JUDGMENT
Turner, Officiating C.J., Pearson and Oldfield, JJ.
1. On the 22nd June 1871, the plaintiff, a hanker at Bareilly, advanced to the defendant Rs. 1,20,000 to bear interest at one per cent. per mensem, and with the following stipulations: that whatever interest might remain due at the end of each year should be added to the principal and bear interest at the rate agreed; and that, in the event of the plaintiff finding it necessary to resort to legal proceedings for the recovery of any sum due to him the debt should, even after decree, bear interest at the rate agreed. As security for the loan, the defendant mortgaged a large number of villages. Default having been made in the payment of principal and interest, the plaintiff, on the 15th September 1876, instituted this suit to recover Rs. 2,17,402-8-0, due in respect of principal and interest up to the date of suit and future interest at the rate agreed, by bringing to sale the estates mortgaged.
2. The defendant admitted the execution of the mortgage-deed and the receipt of the consideration; he also admitted that no moneys had been paid in respect of principal or interest; but he pleaded that the stipulation for the payment of compound interest was a penal provision which the Court was not hound to enforce; and that the stipulation for the payment of interest after decree at the rate of 12 per cent. was inoperative, in that it could not oust the discretion of the Court to award interest on the sum decreed at such rate as the Court might think proper. The defendant also pleaded that, of the estates mortgaged, nineteen were not within the North-Western Provinces nor within British India, but were within the territory of a Foreign Prince, having been ceded to His Highness the Nawab of Rampur, and that the Court had no jurisdiction to order the sale of these estates.
3. The plaintiff contended that he was entitled to interest at the rate agreed, and that the estates to which the last plea referred were from of old and still continued to be British territory; that the alleged cession conferred on the Nawab merely the right to receive the public revenue assessed on the estates and not territory in sovereignty; that the Nawab was not competent to accept territory in sovereignty; and that territory in British India could not be ceded without the consent of Parliament, which consent had not been obtained.
4. Seeing that the issue relating to jurisdiction raised important questions of law, this Court, with the consent of the parties, called the case up to its own file for trial.
5. Inasmuch as the claim affects estates admittedly within the jurisdiction of the Courts of Bareilly, as well as estates which are alleged to be outside the area of the territorial jurisdiction of those Courts, we must dispose first of the issues relating to interest. (After disposing of these issues the judgment proceeded as follows:) We find that the plaintiff is entitled to recover Rs. 1,20,000 principal, and Rs. 97,402-8-2 interest up to date of suit, and interest on the whole debt Rs. 2,17,402-8-0 at the rate of 12 per cent. from the institution of the suit until realisation.
6. It remains for us to determine whether, for the satisfaction of the amount due or to become due, the Courts of Bareilly would be competent to order the sale as well of the estates which lie within the territory alleged to have been ceded to the Nawab of Rampur as of the estates which admittedly still remain in the District of Bareilly.
7. The Nawab Mahomed Yusuf Ali Khan Bahadur having rendered conspicuous services to the British Government during the Mutiny, it was determined to confer on him a substantial reward. It was at first proposed to make over to him the pargana of Kashipur adjoining Rampur on the north-west, but bounded on three sides by British territory. The inconvenience of the existence of a “Foreign State” in the midst of British territory was pointed out to the Government of India by the Lieutenant-Governor, North-Western Provinces, on the 20th January 1860; and for this and other reasons it was suggested that, in substitution for Kashipur, the Nawab should receive certain villages in the District of Bareilly, which had once formed part of the Rampur territory and had been taken from it at the close of the last century, and also certain villages in the District of Moradabad. These proposals were sanctioned, and Mr. Inglis, the Collector of Bareilly, in the early part of the year 1860, gave possession to the Nawab’s agents of the villages in Bareilly, and among them, of the nineteen villages before mentioned. The revenue records were at the same time delivered to the Nawab’s representatives, and “proclamation of the change was made throughout the whole of the assigned tract.” On the 19th May 1860, the Government, North-Western Provinces, reported Mr. Inglis’ proceedings to the Government of India, and on the 23rd June 1860, a sanad was executed by the order of the Viceroy and Governor-General in the following terms:
Whereas Furzund Dil Pizeer Nawab Mahomed Yusuf Ali Khan Bahadur, Nawab of Rampur, exhibited from the commencement of the rebellion to the end his unswerving loyalty to the British Government by affording personal and pecuniary aid, protecting the lives of Christians and rendering other good services, to the satisfaction of Government, the Nawab has already been thanked, a killat of distinction has been conferred upon him, the number of his salute guns has been increased, and an addition has been made to his titles. In further recognition of his services, the Government hereby bestows on him the villages in Bareilly and Moradabad as per separate schedules, assessed at Rs. 1,28,527-4-0, in perpetuity, from generation to generation. The above villages are now annexed to the old territory of the Nawab on the sumo conditions on which he holds that territory.
8. The mames of the nineteen villages appear in the schedule entitled “List of villages situated in Bareilly.”
9. The transfer of the villages to the Nawab excited the apprehensions of the zamindars who petitioned the Government of India that, on the expiry of the settlement, their proprietary rights might be maintained. The substance of the petition having been communicated by the Lieutenant-Governor, to the Nawab, His Highness addressed a Kharita to the Lieutenant-Governor, in which, referring to the confident hope expressed by the Lieutenant-Governor that he (the Nawab) would not fail to consider the rightful claims of the petitioners, the Nawab assured His Honour that, if it pleased the Almighty, the rights of these petitioners as well as of others in the same situation would be duly respected and regarded, inasmuch as he had in his administration made a point of governing his subjects on the recognised principles of equity and justice which obtained under the British rule.
10. On the 7th March 1862, a despatch was addressed by the Secretary of State to the Governor-General, of which the following paragraphs are material:
(i) I have received and considered in Council your letter, dated 22nd June 1861, relative to the substitution, with the consent of the Nawab of Rampur, of villages amounting in value to Rs. 1,28,500 for the pargana of Kashipur as the reward of his services during the recent disturbances.
(iii) I learn…with much satisfaction that the Nawab has freely and willingly consented to accept villages in the Bareilly and Moradabad districts, yielding about Rs. 1,28,000, in lieu of the Kashipur pargana, which he is stated to have estimated as prospectively worth to him two lakhs of rupees per annum.
(iv) Among the papers submitted with your despatches is a memorial of some of the proprietors of the transferred estates, setting forth in temperate language objections which must be admitted to be far from unreasonable to the arrangement you have made.
(v) The transfer to a Native State of villages which have been long under British administration, and formed part of one Regulation Province, is always objectionable. I observe that all those villages which have been transferred to the Nawab of Rampur by the present arrangement have ever since our acquisition of Rohilkhand belonged to the District oither of Bareilly or Moradabad. They appear to be all held direct from Government, their respective proprietors being the sudder malguzars paying their revenue to the Collector without the intervention of any talukdar.
(vi) The Nawab must understand that, in these villages, all that he acquires by the transfer is the right to collect and appropriate the assessed revenue, the amount of which cannot be increased daring the period of existing engagements; and that, after the expiration of the present settlement, the proprietors will be entitled to reassessment with the Nawab on the same principles as are accorded by your officers to the villages similarly circumstanced in the District from which they arc unwillingly transferred.
(vii) I am glad to observe that you have directed that the Nawab be informed that you expect him to respect existing rights and tenures. I am of opinion that a stipulation to this effect should be inserted in the sanad of grant which I request may be done, and that a copy of the sanad may be forwarded for my information.
11. The Government of India, having received from the Nawab the kharita above mentioned, considered it unnecessary to alter the sanad which had been already executed. Replying to the despatch of the Government of India on this subject, the Secretary of State, in a despatch dated 9th February 1863, observed:
Her Majesty’s Government regret that, in the original grants transferring the several tracts of country, no words were introduced for the maintenance of existing rights in the land; they do not wish you to adopt any other measures for the furtherance of the object in view than such as may be resorted to without giving offence to the respective Chiefs or exciting mistrust in their minds.
12. It was subsequently discovered that, owing to similarity of names, an error had occurred in the assessment of the villages. To rectify this error, it was proposed that the Nawab should re-transfer to the British Government Piparia and Chakarpur, but should remain in possession as muafidar of these villages, which should be subject to the Civil, Criminal and Revenue Regulations in force in British territory; and that in exchange for Piparia and Chakarpur in Serouli, he should receive Piparia and Bhikampur in pargana Chowmehla. The Nawab assented to these terms in a khut, dated 22nd March 1864, and the arrangement was communicated to the Secretary of State. In a despatch, dated 7th November 1864, the Secretary of State approved the alterations that had been made; and observed that “the instructions of Government that a territory yielding an annual revenue of between Rs. 1,28,000 to Rs. 1,29,000 be made over to the Nawab in exchange for the pargana of Kashipur were fulfilled.” The despatch continues: “Under these new arrangements, the Nawab will continue to hold, but only as muafidar and subject to British Civil, Criminal, and Revenue Regulations, Piparia and Chakarpur (worth Rs. 1,681) lately made over to him in full sovereignty under a misapprehension that they were identical with two villages of the same name…(iv) Her Majesty’s Government are gratified that the Nawab should have again complied with your request involving a small loss to him of revenue and diminution of his jurisdiction. A communication to this effect should be made to His Highness.”
13. From the year 1860, when Mr. Inglis gave possession to the Nawab, up to the present time, it has not been shown that the British authorities have exercised any administrative or judicial functions in the villages transferred. On the other hand, it is shown that in November 1862 the Sadr Diwani Adalat, North-Western Provinces, refused to disturb an order of the Judge of Bareilly declining to issue process in execution of a decree of the Privy Council against certain estates of the defendant in this suit on the ground that they had been transferred from British territory to that of the Nawab of Rampur (Misc. R.A. No. 1384 of 1862, decided the 1st November 1862). It has not been denied on the part of the plaintiff that, from the date above mentioned, administrative and judicial functions have been exercised in the transferred villages under no other authority than that of the Nawab.
14. The documents to which we have referred and the admitted facts leave no room for doubt that there has been not merely an assignment of revenue but a transfer of territory. We assent to the argument that in such arrangements we are not to look to documents as operating by their own force to transfer sovereignty–Kent’s Commentaries, 10th ed. vol. i, Section 177. We are to look to what was done; though we may consider the language of documents as evidence of what was intended to be done. The circumstance that the arrangement was recorded in a sanad is not incompatible with a cession. It is not inconsistent with usage in this country that a grant of sovereignty or territory by the Paramount Power to a Feudatory should be expressed in a sanad. The East Indian Company in 1818 entered into a treaty with the Nawab of Bhopal, whereby it was stipulated that the Nawab and his successors, although bound to act in co-operation with the British Government and to acknowledge its supremacy, should remain absolute rulers of their country–Aitchison’s Treaties, ed. by Talbot, vol. iii, 370; yet when, as the reward for services in the mutiny, pargana Bairsea was granted to the Bhopal State in sovereignty, the grant was expressed in a sanad–Aitchison’s Treaties, ed. by Talbot, vol. iii, 374. So also treaties had been made with Holkar in 1805 and 1818, but when in 1844 the guddee became vacant, intimation of the bestowal of the principality on Maharajah Tookajee and the heirs of his body lawfully begotton was conveyed to him by sanad. Pattiala is the largest of the Sikh States. In recognition of the assistance rendered by the Maharajah during the Nipal war, portions of the Keonthul and Bughat States were conferred on him and his heirs for ever by sanad dated 20th October 1815. At the close of the Sikh war, the Maharajah received a sanad, dated 22nd September 1847, recognizing him as entitled to continue in possession of his ancient hereditary estates with all Government rights thereto belonging of Police jurisdiction and collection of revenue free from any demand of tribute or revenue on the part of the British Government; and it was declared that his chaharumains, feudatories, adherents and dependents would continue bound in their adherence and obligations to the Maharajah as theretofore. Again, in 1860, the British Government gave additional territory to Pattiala, and by sanad declared that His Highness the Maharajah and his heirs forever should exercise full sovereignty over his ancestral and acquired domains–Aitchison’s Treaties, ed. by Talbot, vol. vi, pp. 65-69.
15. Nor is it inconsistent with a cession of sovereignty that it should be accompanied by conditions for the benefit of the inhabitants of the ceded territory. Gibraltar and Minorca were ceded to the English in 1713 on condition that the Spanish inhabitants should enjoy their estates and religion –Smollett, vol. ii, p. 97. Upper Assam was in 1833 ceded to Rajah Poorunder Singh subject to the payment of an annual tribute, the Maharajah binding himself in the administration of justice to abstain from torture and barbarous punishments which had been practised by former Rajahs of Assam.
16. The sixth paragraph of the despatch of the 2nd March 1862, above quoted, must be read with the other despatches we have cited, and indeed is explained by the seventh paragraph. The cession to the Nawab was to be accompanied by the stipulation that he was to respect existing rights and tenures. This condition would not, as we have shown, be inconsistent with the cession of territory in sovereignty, and the despatch of the 7th November 1864 states distinctly that the territory granted had been made over to the Nawab in full sovereignty.
17. The sanad, as we have said, declares that the territory granted “is annexed to the old territory of the Nawab to be held on the same conditions as those on which he holds that territory.” Unless it can be shown that the old territory is held on conditions incompatible with sovereignty, it does not admit of dispute that the territory made over to the Nawab in 1860 was ceded in sovereignty.
18. In the course of his address Mr. Evans conceded that a cession of territory, with rights of sovereignty, could not be made to a mere subject, and therefore the learned Counsel for the defendant raised the question as to the status of the Nawab. The Nawab holding in 1860 no other territory than Rampur, the question as to his status is involved in the conclusion at which we may arrive as to the conditions on which the old territory was held. In determining it, we must not be taken to assent to the learned Counsel’s position without some qualification. In Coke’s Inst. Bk. iv, c. 71, it is mentioned that Henry VI crowned the Earl of Warwick King of Wight; but it is added “we could never find any Letters Patent for this creation because as some do hold the King could not by law create him a King within his own Kingdom, because there cannot be two Kings of the same place in one Kingdom.” Counties Palatine were, however, created within the realm of England and bestowed on subjects, and in its foreign dependencies the Crown of England has granted to subjects what have been termed proprietary governments “in the nature of feudatory principalities with all the inferior regalities and subordinate powers of legislation “–Broom and Hadley’s Commentaries, vol. i, p. 124. Pennsylvania, Delaware, Maryland and Barbadoes are cited as instances, and to these may be added Bombay, granted by Charles II in 1669 and St. Helena, granted by the same King in 1674 to the East India Company. The Governments established by Charter, of which we have had examples in British India, are also instances of the grant by the Sovereign of subordinate sovereignty to private persons, and the history of this country under native rule would, we apprehend, furnish precedents establishing the right of the Paramount Power to elevate subjects to the rank of Feudatories and to assign to them territories. We are, however, relieved of the necessity of determining this point by the conclusion at which we have arrived as to the status of the Nawab.
19. The case of The Charkich L.R. 4 A. and E. 59 was cited by Mr. Evans as authorizing a Court to consult histories, firmans, treaties, and even replies from the Foreign Office for the elucidation of such questions. The Evidence Act, Section 57, requires Courts in this country to take judicial notice of, inter alia, the existence…of every State or Sovereign recognised by the British Crown, and declares that in such cases and in all matters of public history the Court may resort for its aid to appropriate books or documents of reference. From such sources and mainly from the collection of treaties originally published by Mr. Aitchison, the Secretary to the Government of India in the Foreign Department, we have ascertained the following particulars respecting the State of Rampur and its ruler.
20. His Highness the Nawab of Rampur claims descent from a Rohilla Chief, Ali Mahomed, who, having rendered service to the Emperor of Delhi in the suppression of the Bara Syuds, received the title of Nawab and a grant of a large territory in Rohilkhand. Owing to intrigues on the part of the Nawab of Oudh, Ali Mahomed was for a time deprived of his territory by Mahomed Shah. But taking advantage of the weakness of the Delhi ruler, Ali Mahomed regained the territory that had been assigned to him, and was confirmed in his possession by the son and successor of Mahomed Shah. In the absence of his elder son detained as a hostage at Delhi, and during the minority of his younger son, Ali Mahomed intrusted his territories to Hafiz Rahmat Khan and Dudi Khan; and on the 13th June 1772, Hafiz Rahmat Khan and the other Rohilla Chiefs by treaty entered into an offensive and defensive alliance with the Nawab Wazir Shujah-ul-Dowla. On the division of Ali Mahomed’s territory among his sons, the Jaghir of Rampur fell to Faizullah Khan. The Nawab Wazir shortly afterwards declared war with the Rohillas, and with the assistance of troops of the East India Company, furnished by Warren Hastings the Sirdars were defeated and forced to sue for peace.
21. By a treaty to which Colonel Champion, the Commander of the Company’s forces, was a party, the Nawab Wazir agreed to give Faizullah Khan the country of Rampur, and some other districts dependent thereupon, producing an annual revenue of Rs. 14,75,000 : while Faizullah undertook to continue in submission and obedience to the Nawab Wazir, to retain in service no more than 5,000 troops, to furnish 3,000 troops to the Nawab if and when required, to enter into no relations with any other power save the Nawab, nor to hold correspondence with any save the Nawab, the English Chiefs excepted. By an agreement dated September 19th, 1781, which recited that by his breach of treaty Faizullah Khan had forfeited the protection of the British Government, and caused by his continuance in his present independent state great alarm and detriment to the Nawab, the Governor-General permitted the Nawab to resume his lands and pay him in money the amount stipulated by the treaty, after deducting the charges he stood engaged by the treaty to furnish. This resumption was not, however, effected. In 1783 Major William Palmer, acting on behalf of the Nawab and “the gentlemen,” in consideration of the payment of fifteen lakhs of rupees, released the Nawab Faizullah Khan from the obligation to supply the force of 3,000 men stipulated by the treaty, and in other respects affirmed the treaty. On the death of Faizullah, Gholam Mahomed Khan murdered his elder brother Mahomed Ali Khan and usurped the Jaghir. The Nawab intervened, and being assisted by the British compelled the Eohillas, who had taken up arms to support Gholam Mahomed, to accept terms. What remained of the treasure of the Nawab Faizullah was given over in deposit to the Company. The Nawab Wazir Ausuf-ul-Dowla in December 1794, by sanad granted to Ahmad Ali Khan, the minor son of Mahomed Ali Khan, mahals in jaghir, including the town of Eampur, producing a revenue of Rs. 10,00,000, and received from him that treasure deposited with the Company, amounting to Rs. 3,22,000 gold mohurs, as a nazarana for the jaghir and in lieu of all rights of confiscation of the property of the Nawab Faizullah Khan and Mahomed Ali Khan. The East India Company was a party to, and guaranteed the performance of these engagements. In 1801 the Nawab Wazir ceded to the East India Company several provinces and among others the territory since known as Eohilkhand. No mention of Rampur is made in this treaty; whereas the paramount sovereignty over Farukhabad and its dependencies, which paid an annual tribute of Rs. 4,50,001, is ceded in the following terms: “Farukhabad and others, Rs. 4,50,001.”
22. It may be noticed that by another treaty made in 1802 the Nawab of Farukhabad ceded the province of Farukhabad and its dependencies to the East India Company in full sovereignty. Rampur, it must be remembered, paid no annual tribute, and possibly on this account was not mentioned in the treaty of 1801. By Regulation XI of 1804, Section 22, certain specified articles exempted from export duty when exported to the territory of the Nawab Wazir were also exempted from the same duty when exported from the Ceded Provinces to “the territory composing the Jaghir of Rampur;” and in Regulation IX of 1810 the same provision was re-enacted, and it was declared that all goods and articles of trade imported into the Province of Rohilkhand from Rampur Jaghir, being of the description of goods and articles of trade which were liable to the payment of Government customs under that Regulation, should be subject to the payment of the same import duties to which the same goods and articles of trade were subject on importation from the dominions of the Nawab Wazir. These provisions were cited by Mr. Evans to show that the territory of the Jaghir of Rampur was regarded as foreign territory and on the same footing in respect of trade as the dominions of the Nawab Wazir.
23. In 1839 the Nawab Ahmed Ali Khan died. The claims of his daughter were set aside, and his cousin Mahomed Syed Khan having been admitted to the succession executed an agreement in the form not unusually employed by feudatories, dated 21st August 1840. It commences as follows: “Agreeably to the orders of the Governor-General the Government of Rampur having devolved on me, I therefore declare that all matters connected with my rule shall be conducted with a view to maintain justice, etc., etc.”
24. From this document it appears that the Nawab recognised the British Government as having acquired the paramount rights of the Nawab Wash over the Jaghir of Rampur.
25. In 1855 Nawab Mahomed Syed Khan was succeeded by his son Nawab Mahomed Yusuf Ali Khan, who, acknowledging that his succession had been sanctioned by the British Government, also executed an agreement declaring he would administer the affairs of the Jaghir with justice and equity and would govern the Pathans with consideration.
26. In 1862 the Nawab received from the Government a sanad in the following terms, which are identical with the terms of a similar instrument given on the same occasion to the Nizam and other Feudatory Princes:
Her Majesty being desirous that the governments of the several Princes and Chiefs of India who now govern their own territories should be perpetuated, and that the representation and dignity of their houses should be continued, I hereby, in fulfilment of this desire, convey to you the assurance that, on failure of natural heirs, any succession to the government of your State which may be legitimate according to Mahomedan law will be upheld. Be assured that nothing shall disturb the engagement thus made to you so long as your house is loyal to the Crown and faithful to the conditions of the treaties, grants, or engagements which record its obligations to the British Government.
27. In 1864 certain lands lying within the territory of Rampur, and it is stated at the bar also lands lying within two of the transferred villages, were required for the purpose of constructing a railroad. The Nawab, in answer to inquiries addressed to him by the Government, North-Western Provinces, replied that he would give up the lands required in full sovereignty, and that duties should not be levied on goods in transit through his territories, but only on goods imported and exposed for sale in his markets.
28. In 1865 His Highness Nawab Mahomed Kulb Ali Khan Bahadur, on succeeding to the Jaghir, executed an agreement in nearly the same words and to the same effect as the agreement executed by his predecessor in 1855.
29. Mr. Aitchison estimates the area of Rampur at 1,140 square miles with a population of 507,103 souls. No tribute is paid to the British Government. The Nawab maintains a force of 315 artillery with 28 guns, 505 cavalry, and 977 infantry. He has also a Police force of 1,023 men, and regularly constituted Courts for the administration of justice.
30. The facts to which we have adverted show that the ancestors of the Nawab of Rampur were admitted to treaty engagements with the Nawab Wazir, when that Prince was in all but name independent; that they and His Highness the present Nawab have been recognised by the British Government as in possession of such powers of sovereignty as are enjoyed by the Feudatories of the Empire, and that the State of Rampur has been held by them subject indeed to the extraordinary control of the Paramount Power but otherwise independent.
31. The learned Counsel for the plaintiff’ contended that such sovereignty was inconsistent with the name “jaghir,” which we have seen was applied to the territory before the cession of Rohilkhand, and has since been retained. The etymology of the term is not inconsistent with the sovereignty enjoyed by a Feudatory, though it may be admitted that the term is applied more frequently to tenures which do not partake of sovereignty: but as was declared in Calvin’s Case, saepenumero ubi proprietas verborum attenditur, sensus veritatis amittitur. The circumstances of India in the 18th century were such that the names of forms of government or (sic) would afford little indication of their actual sovereignty or attributes. “The conquered rajahs or the appointed subadars, though still professing themselves dependent, had ceased to pay any real obedience or submission to the Mughal. In this distinction between nominal and substantial authority, the state of India might be not inaptly compared to the state at the same period of Germany. According to the ancient forms, the Princes, who had long since become independent of the German Emperor, nay who were sometimes hostile to him, still continued in name the humblest of vassals.”–Lord Mahon, History of England, vol. iv, 427. It would be more than ordinarily dangerous to accept the denomination acquired by a State or a ruler at such a period as affording any certain test of status.
32. The learned Counsel who represented the Government went on to argue that, it the Court arrived at the conclusion there had been an actual cession and occupation of territory by a foreign Sovereign, the Court need go no further. We understood him to contend that a de facto occupation of territory by a foreign Sovereign of itself ousted the jurisdiction of the territorial Courts, and much more so if the occupation had been acquired peaceably and with the acquiescence of the territorial authorities. In support of his argument the learned Counsel relied on the rule that persons born during the hostile occupation of territory by a foreign prince are subjects of the foreign prince. It is, however, a condition of this rule that the persons so born should be born of parents who are in obedience, and not hostile to, the foreign power–Craw v. Ramsay Vaughan, p. 281, cited in Forsyth’s Constitutional Law, p. 340. “There are three incidents to a subject born: first, that the parents be under the actual obedience of the King; second, that the place of his birth be within the King’s dominion; and third, the time of his birth”–Calvin’s Case, cited in Wheaton, Int. Law, Lawrence’s 2nd annotated ed., p. 895. The de facto occupation of territory is sufficient for the purpose of constituting allegiance by birth if the parents are in obedience to the power in occupation; but if the parents are not so subject, but hostile, we apprehend the allegiance would be due to the de jura prince of the territory. It, however, appears to us that no conclusion can be drawn as to the question before us from the peculiar rules which determine allegiance. The jurisdiction of Courts is not ousted by the inability or the unwillingness of the Executive to assist in the execution of process. The French Courts did not lose their jurisdiction in the territories occupied by the German Army during the late Franco-Prussian War by the mere fact of foreign occupation. Nor would such jurisdiction necessarily be lost if for a season a foreign power was allowed peaceably to occupy territory. At the same time in this as in other matters, the Courts of Justice would he guided by principles recognised in Municipal Law. They would, we apprehend, infer from a long occupation of territory peaceably enjoyed by a foreign power that there had been a valid cession or such acquiescence as would amount to a valid cession. They could not, however, draw such inferences from an occupation of a few years, although it had been acquired without the exercise of hostile force and peaceably enjoyed.
33. We must then proceed to determine whether the transfer was made by authority competent to make a cession. It is contended by the learned Counsel for the plaintiff that a valid cession of British territory cannot be made without the sanction of Parliament. On this point it was admitted at the bar that little could be added to the exhaustive arguments of Sir Vernon Harcourt, Sir Fitzjames Stephen, and Mr. Forsyth before the Privy Council at the hearing of Damodhar Gordhan v. Deoram Kanji I.L.R 1 Bom., 367, known as the Bhaunagar Case, and to the observations of the eminent Judges, who, although they did not eventually decide the point, intimated with some distinctness their opinions on the arguments advanced.
34. It is held by jurists that the authority competent to bind the nation by treaty may alienate the public domain and property by treaty–Kent’s Commentaries, 10th ed., vol. i, Sections 165, 166; Wheaton, Int. Law, Lawrence’s 2nd annotated ed,. pp. 457, 873; and although the opinions of Grotius and Puffendorf differ from the opinion of Vattel on the point, the Lord Chancellor appears to prefer the opinion of the latter writer, that there is no presumption against the power of the Sovereign to alienate without the consent of his subjects. It is declared by writers on Constitutional Law and is established by precedent that the Sovereign of Great Britain is the authority to which is committed the power to make treaties. II appeal tantum a roy faedus percutere et hellum indicere–Calvin’s Case. “To make leagues and alliances belongs to the King only”–Comyn’s Digest, Prerogative, Bk. iii; Stephen’s Blackstone, vol. ii, p. 503. At a very early period in Parliamentary history, Sovereigns of England consulted the Parliament in reference to questions of peace and war, and in two instances treaties made by the Sovereign were confirmed by Parliament. A league of mutual assistance made by Henry V with the Emperor Sigismund on the 11th August 1416, was confirmed by Parliament on October 14th, 1416.–Coke’s Instil. Bk. iv, c. 26. The treaty of Troyes whereby England and France were to be united under one King received the sanction of Parliament on the 21st May 1420–Hallam’s Middle Ages, vol. iii, p. 97. The submission of the latter of these treaties to Parliament (and it will be observed that neither was submitted until after it had been concluded by the Crown) may be explained by the circumstances that it dealt with the Crown and territory of England; but it is more probable it was due, as was perhaps also the submission of the former treaty, to the King’s consciousness of the weakness of his title to the Crown and to his frequent need of the subsidies over which the Parliament had then established its control. Coke’s Instit. Bk. iv, c. 26, states it to have been one of the charges brought by the Commons against the Duke of Suffolk that he had procured the King to have conference with the French Ambassador in his presence only, without any other of the Council. This was in 1450: again in 1529 of the articles exhibited against Cardinal Wolsey, the 2nd and 3rd charged him with infringing the prerogative of the King in negotiating treaties; but on neither of these occasions was complaint made of any invasion of the functions of Parliament. In 1698-1700 William III negociated and ratified the “Partition” treaties without communicating them to the Privy Council. It is true Lord Homers was impeached for carrying out the King’s instructions with regard to these treaties, but the impeachment fell through and the treaties were not disaffirmed. With the exception of the Treaty of Versailles in 1783, no precedents have been produced to show that in modern times the Crown has sought or received the intervention of Parliament in regard to treaties except in those cases in which it has required the action of Parliament to give effect to the treaty. The Treaty of Versailles as was pointed out in the Privy Council stands on a peculiar footing. Its object was to conclude a peace with the American colonies, whose people had been declared by Parliament rebels with whom no intercourse was to be maintained, and therefore it was necessary that authority to treat should be given by Parliament.
35. It is argued that the Crown cannot of itself cede territory because it cannot release the inhabitants of the territory from their allegiance. But allegiance is correlative with protection: mutua debet esse domini et subditi connexio, itu quod quantum debet domino ex homagio tantum debet dominus ex dominio…est reciprocum ligamen, quia sicut subditus tenetur obedire, ita rex regere et protegere– Glanville, cited in Calvin’s Case. When then the Crown withdraws its rule from territory, and consequently no longer affords protection to the inhabitants of the territory, they are free either to continue their allegiance to their former Sovereign or to transfer it to the Sovereign who succeeds to the territory. Nor is it necessary that allegiance should be transferred by express submission, its transfer may be accomplished by tacit submission; and tacit submission may be inferred from remaining in the territory under the dominion of the succeeding Sovereign and fulfilling the obligations of subjects–Forsyth’s Constitutional Law, p. 335.
36. It was shown by the instances cited in the Privy Council that the Crown has without the intervention of Parliament ceded territory. Thus by the Treaty of Breda, in 1667, Nova Scotia, then known as Acadia, was restored to France, and Surinam to Holland. By the Treaty of Ryswick, in 1697, a part of the Hudson’s Bay territory was ceded to France. It was also shown by the instance of the cession of Florida in 1793 that a cession is not necessarily restricted to territory which has been the subject of conquest or reconquest during the particular war at the end of which it is made.
37. That the authority to cede enjoyed by the Sovereign is not confined to cessions made to put an end to, or at the close of, war is shown by the instances of the cession of Guadaloupe to Sweden in 1813, and of Sumatra and Bencoolen to the Netherlands in 1824; and we may here observe that Wheaton, in discussing the possession of the rights of cession by the treaty-making authority, admits it to extend to cessions when deemed necessary not for the national safety only but for “policy”–Wheaton, Int. Law, Lawrence’s 2nd annotated ed., p. 873.
38. It is further shown by the instances of Bencoolen and Florida above-mentioned and of portions of Canada ceded in 1783 that, even after Parliament has legislated for a territory, it is competent to the Crown to cede it. As was observed by the Lord Chancellor, the circumstance that territory has been the subject of legislation by Parliament does not take away from the Crown its prerogative of cession. To the instances adduced on this point there may also be added the cession of Nawabganj to the Nawab of Oudh in 1816, inasmuch as that pargana had theretofore formed part of the district of Gorakhpur, and, as such, had been the subject of numerous Regulations enacted under the authority of Parliament.
39. We are not concerned to inquire whether the Crown can without the authority of Parliament cede any portion of the realm of great Britain and Ireland. The authorities and precedents cited to the Privy Council, and the observations which fell from the eminent and learned members of the Committee in the course of the argument, appear to establish conclusively the prerogative of the Crown to cede territory which does not form part of the realm of Great Britain and Ireland; but it is also to be inferred that, where the inhabitants of a territory have been admitted to a share in the government through the instrumentality of representative institutions, the Crown lies under a moral obligation to consult them through their representatives before it proceeds to make a cession of their territory.
40. Whatever be the extent of the prerogative of cession enjoyed by the Crown in other of its dominions, it is certainly not more restricted in this country.
41. It is an axiom of English law that, when dominion is acquired by Great Britain in an infidel country already subject to law, the laws of England do not extend to that country : but the laws of the country are to be observed so far as they are not repugnant to the law of God until they are abrogated, and that, where such laws are rejected or silent recourse is to be had to natural equity–Calvin’s Case; Blankard v. Galdy Salk. 411; Smith v. Brown Salk. 666–precedents the more noteworthy in that they appear to have influenced legislation for India. The Crown of England having acquired by conquest or cession all the sovereignty or the paramount power in this country obtained, with that sovereignty, the prerogative of cession, which from the nature of its authority had theretofore been exercised by the paramount power without control. The prerogative so acquired has not been curtailed by any legislation.
42. Furthermore, even before the complete acquisition of paramount sovereignty in India, the Crown had exercised the prerogative of cession by delegation without any intervention or objection on the part of Parliament. By Letters Patent granted in the 13th year of Charles II, April 3rd, 1661, the Company thereby incorporated was authorised for the security and protection of their factories and other places of trade in the East Indies to send ships of war, men and ammunition, and to appoint commanders over them, and to give commanders authority to continue or make peace or war with any prince or people, that were not Christians, in any place of their trade, to exact reprisals, and to erect castles and fortifications. By Letters Patent issued in the 20th year of Charles II, March 27th, 1669, the Port and Island of Bombay were granted to the Company to be held in free socage as of the Manor of East Greenwich on payment of an annual rent of £10, in the same manner as Maryland had in 1632 been granted by Charles I to Lord Baltimore, to be held in socage as of the Manor of Windsor, he yielding yearly two Indian arrows. In this Charter it was thought necessary to introduce a distinct declaration that the Company should not aliene the territory thereby granted to any Prince, Potentate or State or person except such as should be the subjects and of the allegiance of the King. By the same Letters Patent power was given to the Company and to Governors to be appointed by them to retain by force of arms possession of the territory thereby granted, and also of any territory they might thereafter acquire in the East Indies.
43. By Letters Patent granted in the 10th year of William III, September 5th, 1698, the United Company thereby incorporated was empowered to appoint Governors who, under their direction, might raise and muster troops for the defence of their forts, factories, and plantations; and by Letters Patent granted in the 26th year of George II, January 8th, 1753, the Company was empowered to appoint Generals of all the forces belonging to Fort St. George, Bombay, and Fort William respectively, and such Generals were authorised not only to protect by force of arms their respective territories but upon just cause to invade and destroy the enemies of the same.
44. But in relation to the question before us by far the most important of the several Charters granted to the Company is the Charter granted by George II in the 31st year of his reign, dated January 14th, 1758. The Letters Patent, after reciting that the Company had been compelled to carry on war against the French and likewise against the Nawab of Bengal and other Princes and Governments in India, and that some of their territories and possessions had been taken by the Nawab and afterwards re-taken, empower tire Company by any treaty or treaties of peace made or to be made between them and any of the Indian Princes or Governments to “cede, restore, or dispose of any fortresses, districts or territories acquired by conquest from any of the said Indian Princes or Governments,” or which should be acquired by conquest in time to come.
45. It was at the same time provided that the Company should not have any power or authority to cede, restore, or dispose of any settlements, fortresses, districts or territories conquered from the subjects of any European power without the special license and approbation of the Crown.
46. By the Act 13 Geo. 3, c. 63, known as “the Regulating Act,” there was committed to the Governor-General and Council of the Presidency of Fort William superintendence and control over the Presidencies of Bombay, Madras and Bencoolen, and in Section 9 it was declared unlawful for the President and Council of the last mentioned Presidencies (except in the cases therein excepted) to make any orders for commencing hostilities or declaring or making war against any Indian Princes or powers or for negotiating or concluding any treaty of peace or other treaty with any such Indian Princes or Powers without the concord and approbation of the Goyernor-General and Council, and by the same Act the Governor-General and Council were directed to pay due obedience to all orders they might receive from the Board of Directors.
47. The Act 24 Geo. 3, c. 25, established a Board of Commissioners for the better government of the territorial possessions of the Kingdom in the East Indies. For this purpose the Board was invested with the superintendence and control over the territories and over the affairs of the Company, and with power to direct all acts, operations and concerns which in any wise related to the civil and military government of the territories. It was also enacted that the Commissioners should be furnished with copies of all despatches received by the Directors of the Company and of all despatches proposed to be sent by the Directors to any of their officers in the East Indies, and that their orders relative thereto should be obeyed by the Directors. The 15th section of the Act empowered the Commissioners, if they considered the subject-matter of their deliberations “concerning the levying of war or making of peace or negotiating with any of the Native Princes or States in India” required secrecy, to send secret orders and instructions to the Secret Committee of the Court of Directors, who were thereupon required to transmit them to the respective Governments and Presidencies, and such Governments and Presidencies were required to obey the orders so conveyed to them.
48. By the 34th section of the same Act the Governor-General and Council of Fort William were prohibited (except in the cases thereby excepted) without the express command of the Secret Committee of the Court of Directors either to declare war or commence hostilities or enter into any treaty for making war against any of the countries, Princes or States in India, or any treaty; for guaranteeing the possessions of any countries, Princes or States * * * and in all cases where hostilities should be commenced or treaties made, the Governor-General and Council were ordered to communicate the same to the Court of Directors by the most expeditious means they could devise.
49. These provisions were repealed and again enacted by the Act 33 Geo. 3, c. 52, and with some alterations by the Act 3 and 4 Wm. 4, c. 85. From 1734 then up to 1858 the power of cession granted by the Charter of George II was exercised by the Company subject to the control of the Board of Commissioners. But before and during that period it was construed as extending not only to territories acquired directly by conquest, but also to territories ceded doubtless in many cases as a consequence of conquest: nor were these cessions made only for the purpose of concluding war or rectifying frontiers, but for the promotion of the policy of the Government.
50. In 1765 the Nawah Wazir was restored to his dominions with the exception of the district of Corah and Allahabad; and among others he received Ghazipur and Benares, of which the Company had obtained a grant from the Emperor.
51. The districts of Allahabad and Corah were given to the Emperor for the maintenance of his dignity, but on his granting a sanad for Currah and Corah to the Maharattas they were resumed by the Company in 1773 and ceded to the Nawah Wazir. In 1816 the Company in the name of the British Government, in order to extinguish a debt due by the Government to the Nawab Wazir, ceded to the Nawah the district of Khyraghur and the territory then lately conquered from the Ghurkas, and exchanged pargana Nawabganj, part of the district of Gorakhpur, for pargana Handia.
52. In 1782 the city and pargana of Broach was ceded by the Company to Scindiah, in testimony of the sense entertained of the generous conduct manifested by the Maharajah to the Government of Bombay at Wargaon, and of his humane treatment and release of the British gentlemen who had been delivered to him as hostages on that occasion.
53. In 1805, at a time of peace, the Company ceded to Scindiah the territories of Gwalior and Gohud, which had been ceded to them by Rajah Umbaji, who had held them as Governor for Scindiah but had revolted.
54. In 1806 the Governor-General restored by cession to Raghojee Bhooslah the territories of Sumhulpur and Patna which had been ceded to the Company in 1803.
55. In 1817 a part of the territory captured from the Rajah of Nipal and ceded to the Company by a treaty of peace was ceded in full sovereignty to the Sikimputti Rajah. In 1833 a portion of Assam was ceded to Rajah Poorunder Singh.
56. It is unnecessary to refer to the other instances cited in argument in the Privy Council. They are all consistent with the opinion we have expressed as to the exercise of the power of cession by the Company; and inasmuch as the Company acted only in virtue of the authority committed to it by the Crown, they establish the exercise by the Crown of the prerogative of cession in this part of its dominions without any limitation, and without any intervention on the part of Parliament. But it is also important to remember that, notwithstanding the Crown permitted the Company to exercise its prerogative of cession in the East Indies, it had not divested itself wholly of the prerogative in respect of its Indian dominions. Chandernagore was captured from the French in 1793, and Chinsurah from the Netherlands in 1795. They were administered by the Company and Regulations passed for the establishments of Courts of Justice–Regulations I and XVI of 1805; II of 1808; and IX of 1809. Chinsurah was restored to the Netherlands in pursuance of the treaty made in London on the 13th August 1814, and Chandernagore was restored to the French in accordance with the stipulations of the treaty made in Paris on the 30th May 1814. In pursuance of the treaty signed at Kiel on January 14th, 1814, the town of Serampore and its settlements were restored to the King of Denmark.
57. In 1824 Bencoolen and the English possessions were ceded to the Netherlands in exchange for establishments on the continent of India and the town and fort of Malacca and its dependencies. This cession is the more noteworthy in that it was immediately brought to the notice of Parliament that the prerogative of cession had been exercised by the Crown. The treaty was concluded on the 17th March 1824: and on the 24th June 1824, an Act, 5 Geo. 4, c. 108, was passed transferring to the Company the island of Singapore and all the colonies and possessions ceded to His Majesty by the treaty, to be held on the same conditions and subject to the same restrictions as the factory of Bencoolen and the possessions in the island of Sumatra had been held by the Company immediately before the conclusion of the treaty.
58. The exercise of the prerogative by the Crown concurrently with the Company is established by these instances.
59. By Act 16 and 17 Vic, c. 95, the territories administered by the Company were continued under their government in trust for the Crown, and they so remained until 1858 when it was deemed expedient they should be governed by and in the name of Her Majesty. Consequently by Act 21 and 22 Vict., c. 106, it was enacted that the government of the territories then in the possession or under the government of the Company, and all powers in relation to government vested in or exercised by the Company, and all territories in the possession or under the government of the Company, and all rights vested in or which, if the Act had not been passed, might have been exercised by the Company in relation to any territories, should become vested in Her Majesty. The rule of the Company thus came to an end; and the privilege to exercise the prerogative of cession, which the Crown had conceded for the government and protection of the territories administered by the Company, expired when the occasion for it could no more arise.
60. We find then that the Crown is competent to cede territory in its Indian dominions without the intervention of Parliament. The prerogative of the Crown is exercised with the advice and through the agency of the responsible ministers of the Crown. In the case before us it is shown that the cession of territory to His Highness the Nawab of Rampur was effected by the Government of India, that it was accepted by the Secretary of State as fulfiling instructions conveyed to the Government of India, and that it was approved by Her Majesty’s Government. We have then sufficient evidence of a cession by the Crown: and when it is proved that a cession has been so made, it is not for this Court to inquire whether in the particular instance the exercise of the prerogative was called for.
61. We, therefore, find that the nineteen villages which fall within the territory transferred to His Highness the Nawab of Rampur had passed by valid cession out of British territory before the institution of this suit, and that the Court in which the suit was instituted had no jurisdiction to order a sale of those villages.
62. A decree will pass for the sum found due and for the sale of the remaining villages in satisfaction of the debt and interest due up to the date of realisation if the debt, interest, and such costs as are decreed, be not paid into Court within two months after the date of the decree. The claim to bring to sale the nineteen villages in Rampur is dismissed. The plaintiff accepted the security which he now seeks to enforce many years after the territory had been ceded, and could not therefore claim “benevolence” from the British Government. He must, should his security in British territory prove insufficient, pursue his remedy in the Courts of Rampur, and we doubt not he will receive justice. But inasmuch as the defendant was willing to admit the debt (save in respect of a minor item of interest), and the costs, with the exception of the stamp-fee, have been incurred chiefly by reason of the plaintiff’s contention regarding the jurisdiction of the Bareilly Court, we order that the plaintiff recover the stamp-fee from the defendant, to be realised in the same manner as the debt and interest: and that, in respect of costs other than the institution-fee, each party shall bear his own costs.
