A Constitutional History of India, 1600-1935

Arthur Berriedale Keith

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351978750
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This book, first published in 1936, provides a comprehensive description and analysis of every constitutional aspect of British rule in India from 1600 to 1936. Beginning with a description of the East India Company before Plassey, its constitution, administration of settlements, and relation to the Indian states, the book closes with an account of the reforms of the 1930s, the events leading up to the White Paper and an analysis and elucidation of the Government of India Act 1935.

Chapter I
The Company Before Plassey; Its Constitution, Relation to the Indian States, and the Administration of its Settlements and Territories

1. The Constitution of the Company

THERE WAS little to suggest the acquisition of dominion in India in the debut of the Governor and Company of Merchants of London trading into the East Indies to whom Queen Elizabeth, after much hesitation, granted a charter of incorporation on December 31st 1600. The aims of the Company were essentially commercial. Trade with the East was essential in order to obtain those spices necessary to render palatable the limited foodstuffs available under the primitive agricultural conditions of the day and other products prized for their utility or beauty in the West. The traditional route passed through the dominions of the Sultan of Turkey, and Elizabeth in 1581 granted a charter to the Levant Company to trade with these dominions under the terms of the concessions made by the Sultan in 1579, when he granted privileges of trade and residence, with exemption for most purposes from Turkish criminal and civil jurisdiction, to English subjects. The Company sought to extend its trade to India, and in 1592 secured a fresh charter authorizing them to trade to India overland through Ottoman territories.

Serious difficulties, however, were placed by the Sultan in the way of the development of overland trade, while the discovery of a practical passage to India by the Cape of Good Hope suggested a new line of approach. Political conditions favoured action. The Bull of May 1493 of Pope Alexander VI had assigned India to Portugal in its division between that country and Spain of the undiscovered non-Christian world; and subsequent treaties between these countries had recognized with modifications the allocation. Since 1580 the sovereignty of Spain had been extended over Portugal, and the Portuguese rights over Indian territories had passed to the Spanish Crown. But the Reformation had undermined the validity of Papal dispositions, and the revolt of the Netherlands involved the decision to strike a determined blow at Spain through depriving her of the monopoly of Eastern trade. The ambition and courage of Dutch merchants in association were displayed to great advantage in the expeditions of 1595–6 and 1598–9 to Java, and, if they were not to find a Dutch monopoly replacing that of Spain, early action by the merchants of London was plainly necessary. At a meeting at Founders' Hall under the auspices of the Lord Mayor on September 22nd 1599, the vital resolution was arrived at to form an association to trade direct with India. In securing this end the Levant Company was clearly much interested; the first governor of the Company which received the royal charter in 1600 when all hope of peace with Spain had been abandoned was also governor of the Levant Company.

In these circumstances all that was contemplated by the merchants, and their more aristocratic associates who supported them at Court, was the creation of an association to carry on trade by dispatching ships to Indian territories and by founding therein trading stations with the permission of the local rulers, on lines similar to those on which trade was conducted with the Ottoman dominions. There could be no question, as in the case of the patent granted to Sir Humphrey Gilbert in respect of Newfoundland,¹ of the assumption of sovereignty over newly discovered lands. But the Crown was entitled in the view of the lawyers of the day to regulate by the prerogative foreign trade and the actions of its subjects beyond the realm, and on the basis of these powers the royal charter was issued. It conferred corporate character and juristic personality on the Earl of Cumberland, and the 217 knights, aldermen, and burgesses with him associated, granted them essential commercial privileges, and provided them with authority to govern themselves and their servants.

The Company was authorized freely to traffic and trade 'into and from the East Indies, in the countries and parts of Asia and Africa, and into and from all the islands, ports, havens, cities, creeks, towns, and places of Asia and Africa, and America, or any of them, beyond the Cape of Bona Esperanza to the Streights of Magellan'. This right was to endure for fifteen years, but might be determined on two years' warning, if the trade did not appear profitable to the realm; otherwise a renewal for a further fifteen years was contemplated. It was to be an exclusive right, but the company might grant licences to trade. Unauthorized traders, on the other hand, were to be liable to forfeiture of their goods, ships and tackle, and to imprisonment and such other punishment as might seem meet and convenient for so high a contempt of the 'prerogative royal, which we will not in that behalf have argued or brought in question'. The legality of the grant of such a monopoly was not then seriously in question; it is part of the genius of the common law that it accords with essential economic and political conditions, and at that date the successful prosecution of trade with the East demanded the concentration of authority in the hands of a single body which could deal with native princes, regulate sailings, and contend against rival European traders. It is significant that in 1602 the Dutch traders consolidated their forces in the Dutch East Indies Company, which rapidly developed into a power able to dictate to the State the terms on which it was to be aided. Strengthened by this help, it was successful in its competition with the London Company for control of the Spice Islands, which formed the prime object of interest to both; the failure of James I to afford adequate protection or to avenge the massacre of English traders at Amboyna in 1623 resulted in the virtual exclusion of the London Company and its restriction to the Indian peninsula, with decisive results for the future of British rule.

The constitution of the Company was simple, falling within the type of 'regulated companies' as opposed to 'joint-stock companies'. In such companies members were subjected to certain regulations and enjoyed certain privileges, but traded on their own capital. In practice the Company in its early days functioned as a syndicate with a concession for the Indian trade, which it worked by forming minor groups from among its members who found the capital for each separate voyage, and whose liability was normally limited to the voyage for which they had subscribed, though they might be forced to contribute to a further venture if fresh capital could not be raised from a new group of subscribers. After 1612 the subscribers threw their contributions into a joint stock, though not yet on a permanent basis, the joint stock being formed for a series of voyages only.

Membership of the Company was accorded in the charter to those who had purchased a share in the first voyage, and was granted subsequently to such persons as took up shares in later voyages, the amount contributed varying from time to time. Membership could also be claimed by the sons of members on reaching the age of twenty-one. Further, membership could be secured through service or apprenticeship and the payment of a small sum on admission. Or members might be admitted in return for a fixed cash payment, usually of a hundred pounds, and membership was from time to time conferred on distinguished individuals who were deemed likely to be able to aid the Company.

The control of the Companys business was democratic in principle. The Company was authorized to elect annually a governor and twenty-four committees, the precursors of the later directors, who were to have the direction of the Company's voyages, the provision of shipping and merchandises, the sale of merchandise brought to England, and the managing of all other things belonging to the Company. Other officers were soon added, including a deputy governor, secretary, and treasurer. In general the governor and committees managed the general detail of the voyages, but they called together a general meeting of the members when they deemed it necessary.

To the Company were conceded certain limited powers of a legislative character, based on those recognized at the time as appropriate for municipal and commercial corporate bodies. The Company might assemble themselves in any convenient place, 'within our dominions or elsewhere', and there hold court for the Company and its affairs, and might 'make, ordain, and constitute such and so many reasonable laws, constitutions, orders, and ordinances, as to them or the greater part of them being then and there present shall seem necessary and convenient for the good government of the said Company, and of all factors, masters, mariners, and other officers, employed or to be employed in any of their voyages, and for the better advancement and continuance of the said trade and traffick'. They were further authorized to impose such pains, punishments, and penalties by imprisonment of body or by fines and amerciaments as might seem necessary or convenient for the observation of such laws and ordinances. Both laws and punishments must be reasonable and not contrary or repugnant to the laws, statutes or customs of the realm of England. It will be seen that the power given is essentially a power of minor legislation, forbidding any fundamental alteration of the principles of English law, and limited drastically by the character of the punishments which could be inflicted in respect of contraventions. The limited character of the Company's authority is clearly marked in the earliest copy of such laws extant, that printed in 1621. They deal chiefly with the management of the Company's meetings and its officers in England, the administrative arrangements in the East, whereby Bantam in Java and Surat were made the principal factories, and the employment of shipping. They assert in accordance with the charter the illegality of private trade and order factors to seize goods so shipped and to send them home, and they require—an ominous hint of evils to come—that all presents made by foreign princes, rulers, or commanders to members of the Company shall be brought into the general account of the Company.

It is important to contrast the terms of this grant with those made to the companies or individuals who contemporaneously were seeking to establish themselves in the newly discovered Western lands. The charter of Charles I to the governor and company of the Massachusetts Bay in New England confers on the general meeting of that company the right to elect officers and admit members, but the legislative power is in wider terms, 'to make Lawes and Ordinances for the Goode and Welfare of the saide Company and for the Government and Ordering of the saide Landes and Plantasion and the People inhabiting and to inhabit the same'. There is here unmistakably a definite power to legislate for and govern territory, which is not contemplated in the case of the London Company. It was understood in the widest sense by the people of Massachusetts when the charter was, by resolution taken in London, with the acquiescence of the Crown, carried to the plantation, and despite the restriction that the laws and ordinances should not be contrary or repugnant to the laws of England, there was enacted a code of legislation which in certain vital respects went in severity towards dissident members of the community beyond English law. In the same spirit it was held in the colony that it was entitled to execute the fullest powers of penal jurisdiction, and it was not until 1683–4 that the Crown felt itself strong enough to secure the forfeiture of the charter on the score that the colony had usurped power not granted to it, as in the imposition of taxation on English imported goods.¹

The powers of the London Company were manifestly unequal to the situation unless supplemented, but the Crown made good this defect by a further exercise of prerogative. For each voyage the Crown granted to the 'General' in command of the vessel the right to inflict punishment for capital offences, such as murder or mutiny, and to put in execution martial law.² At this time the extent and the authority of the Crown's right to authorize martial law was quite uncertain, and it was plainly necessary that there should be authority to maintain discipline during long voyages. The position of the Company itself became better defined in May 31st 1609 when James I granted a fresh charter making that of Elizabeth perpetual, subject, however, to the right of the Crown to determine it on three years' notice on proof of injury to the public. This was followed up by a royal grant of December 14th 1615, authorizing the Company itself to issue commissions to their captains with the important proviso that in capital cases a verdict must be found by a jury. The power, it will be seen, was intended to cover the case of the maintenance of discipline on board ships, but as soon as the Company established on the Indian coast trading settlements the question of maintaining discipline inevitably arose. In their transactions with the natives of India the Company's servants were of course subject in the absence of agreement to the contrary to the control of the native ruler, but it was not to be expected that the local authority would concern itself with disputes arising among the members of a foreign settlement. The difference between the local systems of law, whether Hindu or Muhammadan, and English law was inevitably such as to render it natural that local authorities would not concern themselves with the disputes inter se of tolerated intruders.

James I, therefore, on February 4th 1623, extended the power of the Company by authorizing it to grant commissions to their presidents and chief officers for the punishment of offences committed by the Company's servants on land, subject to the same provision for trial by jury in capital cases, thus, at last, placing the Company in the position to provide more or less effectively for the due government of its servants, both on the high seas and in India.

It is unnecessary to consider the adverse conditions which in the later part of James's reign and in that of Charles I affected the prosperity of the Company, whose interests, as already noted, after 1623 were perforce concentrated on the Indian peninsula as a result of the greater strength of their Dutch rivals, backed as they were by the whole force of the State. The Company suffered also from the doubtful faith of Charles I, who granted to Sir William Courteen and his associates a licence to trade with the East Indies in 1635. The rival company is best known from its settlement at Assada in Madagascar; its success was limited, but it depressed severely the fortunes of the London Company. It was to Cromwell that the Company owed some alleviation of both external and internal difficulties. Their just claims against the Dutch were recognized by the treaty of Westminster 1654 which awarded them £85,000 compensation for the massacre of Amboyna and for the illegal exclusion from the trade with the Spice Islands. Moreover, the Dutch were required to restore the island of Pulo Run in the Bandas, which would have afforded the Company a renewed opportunity of competition in the trade in cloves. The island, however, was finally assigned to Holland by the Treaty of Peace of 1667. Moreover, Cromwell borrowed £50,000, which was never repaid. On the other hand, he imparted decisive strength to the Company by bringing about the merger with it of what was left of Courteen's association, the separate stocks of the Company being united in a single joint stock. Cromwell's charter is lost, but there is no doubt that it virtually, on October 19th 1657, reconstituted the Company in the form in which it was established by the charter of Charles II on April 3rd 1661.

Under the charter the Company was established on a regular permanent joint-stock basis, and voting power at its meetings was accorded to each member on the basis of one vote for every £500 subscribed by him. To the Company thus reorganized, and enjoying the royal favour largely through th...