would be possible to suggest abuses of power by Parliament as serious as any which could be committed by the Crown. What, for instance, could be said as to the legality of an Act of Parliament making the House of Commons a permanent body, and enabling it to fill up vacancies by its Own voted? The cession of Dunkirk, for an account of which see Dumont's Records Diplomatiques, vol. vi. part ii. p. 432, illustrates actually what has been done. There a conquered town was sold to Louis XIV., and the sale was held to be valid, although the minister who advised it was impeached. Its validity was never questioned in the Court. He referred to the impeachment of Lord Clarendon (State Trials, Vol. vi. p. 338). Again in 1683, Tangiers was abandoned in time of peace, and in 1814, by a treaty between Holland and Great Britain, all conquests were restored to the Netherlands. See the second article of the treaty. He also referred to Encyclopedia Britannica, heading. "Mosquito Shore;" hertslet's Commercial Treaties, vol. xi. p. 447; and to the cession to Greece of the protectorate over the Ionian Islands in 1863.

As regards the cessions which have taken place in India during time of peace, Mr. Forsyth has in his work implied that they were illegal unless 21 & 22 Vict. c. 106, section 67, confirmed them. That is a most erroneous construction to put on the section, and so far from there having been only two cases of cession before the mutiny, there were at least twenty-three. He referred to the Charter Act of 1793, ie., 33 Geo. 3, c. 52, sections 42, 43. After the mutiny of 1857 and the proclamation of 1858, cessions of the greatest importance have taken place, and it would be a most serious thing to say that they were all illegal because they had not been sanctioned by Parliament. Cession and exchanges have been made without that sanction from time to time during our rule in India.

He referred to the following instances of cession of British territory in time of peace made by the Governor-General in Council,and recognised as valid, though without the previous assent or subsequent confirmation of Parliament. In 1782 the Governor-General and Council, on behalf of the Honourable Company, granted to Scindia the town and pergunnah of Broach, in recognition of Scindia's services in effecting the peace of Salbye with the Mahrattas (Aitchison's Treaties,vol. iv. p. 214, No. 62). Broach had been originally ceded to the British Government by the Mahrattas in 1776 (Aitchison's Treaties, vol. iii. p. 34, No. 6) which cession was confirmed in 1782 (Ibid. vol. iii. p. 49, No. 9), and was subsequently returned to the British Government in 1803 (Ibid. vol. iv. p. 221, No. 65). In 1792, after the treaty of Seringapatam, by which Tippoo Sultan was stripped of half his territories, and the subsequent division of such territories between the British Government , the Nizam, and peishwa, the Tippoo Sultan and the Company agreed to exchange certain territories, and concluded a treaty to that effect (Ibid. vol. v. p. 147, No. 27). The Company alos cede a protion of ssuch territories in 1795 to the Rajah of Travncore (Ibid. vol. v.p. 303, No. 53). Again, after the fall of Seringapatam in 1799, the Nizam received, by the partition treaty of Mysore, certain districts in Gooty; and Article 8 of that treaty clearly assumed the power to exchange territories with the Rajah of Mysore (Ibid. vol. v. p. 55, No. 9). Atreaty was subsequently concluded with the Rajah of Mysore in 1799 (Ibid. vol. v. p. 158, No 28), Article 15 of which provided for the adjustment of the lines of frontier of the contracting parties by means of exchange of otherwise, which exchange was subsequently effected in 1803 (Ibid. vol. v. p. 165, No. 29). Again, in 1805, an exchange or territories was effected by the company with the Maha Rao of Ulwar for mutual convenience (Ibid. vol. iv. p. 143, No, 39). The Government of Madras, about the same date, ceded to Tondiman, the chief of the Poodoocottah State, the fort and district of Keelanelly (Ibi. vol. v. p. 331, No. 59), which cession was subsequently confirmed by the Court of Directors on condition that the district should not be alienated, and that it should revert to the British Government in certain events specified. In 1806 the territory of Sumbhulpore and Patna, of which the Rajah of Nagpore had been stripped in 1803 by the treaty of Deogaum, was restored to the Rajah gratuitously, the British Government renouncing all future claim thereto, " and the Maharajah shall possess the same degree of sovereignty over them as he possesses over the rest of his dominions" (Ibid. vol. iii. p. 99, No. 19). Certain territories and rights in Bundelcund were ceded to Govind Rao, the chief of Jalaon, in 1806 (Ibid. vol. iii. p. 150, no. 30). In 1807, in Khuddea, a native state was voluntarily create out of territories which had been for three years in British possession (Ibid. vol. iii. p. 187). An exchange of territory was effected by the British Goveernment with the Nawab of Oudh in 1816 (Ibid. vol. ii. p. 164, No. 39); with the Guikowar of Baroda in 1817 (Ibid. vol. vi. p. 332, No. 74); with Scindia in 1818 (Ibid. vol. iv. p. 253, No. 68); with the Nizam in 1822 (Ibid. vol. vi. p. 92, No. 14); with the Chief of Colaba in 1822 (Ibid. vol. vi. p. 183, No. 43); with the Rajah of Cherra Poonjee in 1829 (Ibid. vol. i. p. 89, No. 18); and with the Rajah of Satara (Ibid. vol. iii. p. 20, No. 3); with Punt Sucheo, one of the eight hereditary ministers of the old Mahratta empire (Ibid. vol. vi. p. 43, No. 8). Then as regard cessions, the British Government ceded, in 1820, to Rajah Goodursed, Shah of Gurhwal, a portion of his hereditary possessions, of which he had been deprived (Ibid. vol. ii. p. 59, No. 16); in 1822 the district of Anjar to the Government of Cutch (Ibid. vol. vi. p. 444, c. 14); in 1831 a portion of Assam to the Rajah Poorunder Singh (Ibid. vol. i. p. 132, No 46); in 1833 certain territory in the Kearda Doon to the Rajah of Nahun (Ibid. vol. ii. p. 325, No. 89); in 1846, the fort of Malwan and six villages to the Rajah of Nalagurh (Ibid. vol. ii. p. 333, No. 94); in 1856 the fort of Sindwa to Holkar (Ibid. vol. iv. p. 294, No. 75). For cases of cession, 1857-68, see a precis thereof in Wheeler's Memorandum of Proceedings, August, 1868, Political, A. No. 317. In addition to those cases, the British Government ceded in full sovereignty to Nepaul all the lands in the north of Oudh, which he had lost in 1815, and we had ceded to Oudh, and which became ours on the annexation of Oudh in 1856 (Ibid. vol. ii. p. 223, No. 55).. Two important cases of exchange were, first in 1824, by treaty between the British Government and the king of the Netherlands (Ibid. vol. i. p. 231, No. 84), whereby the latter ceded to the former all his establishments on the continent of India (see Art, 8 of that treaty), and the town and fort of Malacca and its dependencies (Art. 10); and , on the other hand, Fort Mariborough (bencoolen) and all the English Possession in the Island of Sumatra were ceded to the Netherlands. This was a case of cession by the Crown in which the power of the Crown to make such cession was tacitly admitted by Parliament, for 5 Geo. 4, c. 108 (see also 6 Geo9. 4, c. 85), legalised the transfer of singapore and the possession ceded, by the Dutch, by the Crown to the East India Company; and although the above treaty was recited, the Act did not confirm it, but recognised its validity in the exercise of the royal prerogative alone. The case is a strong one, for Bencoolen, part of the territory ceded, was one of the oldest possessions of the Crown, and originally a presidency named in several Acts of Parliament (see especially 13 Geo. 3, c. 63, ss., 40 ; 42 Geo. 3, c. 29). The second was a treaty concluded with Scindia on the 2nd of December, 1871, whereby the British Government ceded to Scindia, in exchange for territories ceded by him, certain villages situated in the pergunnahs of Mote and Bhandere in Jhansi.

Finally, as to the cession in this cases; in 1815, owing to a serious abuse of power, the Rawul of Bhownuggur's British estates were brought under the jurisdiction of the British Courts of the Bombay Presidency and the revenue payable by him was raised. The anomaly of the position was, that in his Kattywar estates he continued to exercise his former powers, paying a fixed revenue, while in his British estates, including his two largest towns and his place of residence, he was subject to ordinary British laws. The Rawul never ceased to complain of this, and to bring forward many claims against the British Government, which led to the agreement of the 23rd of October, 1860, by which the Thakoor's revenue was fixed at Rs. 52,000 in perpetuity, and his other claims were adjusted.

Suppose all the grants just enumerated to be invalid great inconvenience would result; the greatest publicity was given to them, many of them were made in open durbar; they were made by the supreme executive authority, and the principle fieri non debet factum valet at least must avail in their behalf.

As regards international law, its doctrines are often mere matter of moral speculation, which it is an abuse of terms to call law. any treaty, however, which according to the usage of nations is regarded as valid, ought to be so regarded by Courts of Justice. He referred to Grotius, bk. ii. ch. 6, sections 3, 4 and 6; Phillimare's International Law, vol. i. pp. 309; also p. 313, section 266. The English nation, Crown and Parliament, having stood by whilst numerous cessions were made after the mutiny, it mutiny, it is too late now to question their validity. These were acts of state done by the sovereign power with regard to other powers invested with a greater or less degree of independence, and now to deny their validity would be a breach of faith. He referred to Kent's Commentaries [12th ed.] vol. i. p. 285; Wheaton's International Law, Part iii. c. 2. Applying the principle there stated suppose scindia or Nepaul was arguing for the validity of a cession to him, he would say: I received it from the Governor-General in Council directly authorised by Her Majesty; there were thirty or forty cases and no question was raised; the treaty-making power of the Governor-general in Council has been recognised by Parliament, under which the English have acquired vast territories, and the Crown itself has ceded territories in Europe without any interference by Parliament. As to the state of things in the United States, there is a wide difference between a country with a written constitution and one without. [Sir Barnes Peacock:- Is not 21 & 22 Voct. c. 106, itself a written constitution?] No, certiainly not; the sovereign power of the Crown over India does not depend on that Act. He referred to the tanjore case 7 Moore's Ind. Ap. Ca. 529., and contended that an act of state when complete must be recognised as valid by the Courts of the country. The constitution of this country has been settled piecemeal as questions have from time to time arisen. The executive Government is the prerogative of the King, but a control by Parliament is recognised. This principle applies to cessions of territory as well as to every act which the Government has to do. Such act when once done, if within the sphere at all of the executive government, must be deemed valid if unquestioned . [Sir Barnes Peacock:- Could the Governor-General in Council with consent of the Secretary of State aliene Bengal and all its revenues to the King of Delhi?] Yes, subject to responsibility for so doing. It would be indecent to suppose a wanton cession. The power to declare a disastrous war exist and is recognised by law, and is far worse than the power to cede territory. The power to cede belongs to the sovereign power, its exercise may be controlled beforehand, and the onus is on the other side to shew that the power has been curtailed. [Sir Barnes Peacock:- By the Indian Evidence Act the Court must take judicial notice of what are the British territories in India. Is it precluded from doing so by a proclamation of the Governor-General in Council? Lord Selborne:- If the Court must take judicial notice of the existing territories, it must take judicial notice of a cession. The Lord Chancellor:- There has been, by general consent, a de facto cession, the question is whether there has been a de jure cession.] The High Court say: "We have no knowledge of the reasons which induced the transfer of Gangli and other villages to the state of Bhownuggur, but it is certain that there existed no such necessity as is recognised by the publicists." If necessity is the test of a de jure cession, the sovereign must be the sole judge of the necessity.

Finally, as regards the alleged indefeasibility of allegiance according to the law of England,as laid down in Calvin's Case Ca. Rep. pt. vii. p. 1. allegiance to the sovereign attaches on the birth of the subject, and is a personal relation, not dependent upon either residence or territory. See Hale's Pleas of the Crown, vol. i. p. 68. [Lord Selborne:- Though a citizen cannot determine his own allegiance, some authority in the state perchance may do so.] The Crown, under certain circumstances, may absolve the subject from allegiance; there is no warrant for the notion of the High Court that allegiance results from a sort of matrimonial contract between sovereign and subjects which no power can divorce.

Mr. Forsyth, Q.C., for the Respondents:- The question is, whether a British subject, having prosecuted his suit in a British Court Court in British territories, established by regulations which are themselves authorised by Act of Parliament, can be stopped in his suit and deprived of the fruits of his decree by an act of the state, which I admit to be and act of the Crown. The distinction as regards the power of the Crown to dismember the empire lies between the power of the Crown in certain emergencies to cede territories (e.g. conquered territories, which are subsequently restored to an enemy) which have never been the subject of parliamentary legislation, and the power to deal with territories of the Crown which have been the subject of Act of Parliament, and to the inhabitants of which Parliament has given rights not conferrable by the Crown. unless this distinction is preserved, the prerogative of the Crown must be held to include the power of repealing Acts of Parliament. Gangli was in the position of being part of a territory, to the inhabitants of which parliament had given certain rights. It was acquired under the Treaty of Assam in 1802. The Regulating Act (13 Geo. 3.c.63, section 36) gave power to the Governor-General in Council to pass regulations in Bengal, and in 1807, 47, Geo.3, c.68, was passed, which applies to the presidency of Bombay. Sect. 1 conferred legislative power on the subordinate Presidency. See the first three sections; and see also 3 & 4 Will.4, c. 85. [Lord Selborne:- Assuming the power of the Crown to cede existed before that Act, is there anything in the Act to interfere with it? Sir W. Harcourt referring to sect. 9 of the Regulating Act; Bencoolen, which was afterwards ceded, being in pari mareria with Madras and Bombay.] See Bombay Regulation of 1827, Reg. I., section 6, and Reg. II., section 16, and Appendix E. When parliament has settled the constitution and Government of a territory and erected Courts of Justice therein, the prerogative of the Crown does not exist to take away rights so conferred and give the territory to a foreign power [The Lord Chancellor:- If Parliament were by Act this year to set up Courts in Fiji, you say that such Act would take away the power of cession from the Crown which existed preciously.] Yes, the former prerogative of the Crown, if it existed, would thereby be limited. [The Lord Chancelore:- Do you admit that where Parliament has not interfered the Crown would have power to cede?] I admit thus far. that at the conclusion of war the Crown may cede territory, to ensure peace, if has never has nerve been the subject of parliamentary legislation; but otherwise the Crown has no such power. [ The Lord Chancellor;- Have you any authority for the proposition ? Ad I read Vattel, as cited b the Court below, he considers that the Crown has that power.] There is no authority in any English text writer to the effect that the Crown has an unlimited power of cession power of cession; the other side have cited none. But even if such power exists a strong distinction is obvious between territory which has been subject to parliamentary legislation and territory which has not been and is not so subject; and the alleged right of the Crown to cede the former involves the right of the Crown to interfere with a Parliament. [ Lord Selborne:- If the antecedent power of the Crown is admitted, the Act of Parliament in the particular instance must be shewn to have taken it away.] As regards such antecedent authority, we must look at what the Crown has done, and it is contended that it has no power to cede territory in time of peace. [The Lord Chancellor:- Surely there is plenum dominium unless you shew a limitation. Lord Selborne:- If the Crown may accept the duties of sovereignty, as in the case of Fiji, it lies on you to shew that it may not give them up. The Lord Chancellor:- Have you any authority of any institutional writer commanding respect that the Crown has not that power?] See Wheaton's International Law [Dana's 8th ed.] sect. 541, part 4, chap. 4, "Dismemberment of States by Treaty;" a passage which deals with a power of ceding territory by a treaty of peace following the close of war,and which will therefore apply a fortiori as to the power in time of profound peace, when there is no war. It is to the effect that the treaty making power in respect of dismemberment is, under most free governments, limited either by express prohibition of necessary implication from the nature of the constitution. Under the constitution of the old French monarchy, the State-General declared that Francis I. had no such power, but Louis XIV. asserted that power after the disuse of the States-General, and ceded territory as the price of peace. This power was also limited by the French constitution established after 1789. The next section states: "In Great Britain the treaty-making power as a branch of the regal prerogative has in theory no limits, but it is practcally limited by the general controlling authority of Parliament, whose approbation is necessary to carry into effect a treaty by which the existing territorial arrangements of the empire are altered." [The Lord Chancellor:- That opinion seem to be rater against you; When the co-operation of Parliament is required, no doubt its assent is necessary.] See also Puffendorf, book vii. c. 5, section 9: "The Power of Sovereign over the Estates of his Subjects;" who denies the authority of a prince to transfer his kingdom or his subjects, and says,that the consent of the people is necessary. In respect of a partial alienation of territory, the consent both of the inhabitants of the parts retained and of the portion alienated, is equally required. And when Savoy and Nice were ceded by the King of Sardinia to the Emperor of the French at the close of the Austro-Italian war there was what was called a plebiscite, and the people were ostensibly asked to consent to the cession. [Lord Selborne:- Then , whatever Parliament might say, the inhabitants of Bhownuggur must also be consulted, The Lord Chancellor:- The gist of the authorities is, that if the inhabitants of the territory cut adrift are physically strong enough enough, they are morally justified under sch circumstances in asserting their independence.] Though an absolute prince may cede, a constitutional monarch cannot of his own will withdraw his Government and protection. Richard II., for instance, in order to get rid of the Duke of Lancaster, ceded to him the duchy of Guienne, but the people took up arms, and Richard revoked the grant: see Rapin's History of England, vol. i. book x. p. 466. [Lord Selborne:- That also is very much against you, for all those French possessions have long ago been ceded without Act of Parliament.] See also Grotins, bool ii. c. 6, sections 7, 8, 9, De acquisitione derivativa; Phillimore's International Law, c. 14, pars. 262, 263; Vattel book i.c. 21. section 262. if it is held that the Crown has by its prerogative plenary authority to cede, then it might cede Dover or the Isle of Wight at once. [The Lord Chancellor:- Not if, in the case of the United Kingdom, the Plenum dominium is in Crown and Parliament together. A Crown colony is distinguishable.] And a Crown colony where Parliament has interfered is distinguishable from a Crown colony where it has not interfered. The Crown can introduce whatever form of Government it pleases; if parliamentary Government is introduced the regal prerogative to cede is ipso facto limited, and except in the case of Bencoolen, has never been exercised.

When we made peace with America after the War of Imdependence in 1783, the action of Parliament was dictinct.[The Lord Chancellor:- That was not a case of cession at all.] The words used in the treaty amount to cession. [The Lord Chancellor:- The Crown recognised a successful revolt of its own subjects, whom Parliament had treated as rebels.] See parliamentary History, vol. xxiii. col. 354. 22. Geo. 3,.c. 46, authorised the Crown to treat with the view to cession; and Mr. Wallace, Lord Rockingham's Attorney-General, said that he knew of no prerogative which authorised the King to part with his sovereignty. Lloyd Kenyon, however, maintained the contrary. Then, again, the cession of Nova Scotia and a small portion of Canada was was made in time of peace ; and the queation came before the House of Commons in 1783. He referred to the speeches of Mr. Wallace and of Sir Adam Ferguson in Parliamentary History of that year (col. 517, 518). [Sir w. Harcourt:- The treaty of 1783 included a number of cessions, and the House of Commons censured them.] There was also a debate in the House of Lords (see Parl. Hist. Vol. xxii. p. 430), and the speeches of Lord Loughborough and Lord Carlisle were referred to. The latter nobleman referred to the difficulty which arose in the impeachment of Lord Clarendon, namely, that of proving that Dunkirk had ever become annesed to the Crown; and if that had been proved I say the Crown could not have parted with it without the assent of Parliament [The Lord Chancellor:- The expressions there used,passing in the heat of party warfare, so not shew that the power does not exist. If the Government were to cede Gibraltar now we should hear similar expressions.] No instance has been adduced on the other side of a cession by the Crown, except of acquisitions made during the course of a war; none whatever of any territory which had ever been the subject of parliament legislation. As regards Florida and Minorca, no Act of Parliament applied to them. [Sir James W. Colvile:- An Act applied to Newfoundland, and yet St. Pierre and Miquelon were given up by the treaties of 1763.] I do not find any Act [Stephen Q.C :- 15 Geo. 3, c. 31, and a later Act). Those were subsequent to the cession. All the cessions from 1667 to 1783 were of conquered territories unaffected by Act of Parliament.

Now as regards cessions by the Crown in time of peace, Sir W. Harcourt has cited four cases and Mr. Stephen, six. The only case, however, which resembles this is the case of Bencoolen, which is a case against the Respondent. But the Act which recognised it as a Presidency did no more; no institutions were established Therein. Next in order is the cession of the Bay Islands to Honduras in 1859; but no legislative Act had ever referred to them. As regards the Gold Coast, no Act of Parliament ever gave it a form of government. [The Lord Chancellor referred to 6 & 7 Vict. c. 13, and to the cession made in 1867. If that cession was valid it is a case exactly in point.] Then comes the question relating to the Orange River territory. The 43rd volume of Parliamentary Documents supplied to the House of Common contains a history of it.

As to Dunkirk, it is very doubtful if it was ever fully annexed to the British Cr own: see state Trials, vol. vi. pp. 338-9, the impeachment of Lord Clarendon, where the objection was taken that Dunkirk had never been annexed by Act of Parliament. Tangier was part of Charles II.'s dowry; it was given up, and Parliament never had anything to do with it. The cession to the Netherlands of the island of Banca was, in 1814, at the close of the war; it was a conquered place, and not to be found in the statute book. He referred to the recital of the treaty in State, Papers, 1814-15, p. 370. He also distinguished the case of Guadaloupe as a conquered island ceded to Sweden as part of a war arrangement in order to induce her to join the coalition. He referred to the speech of Lord Palmerston in 1863, relative to the cession of the protectorate over the Ionian Islands. [The Lord Chancellor:_ Lord Palmerston, who had great knowledge on these matters, stated broadly his opinion to the House of Commons that the Crown could cede any territory of which it was the possessor. Have you any instance of an application to Parliament to authorise a cession?] In the case of conquered territory at the end of a war it would not be necessary; and I am not aware of any cession of territory ever subjected to British legislation. [The Lord Chancellor:- Bencoolen and the Cape Coast.] The case of Bencoolen no doubt is an exception. [Sir W. Harcourt:- Under the treaty of 1783, a large part of Canada was ceded which had been legislated for by 14 Geo. 3, c. 83. SIr Barnes Peacock:- What do you say about boundary treaties?] They involve questions of geographical difficulty, and a line is drawn by the award of commissioners. [Sir Barnes Peacock:_ But according to your argument the consent of Parliament and of the inhabitants would be required in order to draw the line.] If the Crown can cede territory what becomes of the allegiance of the inhabitants of that territory? He referred to Doe d. Thomas v. Acland 2 b. & c. 779. The question there was whether the child of one born after the Declaration of Independence was an alien or not: see observations of Abbott, C.J. [ SIr Montague E. Smith:- The same question would have arisen if the power had been exercised by Parliament.] Yes, but Parliament and the Crown together can absolve from allegiance, the Crown singly can do nothing of the kind. [The Lord Chancellor:- If the Crown can cede, it can end the allegiance.] Then it was argued on the other side in effect fieri non debet factum valet, because the Crown represents England ; but that involves a question of fact, does the Crown represent England? The Crown certainly has no greater prerogative in India than in England. The cession in this case was made by the Secretary of State under 21 & 22 Cict. c. 106, or Governor General in Council, independent of the Crown, exercising as was thought the powers of the old East India Company which were formerly possessed by the Board of Directors and the Governor General in Council. And even if the Crown could not cede jure corone, there is the further question whether the Secretary of State for India, or the Government of India, either jointly or separately, could make this cession under any authority given by Act of Parliament to the East India Company, the Court of Directors, the Board of Control, or the Governor General in Council. He referred to 13 Geo. 3, c. 63, section 9, and 33 Geo. 3, c. 52, sections 40, 42, and 43; also to Act VI. of 1859, section 2. By a series of Acts from 7 Geo. 3, c. 57, Indian territory was vested in the Company down to 3 & Will. 4, c. 85, which continued the possession in it. The Crown could not by its executive powers give away such territory which by Act of Parliament was vested in the Company. Although many cessions took place whilst by Act of Parliament territory was vested in the Company ; they were nevertheless all ultra vires and invalid. The company ruled during a state of things which was one more or less of constant warfare. There are two regulations which shew that the Company invoked the legislative rather than the executive power in order to cede territory : Bengal Reg. XXII. of 1812, and Reg VII. of 1816; and the mere cession of territory did not exempt the ceded territory from the jurisdiction of the Company's Courts. See also Bengal Reg. VII. of 1822. He then examined several of the Indian cases cited by Mr. Stephen to shew that they were either ultra vires, or of cession made in time of war. None of those prior to 1858 profess to have been cessions by the Crown at all.

Mr. J.D. Bell on the same side:- The Treaties before the Act of 1858 having now been fully examined, it remains to argue on the foundation of the peculiar position of India since it was placed under the direct Government of the Crown through a Secretary of State. He referred to 21 & 22 Vict. c. 106, section 1; to 24 & 25 Vict. c. 164, which gave power to Her Majesty by letters patent to establish Courts of Justice, and to transfer territories from one jurisdiction to another. The High Courts were created by Her Majesty, and the charter of 1862, clause 15, gave a power of appeal from all Court in the country. In 1862 a new Act, 27 & 28 Vict. C. 15, section 3, was passed, and fresh letters patent issued. and the power to transfer territories from one jurisdiction to another was withdrawn from the Crown and given to the Governor-General. When an Act of Parliament has given Her Majesty power to legislate,and she has placed a particular district under charter Court, she has no power by an executive act to transfer the same to another jurisdiction within India, and still less to a foreign jurisdiction without: see Campbell v. Hall Cowp. 209; 20 State Tr . 239. Doe d. Thomas v. Acland 2 B. & C. 779. The cession withdraws from the inhabitants of the territory the protection they had previously enjoyed.

If the Queen has power independently of Parliament to alienate territories, the question raised under the Indian evidence Act, 1872, is out of place, otherwise this judgment holds that a notification published in the Gazette does not debar the Court from inquiring into the validity of the cession. [The Lord Chancellor:- Is the Evidence Act of any materiality except to shew a de facto cession?] He referred also to 29 & 30 Vict. c. 115.

Sir W.V. Hareourt, Q.C., in replay:-

With regard to the power o the British sovereign, as compared with that of the supreme executive Government of the united States, see Story's COnstitutional Law of the United States, bk. iii. c. 37, ยง 1503; also a paper by Alexander Hamilton [A,D, 1788], on the cession of 1783, No. 69 of the federalist, "Comparison between the President and the Kings of Great Britain on the one hand, and the Governor of New York on the other ," Upon the question whether there has been a de facto cession, he referred to the notification of the Bombay government, which evidenced a handing over of the territory to political agent, which was equivalent to a cession. It is agreed that without a cession of territory the Crown has no power to transfer the inhabitants thereof from one jurisdiction to another. But so far from the power of the Crown to cede being limited to the occasion of necessity on the conclusion of war, victory has often been accompanied by cession; for example, at the peace of 1763, and by the treaty of 1814. It is true there are certain treaties to which the consent of Parliament is necessary, namely, those treaties in which an express stipulation is inserted that they shall not take effect until approved by Parliament. Those have been principally treaties relating to money loans during war. There was a loan to Austria in 1797, to Portugal in 1809, the Dutch loan in 1815, and other loans in 1823, 1831, and 1832. Then comes another class of treaties, the channel fisheries, 1839; extradition treaties with France in 1852; the Sardinian loan, 1855; the loan to Turkey in 1855; the Newfoundland fishery, 1857; the Greek loan in 1864, and the Danubian works loan in 1808. Treaties of commerce are laid before Parliament before they are ratified, one with France in 1860, with France in 1872. Therefore there is a parliamentary consent to a special class of treaties, which is not found in the case of cessions. As to the treaty of 1783, made in pursuance of an Act of Parliament passed in 1782, which authorised the recognition of of the independence of America, negotiations having been forbidden by a previous Act; the effect of it was not to cede territory, but to declare them an independent people, who had been declared rebels by parliamentary enactment. After the negotiations of 1783 were laid before Parliament, the coalition moved resolutions in the House of Commons, in order to turn out the Shellburne ministry; the fourth of those resolutions was in condemnation of certain cessions made by the Crown, which nevertheless remained valid. It is admitted on the other side that the Indian cessions enumerated by Mr. Stephen were all made, but their validity is denied; in other words, all our relations to the Indian chiefs and their territories are shaken by that argument. Bencoolen was just as much legislated for by Parliament as the Presidency of Bombay itself; Yet it was ceded. The sound principle is, that so long as the territory remains British territory, the Crown cannot alter its internal arrangements and jurisdiction without the consent of Parliament; but the power of cession is paramount, and independent of parliamentary consent. [Sir Barnes Peacock referred to 21 & 22 Vict. c. 106. Has the Crown power to give up its prerogatives over territories like the present, which are included under that Act?] That Act is no the origin of the Crown's title. It abolished the trust of the Company, and revived the original title of the Crown in full, which is paramount to the Act. [Sir Barnes Peacock:- If Gogo is foreign territory, and the jurisdiction of the Indian Courts has ceased, had not the jurisdiction of the Queen in appeal also ceased? And if we reverse the High COurt's judgment, are we to affirm that of the Zillah Court, which reversed that of the Moonsif, and which was passed before the session?] The case would, if the cession is upheld, stand as it stood on the 18th of January, 1866, and every subsequent proceeding would be set aside.

Their Lordships reserved their judgment, and subsequently intimated that it appeared to them that some uncertainty or obscurity existed as to the nature of the transfer or cession of the town of Bhownuggur and the villages of Dhundooka and Gogo to the Thakoor of Bhownugger. Further, it appeared to their Lord. ships that, assuming the point of constitutional la to be determined in opposition to the opinion of the High Court of Bombay, the application of this principle to the case remained to be considered, possibly with this result, that it was not shewn that the cession of territory to the Thakoor was a cession in full sovereignty by the Government of India to a native ruler. And their Lordships further intimated that on this point they were prepared to hear a further argument at the Bar.

Accordingly, on the 16th of February, 1876, the case came to be re-argued in reference to the facts of the particular cession in dispute in this case.

Cases Referred :-

Campbell v. Hall Cowp., 209; 20 State Tr . 239.

Doe d. Thomas v. Acland, 2 B. & C. 779.

Secretary of State for India in Council v. Kamachee Boye Sahaba, 7 moo. Ind. Ap. Ca. 479.

Thomas v. Acland, 2 b. & c. 779.

JUDGMENT

On the 28th March the judgment of their Lordships was delivered by

28.3.1876

Lord Selborne :- In this suit, which was instituted in the British Court of Gogo for the recovery or redemption of certain land situate in the Tillage of Gangli, on the footing of mortgage, a decree for the Plaintiff (whose representatives are the Respondents here) was made by the Moonsiff of Gogo, but was reversed on appeal by the Assistant Judge of Ahmedabad. On a special appeal by the Plaintiff to the High Court of Bombay, the case was remanded to the Court of Ahmedabad for re-trial.

So far there was no question of the jurisdiction of these different Courts over the land in controversy, as territorially situate within their proper limits, and over the parties to the suit as resident within the same limits. But, in 1866, after the remand by the High Court, the jurisdiction of all these Courts is alleged by the Appellant to have ceased by reason of the cession by the British Government of certain territory, within which Gangli was included, to a native potentate, the Thakoor of Bhownuggur. A notification that the territory so alleged to have been ceded was removed, from and after the 1st of February in that year, from the jurisdiction of the Revenue, Civil, and Criminal Courts of the Bombay Prosidency, appeared in the Bombay Government Gazette of the 29th of January, 1866. The District Judge of Ahmedabad proceeded, nevertheless, to rehear the appeal, and, on such rehearing, he restored the original judgment of the Moonsiff of Gogo in favour of the Plaintiff. Thereupon the Defendant brought another special appeal to the High Court of Bombay, alleging the notification in the Gazette of the 29th of January, 1866, as proof that the re-hearing had been coram non judice; but the High Court, on the 2nd of December, 1870, rejected this special appeal, holding that notification to be insufficient to shew that the jurisdiction of the Court of Ahmedabad had ceased before the rehearing. On a petition, however, by the Defendant for a review of that order, accompanied by some further documentary evidence, the High Court appears to have considered that a transfer of lands from British territory to the jurisdiction of a native prince, by the authority of the Secretary of State for India, might have been authorised by the statute 21 & 22 Viet. c. 106, Section 3; and a review of the order of the 2nd of December, 1870, was therefore directed. On the review, the Judges of the High Court held that it was beyond the power of the British Crown, without the concurrence of the Imperial Parliament, to make any cession of territory within the jurisdiction of any of the British Courts in India, in time of peace, to a foreign power; and on that ground they made the order of the 24th of March, 1873, now under appeal, confirming their former order of the 2nd of December, 1870. The question, whether the law thus laid down by the High Court of Bombay is correct, was fully and ably argued at this Bar in July last; and their Lordships would have been prepared to express the opinion, which they might have formed upon it, if, in the result of the case, it had become necessary to do so. But having arrived at the conclusion that the present appeal ought to fail without reference to that question, they think it sufficient to state that they entertain such grave doubts (to say no more) of the soundness of the general and abstract doctrine laid down by the High Court of Bombay, as to be unable to advise Her Majesty to rest her decision on that ground.

Before, however, the judgment, rejecting the special appeal to the High Court of Bombay can be reversed, their Lordships must be satisfied that there was, in this case, an actual cession of territory, which had the effect, before the rehearing by the District Judge of Ahmedabad, of depriving Gangli of the character of British territory, and its inhabitants of the status and rights of British subjects. That question, considered as one of fact in this particular case, apart from the general constitutional question as to the power of the Crown to make a cession in any case, does not appear to have been so fully considered by the High Court of Bombay as their Lordships think it deserved to be. It has now (on the 16th of February last) been the subject of a separate argument at this Bar.

The facts material to the determination of this question may be thus stated.

There are in the province of Kattywar one or more talooks of large extent and value belonging to the Thakoor of Bhownuggur, which (whether that province ought, or ought not, to be regarded as a part of Her Majesty's dominions) have never been brought' under the ordinary administration of the British Government in India. The Thakoor is also the proprietor of other large talooks (the town and port of Bhownuggur, and many other villages and places, including Gangli), forming part of the districts of Dhundooha and Gogo, & c, which, having previously been part of Kattyiwar, were ceded by the Peishwa to the British Government in 1802, by the treaty of Bassein. The territory so ceded was left, till 1815, under native administration; but in that year it was brought under the ordinary jurisdiction of the British Courts of the Bombay Presidency, and so remained until those proceedings in 1866 the effect of which is now in question. As to these latter estates, the Thakoor, and all his dependents residing thereon, were (beyond controversy) subject to British law and jurisdiction.

Before 1802 the whole province of Kattywar was divided between the Peishwa and the Guikowar, who claimed over it sovereign rights, chiefly consisting of the exaction of tribute. A small number of estates in the province were held rent-free ; but far the greater part of the chieftains paid tribute of the same character (so far as their Lordships can judge) as the land-revenue which is paid to the Government in British India; and Mr. Aitchison, in a work of authority, referred to on both sides at the Bar (Treaties, vol. vi. p. 366), states that the sovereignty of the country was understood by the chiefs to reside in the power to which this tribute was paid. The rest of the rights of the Peishwa in those parts of Kattywar which had not been transferred to the British Government by the treaty of Bassein were ceded to Great Britain in 1817.

With respect to the Guikowar (leaving out of consideration one or more talooks, of which that prince is at the present day the direct proprietor), it appears that in 1807 a settlement was made between the Guikowar and the chiefs tributary to him, through the intervention, and under the guarantee, of the British Government ; engagements being then taken for the payment of a fixed revenue by those chiefs whose estates were not held rent free. The amount of tribute then fixed for the Kattywar estates of the Thakoor of Bhownuggur was Rs. 74,000; and as it was thought expedient to consolidate the whole of the claims over all the Thakoor's estates, an agreement was made, with his consent, for the transfer of the revenue payable by him to the Guikowar for his Kattywar estates to the British Government as part of the consideration for certain arrangements which were at the same time made for the support of a contingent force. In 1820, by a further agreement, the Guikowar engaged to send no troops into Kattywar, and to make no demands upon the province, except through the British Government. Since that date the supreme authority in Kattywar (as far as it had been previously vested in the Peishwa or in the Guikowar), has been exercised solely by the British Government. The tribute payable by the different chiefs has been collected by the British authorities, the Guikowar receiving from them the share of it to which he is entitled according to the existing agreements. The tribute payable in 1871 by the Thakoor of Bhownuggur (in respect of the aggregate of his Kattywar estates and of the estates included in the alleged cession of 1866) is stated in the Kattywar Local Calendar and Directory of that year (a book referred to during the last argument as containing correct information on public matters relating to the province) as amounting in the whole to Rs. 154,917 per annum, of which Rs. 128,060 were collected in right of, and retained by, the British Government; Rs. 3999 were collected in right of, and paid over to, the Guikowar; and the sum of Rs. 22,858 was a customary sub-tribute, paid, under the name of " zortullubee " to the Nawab of Joonaghur, one of the chiefs of the province, who appears formerly to have established some kind of superiority over the rest.

Their Lordships have now to refer to the judicial administration of Kattywar. Down to 1831 this appears to have been left, without any regular control, in the hands of the chiefs. But in that year (a Political Agency having been established at Rajcote in 1820) the British Government constituted a Criminal Court of Justice in Kattywar, under the Presidency of the Political Agent, with three or four chiefs as assessors, for the trial of capital crimes in the estates of chiefs who were too weak to punish such offences, and of crimes committed by petty chiefs upon one another, or otherwise than in the exercise of their recognised authority over their own dependents. Until 1853 every sentence passed by this Court was submitted to the Bombay Government for their approval. (Aitchison, vol. vi. p. 367.) In 1862 the whole of this administration was reorganized. The province was then divided into four districts (the eastern districts including all the talooks belonging to the Thakoor of Bhownuggur), in each of which were placed officers called Political Assistants, with other British magistrates under them, all under the control of the Political Agent. The entire number of Kattywar states under separate chiefs (large and small is 188, of whom 96 pay tribute to or in right of the British Government only, 70 to or in right of the Guikowar only, and 9 (of whom the Thakoor of Bhownuggur is one) to or in right of both Governments (Kattywar Directory, pp. 54-56). These chiefs were, by the arrangements made in 1862, distributed into seven different classes. To the first class (consisting of four or five, of whom the Thakoor of Bhownuggur is one,) unlimited criminal and civil jurisdiction, with the exception of criminal jurisdiction in certain cases over "British subjects" (however that expression ought to be interpreted) was allowed. The jurisdiction of the second class (either originally, or by the effect of a Circular Order afterwards issued, No. 14 of 1866) was substantially the same. The jurisdiction of the four next classes was restricted in criminal matters to limited powers of fine and imprisonment; and in civil matters to the cognizance of suits of limited amount, the greatest powers (those of the chiefs of the third class) being to imprison for seven years, to impose fines of Rs. 10,000, and to decide civil suits of Rs. 20,000 value; while the sixth class could only imprison for three months, impose fines of Rs. 200, and decide civil suits of Rs. 500 value. The seventh, or lowest class of all, was entirely deprived of all civil jurisdiction; but in criminal cases might imprison for not more than fifteen days, and impose fines not exceeding Rs. 25. All other jurisdiction, both civil and criminal, throughout the province, beyond the limits of that allowed to the chiefs, was reserved to the British officers and magistrates, under the authority of the Political Agent; and in 1871 there was an establishment of thirty-one such officers and magistrates in the whole. (Directory, pp. 520-527.)

In 1863 two elaborate Codes of Regulations (based upon the Indian penal and other codes) were promulgated, with the sanction of the Indian Government, for the guidance of the British judicial officers and magistrates in Kattywar. (Directory, pp. 176-253.) These Codes established, both in name and in substance, regular and fully-organised Courts of Justice, with powers to execute warrants and issue commissions throughout the province, and to take security from suspected persons in the name of the Queen. (Arts. 39, 55, 154 of the Criminal, and Article 104 of the Civil, Code.) It may be added that, on the face of these Codes (especially by Article 10 of the Civil Code, which pointedly distinguishes the chiefs of Kattywar from " Sovereign Powers " and " Independent Chiefs "), and by several later Circular Letters of the Political Agents (No. 11 of 1866, No. 2 of 1867, No. 11 of 1869, and that of the 7th of May, 1868), the whole jurisdiction exercised by the chiefs of all the seven classes is treated as conferred upon them by the British Government.

These being the circumstances which their Lordships think material to a correct understanding of the arrangements between the Indian Government and the Thakoor of Bhownuggur, and of the steps taken to carry them into effect, it now becomes necessary to advert to those arrangements. It appears that the difference between the position of the Thakoor in his Kattywar estates, in which he continued to exercise his ancient powers, paying a fixed revenue, and his position in his British estates (including his two largest towns and his place of residence), in which since 1815 he had been subject to ordinary British laws, was (in the language of Mr. Aitehison, vol. vi. p. 374) " very irritating to him." With a view (among other things) to remove or diminish this source of discontent, an agreement was concluded between him and the Indian Government in 1860, which is printed at pp. 416-420 of the same volume of Mr. Aitchison's work.

It is entitled, "Settlement, framed according to resolutions of the Bombay Government, Nos. 3826 and 3829, dated 23rd October, 1860:"--a title which has the aspect of an agreement as to rent and other terms of tenure, rather than that of a treaty between the head of a sovereign state and a foreign or independent power. When the particular terms of this agreement are examined, they confirm that impression.

By the 1st and 8th Articles, the Thakoor of Bhownuggur and the British Government reciprocally agreed to cancel, from and after the 1st of May, 1861, " the lease of the villages of the Thakoor's talooks in the districts of Dhundooha, Ranpore, and Gogo, which was executed in a.d. 1848," and " instead thereof, the Thakoor agreed to pay, for the whole of the villages enumerated in that lease, a fixed jumma of Rs. 52,000 yearly for ever," which sum " shall not be in any way affected by the result of any action or other process brought by any party against the Thakoor's right of possession, in any part of the said talooks; nor shall the said estates (excepting Bhownuggur, with Wudwa, Sehore, and the ten villages thereof, about to be attached to Kattywar) be exempted on account of this payment from any general taxation, not coming under the head of land tax or rental, which Government may impose on their districts under the regulations.

It appears, therefore, that the talooks in Gogo, including Gangli, which were " about to be attached to Kattywar" had been included in the lease of 1848, which was then to be cancelled : and that, although the Government did not reserve as to those particular talooks the same right of " general taxation" which they expressly reserved as to the residue of the Thakoor's British estates, which were intended to continue subject to the Bombay Regulations, still those talooks were included in the estates in respect of which a fixed jumma of Rs. 52,000 was to be paid in perpetuity by the Thakoor.

By the 2nd Article the Thakoor agreed (certain questions of account between himself and the British Government being thereby adjusted) "to pay up his Kattywar tribute." (i.e., the jumma for his Kattywar property, which had been fixed in perpetuity in 1807), yearly in full, according to settlement."

By the 3rd and 9th Articles it was reciprocally agreed that the port dues and customs of the port of Bhownuggur should continue to be collected at British rates, and by the British Government; but that when collected the whole net produce of the port dues and three-fifths of the net produce of the Customs (as " the share of the Thakoor") should be paid over to the Thakoor by the Government, who were to retain, as "the share of Government," the other two-filths of those Customs.

The town and port of Bhownuggur were part of the territory to which the 7th Article (that directly bearing upon the present question) relates. That Article is in these words: " Upon the above conditions Her Majesty's Government agree as follows: Government concede, as a favour, and not as a right, the transfer of Bhownuggur itself, with Wudwa, Sehore, and ten subordinate villages, from the district of Gogo, subject to the Regulations, to the Kattyivar Political Agency.

This is not the language of cession. It is prima facie nothing more than an engagement for the transfer of the places mentioned (including Gangli), which were then, beyond question, British territory, from a regulation province to an extraordinary jurisdiction. The other Articles are consistent with this view.

After the conclusion of this agreement in 1860, a delay of some years followed before anything was done with a view to give effect to the provisious of the 7th Article; "owing" (as Mr. Aitehison states, vol. vi. p.374) "to some doubts as to the precise status of Kattywar with respect to British laws." In 1865, however, the Thakoor pressed for the completion of the arrangement. In the letter from the Secretary to the Government of India of the 31st of May, 1865, to the Acting Secretary of the Government of Bombay, the measure is described as " the contemplated transfer of the town of Bhownuggur, of the district of Sehore, and of the villages in Dhundooha and Gogo, to the supervision, laws, and regulations of the Kattywar Political Agency." By that letter the Governor-General in Council authorised "the contemplated arrangement" being at once carried into effect; with the reservation, however (for which the Government of Bombay were directed carefully to provide), that " in the event of gross misconduct on the part of the Thakoor" (of which the Government of Bombay were to be the judges) "these territories should revert." A reason was added for holding that " the projected transfer would have been legalised " by the agreement of 1860, viz., that " Her Majesty's Secretary of State for India had decided that Kattywar was not British territory."

Their Lordships think that if such an opinion had been expressed by the Secretary of State for India (of which no direct evidence is found in the papers before them), and if that opinion could be proved to be well founded, it would still not have the effect of converting a transfer of certain British territories from ordinary British jurisdiction " to the supervision, laws, and regulations of the Kattywar Political Agency," into a cession of British territory to a native state. Such a cession would be a transaction too important in its consequences, both to Great Britain and to subjects of the British Crown, to be established by any uncertain inference from equivocal acts.

Their Lordships assume (though the precise language used does not seem to be quite apt for that purpose) that what was intended was to confer upon the Thakoor of Bhownuggur within the " transferred " districts as large a criminal and civil jurisdiction as that which he exercised in his estates situate within the proper limits of the Kattywar Political Agency, subject only to the same supervision and control of the Kattywar Political Agent to which he was subject in respect of those estates.

But such a grant of jurisdiction (if the Government of India or the Crown, without a legislative Act, had been able to grant it) would not have deprived the Crown of its territorial rights over the " transferred " districts, or the persons resident therein of their, rights as British subjects. Whatever may have been the opinion of the Indian Government as to the effect of what was done (concerning which their Lordships will only observe that the documents of 1870 and 1871 take it for granted that a cession of territory to a native state had been made, which is the point to be determined), their Lordships' judgment must be founded, not on mere opinions, but on facts; and they find, in point of fact, that there was no cession of territory in this case, unless it can be deemed to have been made by the agreement of 1860, or by the notification in the Bombay Government Gazette of the 29th of January, 1866 (issued, no doubt in obedience to the directions of the Indian Government, contained in the letter of the 31st May, 1865); which merely declared, that "in accordance with the Convention, &c." (i. e., with the agreement of 1860), the villages in question were, " from and after the 1st of February, 1866, removed from the jurisdiction of the Revenue, Civil, and Criminal Courts of the Bombay Presidency, and transferred to the supervision of the Political Agency in Kattywar, on the same conditions as to jurisdiction as the villages of the talooka of the Thakoor of Bhownuggur heretofore in that province."

Their Lordships agree in the reasons given by the Judges of the .High Court of Bombay, on the 2nd of December, 1870, for holding this notification insufficient for the purpose intended; and they are unable to find in any of the other documents afterwards submitted to that Court on the application for a review any good reason for the subsequent departure of the High Court from that opinion, so far as to admit a review. The second notification of the 4th of January, 1873, which appeared in the Indian Gazette, after the review had been ordered, also left the case substantially where it stood before. That notification was merely to the effect that the villages mentioned in the schedule "were on the 1st February, 1866, ceded to the State of Bhownuggur." The nature and effect of the act, so described as a "cession to the state of Bhownuggur" remains (as it was before) a proper subject for judicial inquiry. What was attempted was, in their Lordships judgment, neither more nor less than a rearrangement of jurisdictions within British territory, by the exclusion of a certain district from the regulations and codes in force in the Bombay Presidency, and from the jurisdiction of all the High Courts, with a view to the establishment therein of a native jurisdiction under British supervision and control. But this could not be done without a legislative Act, which, in this case, was never passed. By the Imperial Statute 3 & 4 Will. 4, c. 85, Section 43, a general power of legislation (with certain exceptions not material for this purpose) was given to the Governor General in Council as to (among other things) "all Courts of justice, whether established by His Majesty's charters or otherwise, and the jurisdiction thereof." This power is, in substance, continued by 24 & 25 Vict. c. 67, Section 22, though the particular clause of the former statute is thereby repealed. By the 24 & 25 Viet. c. 104, Section 9, the High Courts of the several Presidencies were established, with such jurisdiction as Her Majesty should by her letters-patent confer upon them ; and under the same statute each of those Courts was also to have and to exercise, " save as by Her Majesty's letters-patent might be otherwise directed, and subject to the legislative powers in relation to the matters aforesaid of the Governor General in Council," all jurisdiction, power, and authority previously vested in any of the East India Company's Courts within the same Presidency which were abolished by that Act. It is unnecessary to refer to later enactments, which only modified these provisions in a way not affecting the present case. The jurisdiction, therefore, of the Courts of the Bombay Presidency over Gangli rested, in 1866, upon British statutes, and could not be taken away or altered (as long as Gangli remained British territory) so as to substitute for it any native or other extraordinary jurisdiction, except by legislation in the manner contemplated by those statutes.

Upon two subordinate points in this case their Lordships think it right to add that they agree with the view taken by the High Court of Bombay.

Nothing in their judgment turns in this case upon the Indian Evidence Act of 1872, Section 113. The Governor General in Council being precluded by the Act 24 & 25 Viet. c. 67, p. 22, from legislating directly as to the sovereignty or dominion of the Crown over any part of its territories in India, or as to the allegiance of British subjects, could not, by any legislative act, purporting to make a notification in a Government gazette conclusive evidence of a cession of territory, exclude inquiry as to the nature and lawfulness of that cession. And with respect to the competency of the Courts of the Bombay Presidency to proceed with the suit between these parties, if Gangli had, by any valid cession, ceased to be British territory, their Lordships agree with the High Court that the foundation of the jurisdiction of those Courts over the subject-matter of this suit and the parties thereto was territorial, and that it could no longer be exercised (whatever might be the stage or condition of the litigation at the time), after such a valid cession had boon made.

Their Lordships will humbly advise Her Majesty to dismiss the appeal.

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