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Smart Summary

Factual and Procedural Background

This opinion concerns a suit brought in the Supreme Court of Madras by the Respondent, the eldest widow of Sevajee, the late Rajah of Tanjore, who died without male issue in 1855. The Respondent claimed entitlement to inherit and possess the private and particular estate and effects of Sevajee, distinct from the property belonging to the Raj of Tanjore. After Sevajee's death, the East India Company, acting under authority from the British Government, took possession of the Raj and its property, asserting that the dignity of the Rajah had become extinct and that the Raj lapsed to the British Government. The East India Company appointed Mr. Forbes as Commissioner to investigate and manage the property and affairs related to the extinction of the Raj.

The Respondent filed a Bill alleging wrongful interference and detention by the East India Company of Sevajee’s private estate, seeking a declaration of her right as heir and legal representative, an injunction against further interference, and an account of the estate. The Supreme Court at Madras granted an injunction restraining Mr. Forbes from proceeding with sales of the estate. The East India Company answered that the Rajah was an absolute sovereign within the fort of Tanjore and certain adjacent lands, that the seizure was an act of State done in their sovereign capacity, and thus beyond the jurisdiction of municipal courts. The Court ultimately decreed in favor of the Respondent, declaring her entitled to the private estate, and held the East India Company trustees for her. The Secretary of State for India, successor to the East India Company, appealed this decree.

Legal Issues Presented

  1. Whether the East India Company, acting as the governing power in India, was amenable to the jurisdiction of the Supreme Court of Madras for acts done in their sovereign capacity.
  2. Whether the acts complained of—taking possession of the Raj of Tanjore and its property—were acts of State and government, immune from municipal court inquiry.
  3. Whether there was a valid distinction between the public (State) and private property of the late Rajah, and if so, whether the Court had jurisdiction to adjudicate claims to the private property.

Arguments of the Parties

Appellant's Arguments (Secretary of State for India)

  • The East India Company had sovereign powers delegated by the Crown and exercised acts of State in taking possession of the Raj and its property.
  • The seizure and possession were acts of government and State, not subject to municipal court jurisdiction, especially the Supreme Court of Madras.
  • The Rajah of Tanjore was an absolute sovereign within his fort and adjacent lands, with no distinction between his public and private property; all property belonged to him as sovereign.
  • Municipal courts could not inquire into or question acts of State or sovereign authority.
  • The East India Company’s acts were ratified and adopted by the Government, rendering them acts of State.
  • The Court below erred in asserting jurisdiction over the seizure by distinguishing between public and private property.

Respondent's Arguments

  • The East India Company was a corporation with limited powers and was accountable to the Supreme Court of Madras for wrongful acts.
  • The Rajah was not an absolute sovereign but a titular monarch with private property distinct from State property.
  • Hindoo law recognized the existence of private property in a sovereign, which could be inherited by widows.
  • The seizure of private property was wrongful and not justified as an act of State.
  • The Respondent, as senior widow, was entitled to inherit and administer the private estate of the late Rajah.
  • The East India Company had no legal title to take possession of the private property and was liable to account for it.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
The East India Company v. Syed Ally (7 Moore's Indian Appeal Cases, 555) Acts of State done by the East India Company in sovereign capacity are not subject to municipal court jurisdiction. Confirmed that the seizure of the Raj and its property was an act of State and immune from inquiry by the Supreme Court of Madras.
The Advocate-General of Bombay v. Amerchund (1 Knapp's P.C. Cases, 329) No distinction between public and private property of an absolute sovereign; entire property belongs to the sovereign. Used to argue that the Rajah of Tanjore, as an absolute sovereign, had no private property distinct from State property.
The Lord Advocate v. Lord Dunylas (9 Cl. and Fin. 211) Prerogatives of the Crown do not distinguish between private and public property; Crown property is held for public purposes. Supported the view that the Rajah's property was public and held for State purposes, negating claims to private property.
Buron v. Demmaa (2 Exch. Rep. 167) Ratification of acts by government cures defects in authority; acts done under ratification are acts of State. Applied to hold that the acts of Mr. Forbes, ratified by the government, were acts of State.
Gibson v. The East India Company (5 Bingh. N.C. 273) East India Company had dual character: trading company and sovereign authority; liable for trading acts but sovereign acts are immune. Used to distinguish between acts done in trading capacity and sovereign acts, supporting immunity for sovereign acts.
Moodalay v. The East India Company (1 Bro. C.C. 469) Acts done by East India Company as sovereign power in India are acts of State, not subject to municipal jurisdiction. Supported the principle that sovereign acts by the Company are immune from municipal court interference.
Cameron v. Kyte (3 Knapp's P.C. Cases, 332) Governor of a Colony is exempt from jurisdiction for acts done in his official capacity. Distinguished on facts; used to discuss limits of jurisdiction over sovereign officials.
Hill v. Bigge (3 Moore’s P.C. Cases, 465) Governor liable for personal contracts unrelated to sovereign functions. Distinguished to show limits of immunity.
Ryves v. The Duke of Wellington (9 Bew. 579) Recognition that sovereigns may have private property distinct from State property. Supported the Respondent’s argument that the Rajah could have private property.
Le Chus v. Eden (Doug. 591) and Lindo v. Rodney (Ib. 313, n.) Seizure of enemy property during war is an act of State immune from municipal courts; such questions belong to Prize Courts. Used to illustrate immunity of acts of State in war, distinguished from the present case.
The Bank of Bengal v. The East India Company (Bignell’s Reports, 118) East India Company liable to jurisdiction of courts for acts not done in sovereign capacity. Supported the distinction between sovereign and non-sovereign acts.
Secretary of State for India v. K. B. Sahaba [1859] Composite case involving sovereign authority, private property, and jurisdiction of Indian courts. Central case analyzed in this opinion.

Court's Reasoning and Analysis

The Court undertook a detailed analysis of the nature and extent of the East India Company's powers, the status of the late Rajah of Tanjore, and the character of the property seized. It recognized that the East India Company exercised sovereign powers delegated by the Crown, including making treaties, raising armies, and governing territories. Acts done by the Company in this sovereign capacity, especially those involving State policy and political transactions, were deemed acts of State not subject to municipal court jurisdiction.

The Court examined the evidence and found that the late Rajah's sovereignty was nominal and limited to the fort of Tanjore and adjacent lands, with his powers circumscribed by treaties with the British Government. The Rajah was not an absolute sovereign in the full sense, but he did possess private property distinct from State property, recognized under Hindoo law. The Court noted schedules of property seized by the Company that included items clearly private in nature, such as personal effects, jewels, carriages, and horses.

Despite this, the Court held that the seizure and possession of the Raj and its property by the East India Company were acts of State done under sovereign authority, ratified by the Government of India. The Court emphasized that municipal courts, including the Supreme Court of Madras, had no jurisdiction to question or interfere with such acts of State. The distinction drawn by the Court below between public and private property was legally untenable in the context of an absolute or near-absolute sovereign power exercised by the Company.

The Court also rejected the Respondent's contention that the East India Company was merely a corporation subject to municipal jurisdiction, holding instead that while the Company had a dual character, acts done in its sovereign capacity were immune. The Court found no legal grounds for the Respondent's claim to the private property under municipal law and emphasized that any grievances arising from the seizure were political and not judicial matters.

Holding and Implications

The Court’s final decision was to REVERSE THE DECREE OF THE SUPREME COURT OF MADRAS and DISMISS THE RESPONDENT'S BILL.

The direct effect of this decision is that the East India Company, acting as a sovereign power delegated by the British Crown, lawfully took possession of the Raj of Tanjore and its property, including what the Respondent claimed as private property. The municipal courts have no jurisdiction to inquire into or interfere with acts of State done in this sovereign capacity. No new precedent was established beyond affirming the immunity of sovereign acts performed by the East India Company and their successors. The judgment underscores the principle that political acts and questions of sovereignty are beyond the scope of municipal judicial review.

    The Secretary of State for India v. Kamachee Boye Sahaba (United Kingdom)

    ~~~~~~~~~ OF Sll'dTE POR 1Pr'Dl.A li. K. 33, SdHdBA [ l 8 5 9 ] XIIl MOORE, 22

    Lordship here rea& the judgniellt, uta-te, p. 15.]---It is true there are very small

    ~ ~ t e r ~ a ~ s to arrive at the question \&ether the BilI was presented within a reason-

    able time or ilot, but the grounds of the dwisiou of the superior number of the

    Coust are, in the c~rc~mstances? sa t~s~ac tory to their or^^^^^^^^ and it is a pr i

    of t h i s Court that we nxst be satisfied that, the Court below has wholly xiziscarried,

    in order to induae us to reverse a decision of tbe Court below. We are ilot ~martb,

    from the j u d ~ i x ~ e n t ~ of any otlier c ~ r ~ ~ u ~ ~ ~ a ~ k c e s , than those set forth, ivhicli operated

    011 the mind o f the Royal Court, aud, as thaL judgment is, in our opinion, a correot

    one, our duty will be to recommend the afErinaoc;e of the judgnient appealed froiii,

    with costs.

    [Mews' Dig. tit, BILLS OF EXCE

    ~ O ~ ~ ? ~ ~ , IX. ~~~~~~~~~~ C O

    E. ~~~~~~~*~~~~~ 2. ~ ~ ~ ~ ~ e ? ~ ~ ~ ~ ~ e ) ~ ~ tot'; tit.

    13. Jlct.seg artd ~~~~~~~~, c. Laws* see

    S, 90 of R i l s of Exchange Act, and 46 Tiet., G . 611.3

    . . , .,

    P.C, IV. 9 I n

    ~ ~ a d r a s ~ nd Ameer Sing. which annulled the former Treaty, and the s t i ~ ~ u ~ a t ~ o n h

    of wbich, so far as material liere to be stated, were as follows :-'' Art. 1. The frierids

    arid eneniies of either of the co i~ t r ac t i i~~ pavt.ies shall be considered the friends and

    citelilies of Itoth. Art. 2. In order to execute the foregoing Article in its full extent.

    the East India Company agree to maintain a military force; and tt ie Rajah of

    Tanjore agrees to c ~ ) ~ ~ t r ~ ~ ~ ~ I ~ e ~ I ~ I u a l l y a certain SUIU of money ~ ~ e r e ~ ~ i a f t e r ~iieiit~oned

    as his sir~tre of the expense of the said ~ ~ ~ ~ ~ ~ ~ a r ~ force ; the said lZajalt further agree-

    ing that the disposal of the said XUIU, topether xitlz the a ~ r a n ~ e ~ ~ ~ c ~ ~ t and e~npioy-

    ment of the t roop s~tpported by it, shall be left ctitirely to the said Coltipany. Art.

    8. X i . i8 re^^^ also agreed, titat for the further sewrity and defence of the coxintriek

    beloxiging atid subject to the c o r ~ t r a ~ t ~ n ~ p i ~ t i e s ill the Carnatic, etc., that all forts

    shall be ~ a r ~ ~ s o ~ r e d by the troops of the said ~ o n ~ ~ ? a ~ i ~ . Art. 8. In case the said Rajah

    s l d at any t i m e have occasion for auy rtumber of t~oops for the c o ~ ~ e ~ t i o ~ of his

    r e ~ w ~ u e s , the support of his a ~ ~ t I ~ o r ~ ~ ~ , o r tlie good order- and ~ o v e r ~ ~ ~ ~ ~ e i ~ t of his

    country, the said Company agree to furnish a sufficient number of troops for that

    purpose, on public ~ e p r e s e ~ I t a t ~ o ~ i being made by the said Rajah to the President in

    [ ~ ~ ~ C ~ ~ I I ~ ~ ~ I of Fort St. George, of tlie necessity for e ~ i ~ p l o y i i ~ ~ such troops, atid of

    the objects to be obtained thereb>-. Art. 9. The said Rajah shall x.eceive regular

    ~ ~ i f o r ~ 3 i a t ~ o ~ ~ of all negotiations whictr shail relate to declaring war or n ~ a ~ i i ~ ~ peace,

    whereiu the said C o i r ~ p a ~ y may er^^^^, and the interests of tbe Carnat~c and its

    ~ ~ e ~ e I ~ d ~ i i c ~ e ~ may be co~ cerned ; arid the said Ztajah shall be considered as un allr

    of the said Coriipany iu all Treaties which shall i t i any respect affect the Carnatic

    and C o u ~ i ~ r ~ e s depei3d~ny thereon, or ~ ~ ~ l o i i ~ i n g to either of the c o ~ ~ t r ~ ~ c t ~ ~ i g pitrtiew

    contiguous thereto ; aud the said Rajah *agrees t Etat he will not enter into any rtego-

    tiatioris or political carrespandeuce with sny European or native power without the

    c o ~ 3 ~ e ~ t of the said ~on ipany . '~

    The third Treaty was dated tlre 25th Qctobeu, 1799, and $vas made betveeii

    Suvajee, the tlien Rajah of Tanjore, and ~ e i ~ j a ~ ~ i ~ i ~ Tovin, Esq., Resident at Tanjore,

    ~g under powers from the ~ o ~ e r ~ ~ o r - ~ e n e r a l , the material proPisions of which

    \\ere as follows :-Art. 2, After reciting that i t hiid become ~ i i d i ~ p e ~ ~ ~ a ~ l y necessary

    to e s t ~ ~ l ~ ~ i s ~ ~ a regular mid p e r ~ ~ i a ~ i e ~ i t s37stem for the better ad i i~ i i i~s t r a t io~~ of tlw

    rcveiiue of the ~ o u i ~ ~ r y of Tanjore, s t~pu~ates if that all f ~ ~ n ~ e i ~ p r o ~ r i ~ ~ o ~ ~ ~ for securing

    a partial or tentporary interfereiice 011 tlie part of the HonoitrabIe C o n ~ p a n ~ in tltr

    ~ o ~ e r ~ ~ ~ ~ ~ e i ~ t o r i l k the a d ~ i ~ i ~ ~ ~ ~ t ~ a t ~ o ~ ~ of the revenues f the country of Taxijore

    sliall be entirely a i ~ ~ i u l ~ e d ; and that, i u lieu thereof, ~i ~ e r ~ a ~ i e ~ ~ t systsui for the

    ~ ~ ~ ~ ~ l ~ ~ c ~ i ~ ~ i of the reuenue, and for flie adz~iinistratioi3 of justice, s1ia11 be e s t a ~ ) ~ i s ~ ~ ~ ~

    iri tlru ~ i i ~ ~ ~ i ~ ~ e r l i e r ~ ~ f t e deserilted," Art 3. The ~ o r ~ o ~ ~ r a ~ l e ~ o ~ ~ ~ p a i ~ y shaIl be at

    liberty, as soon 11s possible, to a s c e r ~ ~ ~ ~ ~ , deterniint., aad estnbtish rights of ~ ~ r o p e r t y ~

    third [25] to fi Y a I easonable a s ~ e s s ~ ~ ~ n ~ upon the several Soubahs, ~ e r ~ u ~ i ~ ~ a ~ ~ s , and

    .iiIlayes of the country of Tanjore, iind to secure a fixed arid permartexit revenue.

    Art. 4. B Court, or Courts, shall be e s t a ~ ~ ~ s h e d for the due a d ~ j i ~ i s t r a t ~ o ~ t of civ i l

    and criminal. justice, under the sole a ~ i ~ l ~ o r i t ~ f the English East India Conrpa

    The mzid Courts shalI be composed of officers to be appointed by the Governor

    Couiicil of Fort St. George for the time being, iind shall in no instance ~ ~ ~ ~ ~ a t e ~ r e r he

    s ~ ~ ~ ) j c c t e ~ to the control, a u t ~ I o ~ , ~ t y , or ~ ~ ~ ~ e r € e r e n c e of th said Rajah ; but shall bc

    c ~ ) n d ~ ~ c t e d a c c o r d i ~ 3 ~ to such ~ r d ~ ~ ~ a ~ ~ u e s and e g ~ I l a ~ ~ o ~ ~ ~ ( f r a ~ ~ e d wi th due regard

    to the existing lan*s and usages of the country) as shall. from t h e to time, be enacted

    and ~ u ~ ~ ~ ~ s ~ ~ e d fy the said Gov rnor in Council. A r t , 9. I t is s t i ~ u ~ a t e d ~xud itgreed

    that the Rajah shall be treated OD all occasions in his own territctriefi as well as in

    tltose of the ~on3par~y. with all the attention, respect, and honour which is due to a

    friend and ally of the British nation. Art. fO. ereas as his E~ce~lency, the Rajah,

    has had occasion to complain of ~ n ~ o n v e ~ ~ ~ ~ ~ c e to his Excellency and h i s servant#,

    froin the present mode of garrisoning his ~ ~ c e l l e ~ c y ' s hereditary fort of Tanjore

    by a part of the ~ ~ ~ ~ o ~ r a b ~ e C o ~ ~ ~ ~ a ~ ~ y ' s t oops, it i s t ~ ~ u l a t e d and aqreed, ~ i t f i it ~ i e s

    to the accoi~~~~iodatiori and satis~action of his Exceilen~3r, that the said fort of Taiijore

    sltall be evacuated by tfie ~ o n i p ~ ~ ~ y ' s t r o o p entirely, and that his ~ ~ c e ~ ~ e ~ ~ c y shiill be

    at full liberty to p r r i son the said fort it1 such manner as to him shall seen1 Er.

    Art. 12. In colaplaints brought before any of the Court@ of jus t ice in which it s h ~ l $

    appear, either by the application of the Rajah or the re~)resentat~on of the f ~ e f e ~ ~ d a i ~ ~ .

    at or before the time of giving ii? his [26] o r her answer, or by the petition of tltc

    i 0

    ~ ~ C R E ~ A ~ ~ OF STATE FOB INDIA 'U. I < . B, SABABA C l S S V ] XIII ~ O O ~ ~ , 27

    C o ~ p 1 a i ~ ~ a n t , that both parties are relations, or servants, o r d e p e ~ ~ d a ~ i t s of his

    ~xce~lcncy, or ~ n h a b ~ t a n t s usually resident within the fort of Tanjore, i t is s t ~ p u ~ a t e d

    and agreed that such parties shall, in the first instance, be referred for justice t o

    the Rajah, or to any person he may appoint to dispense it. Any c o ~ ~ p ~ a ~ n t agai fit

    the Rajah's relations, immediate servants, or others. residing in the fort of Tanjore,

    by persons of a different description, shall, in the first instance, be umdo to tIie

    Company's representat~ve a t Yanjare, who shalt prefer it to his Ercellexkcy. B?

    other articles of this Treaty, provision was made for the collection of the revenue

    by the Governor in Council, and for the payment of one-fifth part of the same to the

    Rajah.

    Subject to the obligations to the British Government imposed by these Treaties.

    the migniug Rajah of Tanjore reruriined Sovereign of the country, and within t f i c

    fort of Tanjore his power continued absolute, extending to the power of life and

    denth.

    On the 29th of October, 1855, Sevajee died at the fort of Tanjore, ~ ~ ; i t ~ ~ o u t leaving

    male issue, or son by adoption, or any brotiler him surviving. U p o ~ the fact of his

    death beiiig c o ~ ~ u ~ i ~ c a t e d to the Court or' Directors of the East India Colnpany,

    they by a d e s ~ a t c ~ ~ to the G o ~ e r n ~ ~ ~ e n t of I dia, dated the 16th of April, 1856, in

    ~ o i ~ c u r i ' ~ i ~ c e with the opinion of sueh Goverii~~~eiit, and of the ~ o y e r ~ m e n t of Madras.

    declared the dignity of Bajah of Tanjora to be extinct; and declared the Raj of

    'I'anjore lapsed to the British Government.

    1x1 consequence of the lapse of the Raj, questions with respect to the ~ ~ ~ n t e ~ ~ a ~ ~ c ~

    of the late Rajah's [27] family, and other matters, came before the Government of

    Madras for their decision ; and on the 10th of July, 1856, the Chief Secretary to that

    (loverumerit addressed a letter f roni their political department to the Government of

    India, of which the following is an oxtract:---" Par. 5. On the denzise of the Rajah

    the ~ ~ ~ ~ e r i ~ i i ~ e n t directed the Resident to continue, until further orders, the payment

    of all c u s t o ~ a ~ ~ pensions, aIlowances, or wages, to the family, ~ e p e ~ ~ d & n ~ , or

    serrants of the late prince : but that the recipient8 were clearly to ~ R d ~ r s t a R d that

    these d i s ~ ~ u r s e i ~ e n t ~ had been authorized only teniporarily and until the decisiou

    of ttie ~ o ~ o u r ~ ~ l e Court upon the whole question was reeeiued. Par. 6. The investi-

    gation of the nunierous claims to provision of some kind that will be advanced by $lit&

    parties referred t o in the preceding p n r a ~ r ~ ~ p h s , will of itself be 110 light task.

    There are, however, several other ~ ~ ~ p o r t a ~ ~ t subjects for inquiq, in c o r ~ ~ i e c t i o ~ with

    the late Rajah, besides these claims. Par. 7. First, there are some very oaluahle

    Cirutt runis, of ~hoi~l t r ies , endowed with lands yielding an annual revenue of about

    a lac iznd Rs. 20,000. There are large balances outstanding against the holders of

    thew lands, who, aw8re of the Rajah's ohjectioiis to seek the aid of the Coxupany'i

    Courts to enforce h i s just rights, hinw wilfully withheld their rents.

    $he lands have been misappropriated or fraudulently alienated, and there are

    ~ ~ ~ ~ ~ l ~ ~ ~ ~ u ~ idlerw and hangers-on of the palace, servants who hold useless offices iii

    th tw ~ ~ ~ ~ t ~ t u t i o r i ~ . The Choultry e s t a ~ ~ ~ s h ~ K i e n t ~ should he remodelled and freed from

    all &uses and the property beiongilrg to them de37oted for the purposes for which it

    was o r~g~na l iy granted. Par. 8. E283 Secondly, dainis on the part of Pagodas to

    payments of allowances have to be ~ ~ ~ ~ e s ~ ~ g a t e d . and some scheme laid down in

    respect to the continuance of these e n d o ~ ~ ~ e n t s , in some cases, either 131- money

    grants, or by a s s i ~ n ~ ~ ~ ~ R t of lands. IIar- 9. Thirdly, there are some vafuable village.

    ~ e ~ o i ~ g ~ n g to the Itaj in different parts of the province, some retained by Swajer

    whm the eountr>r was assumed by the British ~ o ~ ~ ~ n r ~ ~ e ~ ~ t , and sonre subsequentl1;.

    acquired I)y purchwe. These should be exainiried, and ally claims to or liens upon

    tlieiti considered. Par. 10. Fourthly, some dobts due by the late Rajah to private

    parties, or c*hims on behalf of rnenrbers of the family, still remain to be settled.

    h t . 11. Fifthly, arrangements must be made for the abolition of the Rajah's Court#.

    a i d for the d i s p o d of suit8 already on the file, as ~wll as for the establishment of a

    ~ ~ ) ~ t ~ ~ ~ ~ ~ y ' s Court ~ p i o ~ ~ a ~ ~ l ~ that of a District Moonsift') in the fort of Tanjore,

    w h i v l ~ will liuntefoi-tii itc under the ~ ~ i ~ , i ~ d ~ ~ , ~ i o I ~ of the civil arid criminal Courts of

    tllc Zillnli. Par. 12. Sirthfy, there are in the palace state jewels of great value, a

    valuable library of Oriental Forks, and an ~ r i ~ o u r y . which have fallen in to Croverxi-

    Itierit with the %j. Par. 33. I t appears to this Government, that the several matters

    ahnvc recited eaitiiot lie duly inquired into exeept by BII Officer specinXly deputed

    I I

    In sonie ca

    XSSI ~~~~~, 29

    for the purpose. The present acting ColIector has been hut lately a p p o ~ n t ~ d ; he

    is new to the Dierict, has had no experience in the intrigues of a ~ a ~ ~ r a t t a Court,

    and ewn x-ere his a ~ q u ~ ~ n t a ~ ~ c e with them greater, the onerous duties d e ~ r o I ~ ~ n ~ on

    him as ~ o ~ ~ e c t ~ o r and ~ a ~ ~ s t r ~ t e uf one of the heaviest Districts m d e r &is ~ r e s i d e ~ ~ c y ~

    ~vould leave him no Ieisure for such a task. Par. 14. Under these ~ o ~ ~ s ~ d e ~ * a t ~ o n s ,

    I am directed to snggest, that [29] some officer should be specially sent as Goin-

    niissioiier to Tanjore, should be placed in charge of the Residenoy, and be directed

    to investigate and report upon the various important questions above enumerated,

    and any others that may hereaftcr occur t,o this Government as demanding inquiry

    in c o ~ ~ ~ e c t i o n with the general subject. Par, 15. If this be approved, the Goveru-

    i~ ie~i t propose to select for the duty, as the ofi"lcer best qualified for it, Ur. E. Forbes,

    a t prcseut acting as third ember of the Board of Revenue, who has for several

    yems been resident at Tanjore, as well as Collector and ~ a g i s t r a t e of the district,

    and who possesses an intimate acquaintance wi th the sffairs of the Durbar."

    In reply to this letter, the Secretary to the ~ ~ o ~ e r n ~ e ~ t of India addrmsed a

    lettw to the Chief Secret:tary to the ~ o v e r ~ ~ n ~ n ~ of Xadras, dated the 8th of September,

    1856, of which the fofloiaaing i s an extract :-" Par, 3. In your previous letter, dated

    the 10th of July last, the ~ ~ ~ e r ~ ~ r n e ~ ~ t of Madrap have s ~ ~ ~ e n ~ y shown that &e

    subjects which call for i ~ ~ v ~ s t ~ g ~ t ~ # n and settlemeiit are so n ~ ~ e r o u s and ~ ~ ~ o r ~ ~ ~ t ~

    as to requirc to be dealt with by an oBcer appointed for that special purpose, The

    selection of Mr, B. Forbes, late the Residenl, at Tanjore, for this duty, i s a very proper

    one, and is accordingly sanctioned by his Lordship in Council. Par. 4. Of the

    varioue questions requiring consideration, those wnnected with the Choultries, arid

    lands on vhich balances of revenue are due, the claims for Pagodm, the rights over

    villages retained by the Rajah when the a ( ~ ~ ~ i n i s t r a t i o n of the country vas assumed

    by the. British Government, and the abolition of the Rajah's Courte, the Governor-

    Geyxeral in Council leaves for dispo~al E301 by the ~ o v e r i ~ ~ ~ e n t of Madras. Par. 5.

    But the mode in which it may be proposed to deal with the Rajah's debts, and with

    the state jewels, library, and a ~ ~ ~ ~ o u r y ~ should be reported to the ~ o ~ e r n ~ i ~ n t of

    India before any ~ e a s u ~ e s are taken; as also %he a p ~ o r t i o n ~ ~ c n t of pensions or

    ~ r a t ~ ~ ~ t ~ e s to the family and d e ~ e ~ d a r ~ t s of the Rajah."

    'upon the receipt of the above Ietter from the ~ o v e r ~ ~ ~ ~ i ~ ~ ~ t of India, the Madras

    ~ ~ ~ ~ e ~ ~ z ~ ~ i e n ~ OB the 25th of ~ e p t e ~ ~ ) e r , 1856, app0inte.d NLr. Forbes to be Corn-

    missioner for the purpose of the nzatters in question, and f u r ~ ~ s ~ ~ % d hini with

    ~ n s t r ~ o t ~ o n s i regard to the conduct of his duties as sucb Commissioner. The

    material portions of these instructions were as follows:---" Par. 2. Under the

    authority now conveyed from the Siuprenie Chvernment, the Right Honourable the

    Governor in Council proceeds to appoint Mr. Forbes to be C o ~ r ~ ~ ~ s s i o r ~ e r for the

    purpose of i x i ~ ~ u i r i n ~ i to and r e ~ o r t ~ n ~ upon the various questions dmsanding

    s ~ t t ~ e ~ ~ e ~ ~ t in connection with the extinction of t&e Raj of Tanjore. Par. 3, These

    subjects may be divided into two classes : namely, those which have bwa left for the

    disposd of this Government, and those which are to be reported to the Csoverrrment of

    h d i a before any measures are taken. E%r. 4. Under the first head faf&-%'irst, mie

    C l ~ ~ ~ ~ r ~ ~ ~ ~ s endowed by the ftajah of Tan&we; the ~ ~ ~ . a i i ~ e ~ e ~ z t s to be made for their

    Euture a d ~ ~ i ~ ~ ~ s t r a ~ i ~ n , and €or placing them upon a n improred footing, as W& 8s

    for the recoveqv of the rents due to them, and of Imds gradually alienated from ihe~~ . ,

    Second. ~llowances to Pagodas by a s s ~ ~ ~ r ~ ~ e n t of th late Rajah, or his ancestors,

    their nature, whether ~ e ~ ~ ~ i n a b ~ e with the Raj, or proper to be c o n ~ ~ n u e d as perpetual

    ~ i i ~ o ~ ~ ~ ~ n ~ s ~ 132) and in the fatter case, whether by grant U€ money or of land.

    Third. The state of the landed property, villages, or detached lands relaitred by

    Scvajee on the cession of the Tanjore country in 1799, o r subseque*tly acquired by

    hirn or by the late Rajah, the claims to or liens upon them. Fourth. Tlrc abolition of

    the Rajah's Courts, and provision to be made for the dispensa~~on of civ i l arid

    criminal justice by Courts of the Honourable Company of some of t i l e classes

    o ~ t a i n ~ n g in their territory. Par. 5. On all these q u e ~ i o n s it will be for the Coal-

    missioner to report to Government after due inquiry, and the Government will tf1e.n

    pass on each such 2 n d orders as may appear to Be called for. Par. (4. The subjects

    rcserwd for the ultimate decision of the Supreme ~ o v e r ~ ~ 3 e n t arcx--f"irst. The

    debts of the late Rajnb. Second, The State property, viz. :--jewels. XibrarF, ~ r ~ n o u r ~ ~

    etc. Third. Stipends, pensions, or ~ ~ a t u ~ t i ~ s to the family, servaiztFi, and d e p ~ n ~ a n ~ ~

    S E ~ ~ E T A ~ Y OP STATE PQR INDIA 'U. K. B. SB'E&iA f1859]

    13

    SECRETARY OF STATE FOR INDIA ‘U. K. B. SAHABA [ 18591 XI11 MOORE, 32

    of the late Rajah. Far. 7. On these matters it will be fo r Mr. Forbes to report in

    detail, and to supply all the information that may be necessary to assist the Govern-

    merit of India in their settlement. Par. 8. Lists will of course be taken of all the

    jewels belonging to the Raj, and passing with it to the Honourable Company, as

    also of the State armour and meapons, and catalogue of the library. Due means

    ail1 be adopted for the safe and careful custody of these valuables, until the pleasure

    of the Government of India be known regarding them.”

    Acting under this authority Mr. Forbes directed the chief officer of the palace to

    prepare statements of the lands and other State property of the Raj, and on his

    arrival a t Tanjore, as the statement had not been made out, he addressed a letter,

    dated the 17th of October, [32] 1856, to that officer, in which were these paragraphs :

    -“Par. 4. When, on the 15th instant, I communicated to you, to the Durbar

    generally, and the nephews of the late Rajah, the decision at which the Government

    had arrived with reference to the Tanjore Raj, and the general principles on which I

    was instructed to act in resuming the Raj and making provision for the family and

    retainers, I informed you that, \vhile all private property would be scrupulously

    respected, the public property of the State would pass to the British Governrnerit : tliat

    property tlie Government have ordered me to place in safe and careful keeping. Par. 5 .

    To enable nie to do this, and also to place it in my power to obtain all the information

    I require about the State property, whether in land, jepels, or otherwise, i t is my

    inteiition to assume possession, in the name of the British Government, of a11 the

    late Rajah’s villages and gardens, including endowments to Choultries and Pagodas,

    of the public property now in the fort of Tanjore, and of all the records connected

    with the Raj ; but while it is necessary that I should do this, 1 have to assure you,

    and to beg that you will assure others, that a careful investigation will be made into all

    claims that may be advanced by institutions or individuals to any part of the

    property, and that all to which a claim nLay be substantiated will be restored to its

    proper owner.”

    On the 18th of October, 1856, Mr. Forlles took possession of the property within

    the fort of Tanjore, and of the lands held by the late Rajah, or held by those x h o

    held them under Sunnuds of the Rajah.

    After taking possession of the property in the manner above mentioned, and while

    Mr. Forbes was [33] engaged in making lists and catalogues of the articles con-

    btituting the different descriptions of the property, and selling part of the pro-

    perty, a Bill was filed by the Respondent on the 18th of November, 1856, on the

    equity side of the Supreme Court a t Madras, against the East India Company. The

    Bill stated, that Sevajee at the time of his death, was possessed of and entitled to,

    as of his own right and private property, and distinct from the property belonging

    to the Raj of Tanjore, large estates, both real and personal, of the value of many lacs

    of rupees ; that on the death of Sevajee, the Respondent, as his eldest widow, accord-

    ing to Hindoo law, became entitled to inht.rit and possess his private and particular

    estate, real and personal, and to administer the same; and that, with a full

    knowledge of the Respondent’s rights, the East India Company, by their officers,

    servants, and agents acting by their orders, and in particular by the Collector

    and subordinate officers of the Collectorate of Tanjore, and by hfr. Forhes, began

    to interfere and intermeddle with the private estate and effects of Sevajee, and

    thereby, and from their power and control over the country, prevented the Re-

    spondent from receiving and possessing the same, and had refused to deliver tlie

    same to the Respondent, and that the officers and servants and agents of the East

    India Company had possessed themselves of the whole of the private and particular

    estate and effects, real and personal, of Sevajee, and had made, or were making,

    full and particular lists and inventories thereof, and had sold and disposed of and

    destroyed a considerable part thereof, and had received the proceeds of the sale

    and disposal thereof, and retained the same in [34] their hands, and threatened

    and intended, unless restrained by the injunction of the Court, to sell and dispose

    of the remainder thereof, and to appropriate the proceeds to their own use; and the

    Bill prayed that the Respondent, as the eldest widow of Sevajee deceased, and the

    first married among his surviving widows, might be declared by the decree of the

    Court entitled to inherit and possess, as his heir and legal representative, his

    private and particular estate and effects, real and personal, left by him at the timo

    13

    XI11 XOORE, 36

    of his death, subject to the paynzent and satisfaction thereout of the private debts,

    if any, of Sevajee, and to any legal claims and demands that niight exist against

    such private and particular estate and effects. That the East India Compan~

    niight be declared to be trustees for the Resp~ndent for and in respect of the

    private and particular estate and effects, real and personal, left by Sevajee a t the

    time of his death, and possessed by them, their officers, servants, and agents, a8

    in the Bill mentioned, or which without their wilful neglect o r default might have

    been so possessed. That an account inight be taken of the private and particular

    estate and effects, real and personal, of Sevajee,. possessed by the East India Com-

    pany, their officers, servants, and agents, or which without their wilful neglect or

    default might have been so possessed, and of the value thereof, distinguishing what

    &all remain in specie from what shall have been sold or otherwise disposed of.

    That the East India Company might be directed forthwith to deliver up to the

    Respondent the private and particular estate and effects of Sevajee which may so

    remain in specie, and to pay to the Respondent the value of such par t thereof,

    which by their wilful neglect or default [SI might not have been possessed by

    them, their officers, servants, or agents, as aforesaid, or which may have been

    sold or otherwise disposed of by theni, their officers, servants, or agents, as aforesaid.

    !tlmt the East India Conipany, their officers, servants, and agenta, might be r e

    strained by the injunction of the Court from further interfering, intermeddling

    with, selling, or disposing of the private and particular estate and effects, real

    or personal, left by Sevajee a t the time of his death, and for a receiver.

    The Supreme Court at Madras granted an injunction restraining Mr. Forbes

    froni proceeding with the sale.

    The aiiswer of the East India Company stated that Rajah Sevajee was up to atid

    at the time of his death, Rajah and reigning monarch of Tanjore, and was a

    Sovereign prince entitled to and in the exercise and enjoyment of the rights,

    privileges, powers, and dignity of an absolute Sovereign within the limits of the

    hereditary fort of Tanjore, and of certain other Districts and lands adjacent, thereto,

    but subject as to the residue of tlze country appertaining to the Raj, or kingdom

    of Tanjorc, to certain engagements and relations between himself and the British

    ~~o~,er r i i~~er i t . And the answer further stated, that in entering into the Treaties

    before mentioned, and in treating the sovereigiity and territories of Tanjoro as

    lapsed to the East India Company for the purposes of the Government of India,

    in trust for the British Crown ; in appoiiiting, through the Governinent of India,

    Mr. Forlm as Special Commissioner, and in taking possession of the property of the

    late Rajah, they acted in their public political capacity, and in esercise of the

    general powers, privilegee, and au-[36]-thorities vested in them by the various

    Charters and Acts of Parliament, by which the possession and goveriimeiit of the

    British territories in India, and the powers of niaking peace and war, and entering

    into Treaties, had been committed to them in trust for the Crown of Great Britain ;

    and that all the acts and matters set forth in the answer, were acts and matters

    of State. And by their answer the East India Conzpany insisted, that the question

    ab to their right to take possession of the estate and property which Rajah Sevajee

    died possessed of and entitled to as Rajah of Tanjore, or of any and what pans c ~ f

    the estate and property, was a question of State arising froni the chariivter of the

    Rajah as a Sovereign, and the political relations between the East India Conipnny,

    acting in trust for Her Majesty; and tlze State of Tanjore; and they, therofute,

    submitted, that the matters set forth in the answer, and on which they rested their

    right to take possession' of the property which was of the late Rajah of Tanjore,

    involved the construction of Treaties and of other acts of State, and were matters

    which could riot be inquired into by the Court, or in any Municipal Court of justice

    within Her Majesty's dominions. And the answer further stated that, without in

    any way waiving the right of the East India Coinpany to retain the whole of the

    property possessed by them and nientioned in the schedules thereto annexed, and

    without in any way admitting the jurisdiction of the Court to inquire into t,he

    grounds on which such right was vested; it had been determined, as an act of

    State and government, by the East India Company, through their Governor-

    General of India in Council and their Governor of Fort St. George in Council, that

    the E371 property and effects specified in certain schedules marked G. H. 0. P. arid

    '14

    SECRETARY OF STATE FOR INDIA W. K. B. SAHABA [185'3J

    ~~~R~~~~~ OF STATE FOR INDIA v. N. B. SANABA [I 8591 XXIX MOOEEL ss

    t?. should be dealt with and disposed of as i f the sanw haa neen the property of

    ltajah Serajee as a private ~ n d ~ v i d u a ~ , r e p r d being had in the first ~rkstancc to

    the just debts of and claims upon Rajah Seva-jee, which debts the East India Gem-

    pan9 were desirous should be paid from the estate, they beiag willing to allow tlte

    whole of such estate and property t o be delivered over, subject ko the debts of arid

    claims upon the late Rajah, to the person or persons who would have been the

    legal represe~~tative 01% representatives of the Rajah, had he been a private ~ n d ~ v ~ d ~ i a l ,

    UPOR such person or persons giving adequate security, to the sa t~s fac t io~~ of ihe

    East India Company* for the proper a d ~ ~ ~ K ~ ~ s t r a t i o n of the p ~ ~ p e ~ y in p a y ~ n ~ ~ ~ t

    of the debts and other~v~se. And the answer further stated, that the ~ o v e r ~ ~ i i i ~ i ~ t

    had resolved to appropy~ate the whole of the property ~nen t io~~ed in certaiii other

    schedules t h e r e t ~ marked and N., and all property s ~ ~ i ~ a r l y c i r c u ~ s t a n c ~ d

    which belonged to Rajah ajee, and not to third persons who might claim the

    -aim, for the payment of any of the debts due by the deceased Rajah which might

    appear to them to be fair and just, and after such paynxent to a p p r o p r ~ ~ t e he

    residue of such propesty towards ~ n a k i n ~ a provision for the faiiiily of the Rajah.

    And the answer s u b ~ i t ~ e d that, in any point of view, the ~ u e s t ~ o i ~ ~ 7 i e t ~ ~ e r any and

    what ~ ~ o ~ ~ ~ o K ~ ~ of the property left by Rajah Sevajee were h i s private prope~, ty~ or

    were property of the State of Tanjore, was a question involving the cons~ruc t~oi~ f

    a Treaty and relations between the States and the general political powers of the

    Gwernment of India; and was, therefore, a yuestio cogni~able by atiy

    ~ u n i c ~ p a l Court of justice. And the answer fur t~ier that the Court lrntl

    no j u r ~ s d i c t i o ~ in respect of the ~ a t ~ e r ~ aforesa~d, ers concesn~~~g the

    ~ e v e i ~ u e s under the m a n a ~ e ~ ~ e n t of the ~ o v e r U o ~ and ~ o u n c ~ ~ . The answer a d ~ ~ t t e c ~

    the state of Sevajee's f a ? ~ i ~ y ~ at the time of his death, as stated in the Bill, but

    ~ ~ ~ t h o ~ ~ t a d ~ ~ t t i n ~ that his p r o p e ~ y was liable to be a d ~ ~ n i s t e r e d as that of a

    private i t ~ d ~ v ~ d u a ~ ; and the ~ e f e n d a n t s u b ~ ~ t t e d whether, on the death of Sevajee,

    all his surviping widows did not become his joint heiresses aiid rep~ese~itati~"es,

    mid would not have inherited h i s private and particular estate, i f any, to the extent

    sf the interest of a Hindoa widow according to Bindoo law. The ~ e f e ~ ~ d a i ~ ~ s set

    forth in schedules annexed to their answer an account of the ~roper ty , estate aiid

    effects of Sevajce, i n c ~ u d ~ ~ ~ the pi+opei%y claimed by third parties, possessed by

    thein, or by their officers or agents on their l>ehalf, and of the value thereof, so far

    as they were able to form aiiy opinion respecting such value; but without ad-

    mitting that the Rajah left ally p r o ~ ~ s t y that could be called his private or

    ~ a r t ~ c ~ i ~ a r psoperty ; and without a d ~ ~ ~ i t t i n ~ that the R e s ~ ~ ~ ~ d e ~ i t had any legal

    claim or right in respect of any p ~ . o p e ~ ~ y taken ~ o s s e ~ ~ ~ o ~ ~ of by the East Iirdia

    ~ ~ r n p a ~ ~ y us their o ~ c e r s OP agents, the ~ ~ i s ~ ~ r stated that they did not ~ n t e i i ~ tu

    treat the ~ r o ~ ~ ~ r t y of Yevajee in the schedules, ~ i ~ ~ r k e d G. $3.0. P. arid Q. respect^^^\^^^,

    as ~ e ~ o n ~ ~ n g to them for their own use, or in tmst as aforesaid, or otheswise, or as

    fornxing part of their Peyenue~, or as being a p ~ l ~ c a b ~ e to the purposes aforesaid.

    Schedu~c G. of trhe answer, contained a list of ce&ain property, described as

    real property acquired since [39J 1799, which from its nature was not csseTi~ia~~y

    public or State property. Schedufe H[. contained a list of siniilar property ]tot

    taken possession of by the East India ~ 0 ~ ~ ~ ~ ~ 1 ~ . Schedule 0. c~Kltai~ied a 1

    personal ~ ~ r o p e r t , ~ described as acquired since 1799, aiid which froiti i t s ri

    was not esseI~tial~y public or State property. Schedules P. aud Q. c o l ~ t ~ ~ ~ ~ e ; d

    of personal ~ r o ~ e r t y of the same nature, not taken possession of by the East

    ~ ~ I ~ t ~ a T ~ ~ . Schedule R. contained R list of the horses, e ~ e p ~ ~ a ~ i ~ , s , cattle, carrtqck,

    eiv., of the late Rajah which had been sold.

    g of the cause took place 0x1 the 29th and 30th of ~ e p t e ~ } ~ ~ e r , nlrd

    tlre 1st of ~ ~ t o b c r ~ 1857, when evidence not ~ ~ ~ a t e ~ ~ a ~ to ~ t a t c was gone; ivio QU bd)ttr

    sides. The cause staod over until the l l t h of ~ e c e ~ r ~ b e r , 1857, for j ~ I d ~ x ~ l e n ~ , 011

    which day the Court decreed and dec~ared that the ~ e s ~ o n d e ~ ~ t , as tlke eldest &dow

    of Sevajee, and the first married anioug his s u r v ~ p ~ n ~ w i d o ~ s , \-,*as e ~ ~ t ~ t l ~ d to

    inherit and possess, as h is heir and legal representat~~?e, his private and par t icu l~r

    estate and effects, real and personal, left by him a t the time of h i s death, subject t u

    the p a y ~ e ~ ~ t and sat~sfact~on thereout of the prisate debts, if any, of Seyajee, allcl

    to any legal. claims and demands that might exist against sucli private and ~ ~ a r t ~ c u ~ a r

    estate and effects, and that the ~ e f e n d a n t ~ were trustees for the ~ e s ~ ) Q ~ ~ ~ ~ ~ l i for axid

    1 3

    XI11 ~ O O ~ , 40

    i i i respect of tlie private and particular estate and effects, real and personal, left

    by Sevajee at the time of his death and possessed by them, their ofticers, servants.

    aiid agents ; and the Court ordered that id should be referred to the Master to take

    $11 account of the pr imte and particular estate and effects, 1401 real and personal.

    of Scvajee, possessed by the Defendai~ts.

    The following reasons for this decree were transmitted by the mzhf Ju

    Sir ~ h r i s t ~ ~ p ~ ~ e r Xaw1insoa:--“ Tlie ~ l a ~ n t ~ ~ by her Bill prays that she may bc

    d~clared, as senior or first married widow of Sevajee, the late Rajah o€ Tanjore,

    nlto died without male issue, to be entitled to the private and particular estate and

    effects of her deceased husband, subject to the payment of his debts, etc. She also

    pmys that the ~efenda!~ts niay be declared to be trustees for her of (iuch of the

    property as map have been taken possession of by them or their sersants; also for

    a i l a c c o ~ ~ ~ t and a Receiver. The ~ e f e n d a n t s in their answer set up two lines of

    dcfence; first, that the Plaintiff has no case on the merits; and, secondly, that

    tlre Court has not any jurisdiction to t ry the suit. As regards the first, they s u b m ~ ~

    that the late Rajah Sevajee was an independent and absolute Sovereign, and JS

    sucli was not possessed of any private estate as d ~ s t i n ~ ~ ~ ~ h e ~ from the Public or

    State property; and they further allege, that, according to Eindoo lam, all the

    widows, and not the senior widow alone, a re entitled to succeed to the estate of a

    ~ ~ i l i r a t t a man dying without male issue either natural or adopted. In support of

    their second line of defence, namely, that the Court has no ~urisdiction, they ~ u ~ ~ ~ n ~ t

    tlznt they took and detained the property of {he late Rajah in their public and

    political capacity; that their taking of the property was an act of State, and ch‘tt

    tlir question of what portion is private and what public property involves the ron-

    sti-uction of a Treaty, and that eo~ise~iiently neither this nor any other M u I ~ ~ c i p a ~

    Court in Her ~a jes ty’s dominions has any [41] jurisdiction to entertain the yues-

    tion, It was also urged that the Court had no jurisd~ction, because the suit has

    reference to a matter concerning the revenue under the niana~ement of the Governor

    and Council.’ I will now state what f consider to have been established on the one

    side and on the other. and how i i i~ch of the several defences relied on by the De-

    f e i ~ d a ~ t s have been made out. I think &at t~ll the material facts set out in the

    ~ ~ l a ~ ~ ~ t ~ f f ’ s Bill have been clearly proved. I ant of opinion also that the ~ l a i n t i ~ ,

    according to ~ i n d o o la^, is, as the senior and first married widow of the late Rajah

    Seyjee, e ~ ~ t i t ~ e d to her late liusband’s private and particular estate and effects ;

    and that the ~ e ~ e i i d a I ~ t s have w h o ~ ~ y failed to prove or point out to us aiiy law or

    custorn, such a8 i s alleged in their answer, under which all the widows succeed to

    their deceased husband’s estate under circurnstaiices such as have been established

    iri this case. ?“his ground of defence, it niuy be observed, goes only to the ~~~~~~~~~t

    axrd not to the root of the Plaintiff’s claim. I ani also satisfied on the e\.idence that

    the late Rajah Sevajee, a Hindoo of the Soodra caste, was not a nie~nber of an un-

    divided family, slid that lie was possessed of private and self-acquired property,

    both real and personal. and that a distinetioi~ was observed during his life between

    h is State or Crown jewels and those which he either purchased himself or caused to

    be made for the use of his iiu7nero~~s wives and their families. An inspeclion o€

    the schedules attached to the answer, as well us the answer itself, confirms izie in my

    opinion that itiuch of tlre property detained by tlie ~ e f e n d a i i t ~ is of sueli a iiature

    BR cniinot~ allow of its being considered State property. Take, for instance schedule

    it.. t lw contents of which have been sold by the ~ e f c ~ ~ d a n t s . Can i t be believed

    that ull lhc carriages, irioluding numerous pony carriages and children’s carriages,

    atid 1 ) a l a I ~ ~ ~ ~ n s . or the cows and homes, ponies, etc., were State or public. property,

    01 over treated as such, or that all the contents of schedule M., including numerous

    fenralc jewels and trinkets, or, that all the fentale apparel, clotlies, shawls, silks,

    laces, etc., in schedde U,, are State property? It i s true that, as regards some tf

    these sehedu~es, G. W. 0. P. and Q., the ~ e ~ ~ ~ d a n t s , in their very c a u ~ i o ~ ~ s l y drawit

    answer (and which, were it not that of a ~ o r p o r a t ~ o ~ whose personal ~ ~ ~ o ~ ~ l e d ~ ~ in

    most instances i s necessarily small, niight be considered ui~satisfactory), admit thRt

    the pvoperty in the last-named schedule ‘ i s not essentially public,’ B somexyhat ani-

    biguous phrase; and tlmt as regarded it and some other property, both real and

    personal, they do not intend treating i t in the same way, or on trust, as the property

    in tlie other schedules, but are willing to give it up as if it had beelk private pro-

    I 6

    S ~ C R ~ ~ ~ R ~ OF STATE FOR IMDlA P. K. 3. SARABA [lSSS]

    SECRETARY OF STATE FOR INDIA U. K. K. SAHABA [1859] XIII MOORE, 43

    perty. I will only observe on this, that I do riot exactly see, unless the pY.ope'.iT

    referred to is private, how the Defendants can justify treating i t in any other way

    than as public property, really public, and which as such has come to their hands

    in trust. But the learned Counsel for the Defendants contend that the contents of

    the schedules and the nature of the property are immaterial, as no distinction, they

    say, can be 'allowed between the public and private property of an absolute Sovereign,

    as he can dispose of the whole of it as he may think fit ; citing as an authority for

    this principle the case of T h e Adwcate-Genritrl of Bombay v. Amercliuizd (1 Knapp'"

    P.C. Cases, 329 n.), and T h e Lord -Advoctrte v. Lord [43] D m g l a s (9 C1. and Fin.

    211). This last case was referred to for the following dzcf?lm of Lord Broughain's,

    namely, ' It is only within the last half-century that any private property has been

    acknowledged to exist in the Crown a t all; prior to that, all lands descending on

    the Cropn, even from ancestors or collateral relatives, were held jure coronue. A11

    the property of the Crown is held for public purposes, arid is Crown property, except

    that which the individual Sovereign has retained a right to deal with in his private

    and personal capacity.' This dictum appears to be confined to landed property,

    and, whether strictly correct as regards all landed property, is, I think, with erery

    respect to the nolde and learned Lord, fairly open to doubt ; for, though it is true

    that according to the Common law of England the King, being a Corporation,

    purchases of real property made by him after the assumption of the Crown rest in

    him in his Sovereign capacity, and descends to his successors, ' still purchases made

    before the accession to the Crown, or descent from collateral ancestors after the

    u c ~ e ~ ~ i o i i of the Crown, vests in a natural capacity' (see Co. Litt. 15 b, note I),

    showing that even in England the Monarch could take real as well as personal pro-

    perty in his own right. As was, however, observed by the Bench during the argu-

    ment, the Statutes of 1 Anne, c. 7, and 39th and 40th Geo. III., c. 88, regulate yuei-

    tions regarding the private property of the British Sovereiqn; and it is not by the

    English Statute, or Common law, that the questions in this suit are to be decided,

    but by the Hindoo law. And even the statement in the case referred t ~ , 1 Knapp'h

    P.C. Cases, 329, namely, that there was no distinction between the public and private

    property of [44] an absolute Sovereign, must, I think, be taken in connection with

    the facts of that case, and the point then under the consideration of the Court. In

    that case, as well as in E?p?iiristonr v. Bedieechwnd (1 Knapp's P.C. Cases, 316), the

    question arose on the seizure of an enemy's property; and i t was held that on the

    seizure of the property of a hostile Sovereign, sz not1 flagrante sed non d u m w s s u n f e

    hello, no distinction could be allowed between his public and private property.

    Here there is no question as to the seizure of an enemy's property, o r as to peace or

    war, but whether the late Rajah Sevajee possessed any private property, and if so,

    whether the detention of such property, iiow bclonging to an inhabitant of a terri-

    tory peaceably become part of the British territories in India, can be justified, and

    on the grounds set up by the Defendants. But admitting that in the case of iin

    absolute Sovereign, such as was contemplated in the above case, 110 distinction citti

    be made between his public and private property (and few such, I think, call be

    found in the present age), can I assume, on the facts before us, that the late Rajah

    n i i s such an absolute Sovereign as that he could have disposed of his fort or other

    public buildings or State jewels as he did of his other property, both real and pei-

    sonall There was no proof before us of his ever having disposed of any of the

    State property; and as to his being an absolute Sovereign, what evidence had the

    Court before it of that fact? The evidence, as fa r as i t went, tends, I think, to show

    that his Sovereignty was little more than nominal ; that he exercised no Sovereign

    pan-ers over the Kingdom of Tanjore; that he resided within the circunzscribed

    limits of the fort of Tanjore (where a resident and officer of the East [45] India

    Company was always presetit), enjoying little inore than, to use the expression of the

    Directors of the East India Company, ' a titular Sovereignty,' and certainly not

    inore than, to adopt the words of the Defendants' answer, ' the outward state and

    dignity of the reigning monarch.' To what even that amounted was not very clearly

    shown. We had evidence, however, that the late Rajah never did any of the acts

    that mark Sovereign power; for instance, he did iiot send or receive Ambassadors,

    or keep up political relations with any foreign States; he did not coin money; he

    did not collect or in ally way manage the revenues of the Kingdom of Tanjore;

    I i

    XI11 ~OORE, 46

    but i t \?-as shoxvii that he received an aniiual st ipe~)d from the East India Co~pai1y,

    mine of h i n receipts for which were put in, for what purpose I hardly know, unless,

    perhaps, for the last few words, by which the receipt, of a certain sum on account of

    the East India Corupany was ac~now~edged ' as par t of ~ u y lac of star pagodas and

    otic fifth part of the iiet rerenue of i i iy c o u ~ ~ t r y for the year ; ' not of any Riilgdoun,

    be i t observed. liipoii the whole of the evidence before us I alii s a t ~ s ~ e d that the

    late Rajah Sevajee was not the absolute Sovereign suggested by the Defendants,

    aiid that he had private property, both real and personal, as I have above stated.

    I aiti further strengtherled in this last conclusion by the fact that, according to

    Iliridoo law and custnrn, a Eindoo Sovereign may have private properly. See

    ~ t r a n ~ e ' s Hindu fraw, ool. i. p. 209, where, after statiug that a ~ ~ ~ n ~ d o ~ ~ ~ is irot

    ble, i t i s added, that * the effects and private estate of a Sovereign, like thme

    of iiii ordinary ind~vidual ~ ~ i I i d o o ) , are i n con~~I~on , a d distr~~)Litable a i n o ~ ~ ~ s t hi

    mis.* See also 2 Colebrooke's

    Hindu Law, c. 4, 8. 1, et seg. My ~ u d ~ ~ ~ e i ~ t 0x1 the above par t of the case has been

    formed wit*hhout any reference to the Treaty of 1'799, put in evidence by the Defend-

    arrts, possibly for the purpose of s u ~ ~ p o r t i n ~ o e of the points raised by them,

    ~ i m d y , that the Court could riot take cognizance of the suit, because it involved the

    ( '~) i is t r~ct~on of a Treaty, Upon this point 1 would here remark, as well as tipon

    rioiiie others equally beyond dispute, bat which were mueh dwelt on by the learned

    Counsel for the ~ e f e ~ ~ d a ~ ~ t s , that the Court has never entertained any doubt respect-

    iirg them, though not able to see their applicability to the facts of the present case.

    I I efer to such points as that the construction of Treaties, or the public acts of St,nte

    betmen Sovereign powers, or acts relating to peace or war, could not be tried by

    airy ~ I u I i i c ~ ~ ~ l Courts. As little matter of doubt is it that the East India C o ~ ~ l ~ ~ a t ~ ~ y ,

    though subjects, have certain Sovereign powers delegated to them, such as those of

    inakirip peiice and war, and of rnakirtg Treaties with certain of the native powers

    tit A ~ i a . and that concerning sueh wts as can be included under tlre alxn~e heads

    neither this *nor any other ~ i ~ u n i c i p a ~ Court has any jurisdiction to inquire. But

    i r r the way in which the PlaintiE shapes lisr r*ase liefore tlre Court, I think, that these

    pttiiits do riot fairly arise. The ~ ' l ~ ~ i ~ ~ t i ~ sues as a private indi\~idual, and as the

    %ub,jcet of a country forming part of the British territories in India. Of the

    ~ ~ i ~ x ~ e ~ a ~ i o ~ ~ of the Raj. f the Defeitdants taking possession of its r e ~ e ~ i ~ e s , or of the

    Slate property of the Iiingduni, whether consisting of lands, forts, jewels, or nzuni-

    tiotis of war, she makes 110 c o n ~ p ~ a ~ i ~ t . She HUCS only for what E471 she alleges to

    be her. property arcordirig to the Hindoo law, ~i:tiizely, tlie private estate and effects

    of her deecased husband, Rajah Sevajee, the whole of which, she alleges, the De-

    fcliidants detain froiu her without any just~ficatioi~. Let us proceed n o s to the

    ~ ~ ~ f e ~ i d a n t s , aecoird fine of defence, ~ a r ~ e ~ y , that, to tEie jur~sdic t~on of the Court.

    They say, a s s ~ i ~ ~ ~ i r ~ ~ that there w i ~ private properly, its seizure and detention carrriot

    btt InynircxI into hy this Court : first, hecause its seizure was an act of State; mid,

    w.!ondlp, Leciiuse the property seized, or a portion of it a t least, i s revenue. First,

    then, as to the seizure being ' an act of State' ( t ~ ~ [ ) u ~ I ~ maiiy of my argu~r~ents will

    li;. tr oii both lines of defence). It, is not every act by a

    ~~(~~ .e r i in l e~ i t , or by those representing the S o v e ~ e ~ ~ 1 iii a foreign country, n liich

    vi11 be exempted from tlie jurisdiction of the ~ ~ u z ~ i c i p a l Courts. See C7nirrc.r O P IT.

    Ii:j.te ( 3 Knapp's P.C. Cases, 332). But a s s u ~ n i ~ ~ ~ an tict of State to be an act of the

    Sovereign yowor, in relation to peace or war, or an act done by it, as being absolutely

    i ~ ~ ~ e s s a ~ y for the puf3lic Pafcty, or J Z ~ : q t d ~ ~ ~ ~ ~ ~ z ( ~ ~ ~ ~ ~ res ~ ~ ~ i ~ a ~~~~~~~~t (and r rde r

    Tll iS head a benefit or iiicrease to the revenue c : ~ hardly be included), or acts of a

    iiiiiilar description, have the Defendants brought the acts of seizure and deterrtion

    c t f the ~ ' ~ a i i i t i f f ~ property within the priiiciple of the protection they set up? hxrd

    fitither, was, ilk fact, the seizure of the private property an act ordered by m y

    (~(J~.ei i i r i re~t~ at all? Now, what are the facts which bear on this portiork of tlle (:ate$

    After the death of the late Ekajah Sevajee, which toa-k place in October, 1858, it

    was d e ~ ~ r x n ~ i ~ e d by the East India Directors tliat the Raj of Tartjore liad lapsed

    to the East India Company for want of [48] niaIe heirs to Itajah Sevajee. T l l o ~ l g ~

    this lapse Itas riot ~in~~1ediately publicly ~ n I ~ o ~ ~ ~ ~ e e d , the East India Conlpany iIIxsst,

    I think, be comidered to have becoine the ~ o v e r e i ~ ~ ~ power throu~hout he ~ i ~ ~ ~ d o n ~

    uf Tanjore froui the death of Rajirh Scyajtx. S o very pe rcep~ i~ le change i1, the

    1s

    ~ ~ C ~ ~ ~ A ~ Y OF STATE: FOB ZNUIA 21. K. B. SAEABA [1859)

    h i d 2nd vol., App. [46] 329, i s to the same effect.

    What is an act of State?

    SECRETARY OF STATE FOR INDIA 'U. K. B. SAHARA [1859] XIII MOORE, 49

    government of the country at large would be made, as the territories of Tanjore

    had long been under the management aud control of the East India Company.

    Such then being the state of things, i t is only after a correspondence between the

    East India Directors and the Government of India and of Madras, that in Sep-

    tember, 1856, Mr. Forbes is appointed, under the direction of the Government of

    India, for the purpose of inquiring into and reporting upon the various questioiis

    delllanding settlement in connection with the extinction of the Raj of Tanjore. 111

    the letter of the Government of India, of the 8th September, 1856, authorizing tlic

    appointment of an officer on this special duty, I find the following passage :-' Rut

    the mode in which it may'be proposed to deal with the Rajah's debts, and with the

    State jewels, library, and armoury, should be reported to the Government of 1nd:a

    before any measures are taken.' It might be contended from the coil

    cluding words of the above extract that KIO authority was given or

    intended to be given for the taking possessiori of even the State jewels,

    etc., till some further report had been made to the Governnient of

    India. Such, however, does not appear to have been the construction put

    upon i t by the Government of Madras, who, oii the receipt of the above letter, in-

    structed Mr. Forbes, in a letter of the 25th of September, 1856, ' to take lists of the

    jewels beloiiging to the Raj, and passing with it to the Honourable Company, as also

    [49] of the State armoury and weapons.' Neither of the above letters appear to

    contemplate, much less to authorize, the seizure or detention of other than State

    property, or, in other words. of the property of the Raj, passing with i t t o the

    East India Company. It was proved, however, I may here remark, that previous

    to this authority being given, the rents and profits of the villages and lands bought

    by Sevajee had been received by Mr. Forbes since the Rajah's death. The evidence

    of Ramachundra Row, uncontradicted, is, that Mr. Forbes had been receiving the

    rents and profits of those villages since Sevajee's death. The sale also of the coil-

    tents of schedule R. had taken place early in 1856. On the 18th of October, 1856.

    it is that Mr. Forbes, having received hi8 new authority, which is relied on fol

    making this seizure an act of State, took possession of the property in the fort ( , I '

    Tanjore. It appears to have been an indibcrirninate beizure, both of public aurl

    private property; the orders of the two Governinents, as I have above pointed oui,

    having been expressly confined to the State property. Assuniing theii that the tah

    ing possession of the public and State property can be considered an act of State,

    as ordered by the Government of India, aud as being a necessary consequelice, pev-

    haps, of the assumption of the Raj, how can the seizure and detention of private

    property (and especially of such portion as consists of rents and the produce of sale,

    made previous to October, 1856) come under the sanie protection? Tlie seimre of tlrc

    private property can, I think, be held to be brought within the protection of the act of

    State plea only on proof either that the property was bona fide believed at the time

    to be all public, or that its seizure was rendered [SO] unavoidable froin the i m p \ -

    sibility of distinguishing the one from the other, or because the public could not

    possibly have been taken possession of without also seizing the private. This last

    ground, it should be observed, affords no rwuse for the detention. But we had iiot

    any evidence of such a state of circumstances existing as I have above suggested ;

    no State property was shown to have been iii danger, nor was there aiiy ex-iduliic

    that there existed any difficulty in separating the one from the other, which ordiiiai p

    care illld patience, even after the seizure, niight not have overcome.

    aftei the seimre, for it should be borne in mind that the gravanieri of the Plaintiff's

    coniplaiiit before the Court is the detention of her private property; not the seizure,

    which of course would have been the subject-rnatter of an action of trespass oil the

    plea side of the Court; nor had me any proof that there was any bona fide belief

    that all was public property. On the contrary, Mr. Forbes, in his letter of the 17th

    of Octobei, 1856, writteii the day before the seizure, shows that he knew theie was

    private property amongst that about to be seized, for he expressly states that all

    propeity to ahich a claim shall be established shall be restored to its owner. It

    appear8 tlieii from the above, that ail order having been issued to take possessioii of

    public property, private property was taken, and is now detained under the circuiit-

    stance5 above set out. I ani of opinion, that such detention cannot be considered

    i ~ i i act of State, nor can I consider that the subsequent adoption by the I)efendaiit\

    can inake that an act of State which originally vas not so. The remaining grouird

    19

    I sap

    XIII XOORE, 61 ~~~~E~~~~ OF STATE FOR INDIA 9. xi. B. SAHABA f18591

    relied 0x1 by the Defendants to bar the jur~sd~ct ion of the Court is, that the seizure

    [Gl] related to a matter of revenue, from i q u i r y into which the Court i s expressly

    ~ ~ r e c ~ u d e d by the 23rd clause of the Charter e s ~ a ~ l i s i ~ i ~ i g the Court. In support of

    this point the learned Counsel cited the Statute, 16th and 17th Vict., c. 95, sec. 27,

    by which i r i s enacted ‘ that all real and personal estate within the said territories,

    ~ s ~ ~ e a t ~ i ~ g or lapsin for want of 52x1 heir or successor, and all ~ ~ r o p e r t y w ~ t l ~ i n the

    said territories ~ e v o l ~ ~ i i ~ ~ ax bonrc vncnntia for want of a rightful owner, shall (as

    part of the revenues of India) belong to the East India Company, in trust for Her

    Xajestp for the service of the ~ o v e ~ , n t ~ i e ~ i t of India.’ Looking to the words used in

    the Charter, and the i~~convei i ie~~ce nt nded to be ~ u a r d ~ against. 1 am ~ n c ~ ~ ~ ~ e d to

    think that, a very fair donbt may be e~~ter ta ined as to whether an escheat,, or lapse

    under the a h e S ~ a t ~ i t e , comes mithiir the words of the Charter as ‘ revenue under

    the ~ ~ ~ a n a ~ e ~ n e n t of the Governor (of Fort St. George) and Council, or as revenue

    collected under ~ e ~ u l a t i o i ~ s made by hint.’ I think also that the same reasons do

    riot exists for p r e ~ ? e n t i n ~ the subjects of the Queen from resorting to Her Courts in

    the case of such escheats as in cases relatiirg to the collection of the ordinary revenue,

    rnude as it, is to a great extent in sinal1 sums, and under re~u~at , ions and usages

    which i t might be e~ceedii~gly i~~cot3vei~~ent to submit to the co~isideration of the

    ~ ~ u c o r i ~ s Court. I think, hosver-er, that this line of defence, namely, that the pro-

    perty seized xras revenue, may be disposed of on the same grounds tts I have con-

    sidered a s u ~ c i e ~ i t answer to the defence that the seizure was an act of Stato ; for

    &upposing that the seizure of the public property, which had lapsed to the East India

    ~ ~ i ~ ~ ~ ) 5 2 ~ ~ ~ under the Statute, E521 to have been an act done in the col~ect~oii of the

    revenue ~ i t h i n the rneaning of the sid art er, cati we extend the Bame protection over

    the wilful seizure and d e t e ~ i t ~ ~ n of private property ; an act not ordered either by

    ~ ~ v e r n ~ e ~ t , or j ~ ~ s t i ~ e d by any R e ~ u ~ ~ L t i ~ n , or eces~~tated b-y any d i ~ ~ u l t y 08%

    i ~ ~ a v o i d a b ~ e necessity, as I have abovc already shown1 41 think we should not be

    justified ill doing so, king of opinion that, the property was seized arid has since

    been detained with the knowledge that some of it was private property. Th is fact,

    I think, d ~ s t ~ ~ i g u ~ s h ~ s t h i s case froin ~ S ~ ~ # t ~ ? ? ~ r v. ~~~~0~ (6 Noore’s P.C. Cases, %57),

    which was relied on in support of the revenue defence as well as tbat of the act of’

    State. In that, case a slip had been made : m d there can be little doubt, after rcad-

    iag the facts of that case, but that the ~ e ~ e ~ d a ~ ~ t b u m fi& beIiewd tXZ& he ~ ~ ~ g h t

    make the distress for the whole arrears of quit-rent due from the premises, without

    regard i,o the ~ ~ ~ e s t i o ~ i of whose name was ~ ~ e ~ ~ t ~ o n e d in the warrant. I fully sub-

    ibe to the authority of that case, as Tell as to the large class of cases establishing

    the rule, that parties bO?kf‘t fide believing they are acting in pursuance of a Statute

    and according to law, are entitled to the special p r o t ~ c t ~ o n which the ~ g ~ s l a t ~ r e

    niag have a ~ ~ o r d e d them, though they h w e been guilty of an illegal act. But I do

    not think the prir~ciples there laid down app~icable to the present case, which is

    d~st i~guishable not only on account of the want of ~ O W $&s, but also on the ground

    that it is not an action of trespass for the seixure, but a suit for the detention of

    the ~)roperty oE the Plaintiff. I must here observe, that though I am now delivering

    tile ~ i ~ d g ~ e i ~ ~ of the Court, Mr. Justiee Davison, who, owing to his absence, has not

    E531 had any opportunity of reading the judgment, and conse~uent~y i s not answer-

    able for the reasons or obser~rations c ~ i ~ t a i n e ~ in it, fully concurs with me in the

    facts of the case and in the conclusion a t wltich I have tmrived, namely, that the

    1’~~i~~tiff i s titled i>o a decree, on the ground that, as to par t a t least of what they

    hare dcme, the defence set up by the ~ e f e n d a ~ i t s cannot, avail them, because they

    i irc unriecessa,rily and wilfully detainin8 private property of the late Rajah Seva jee,

    with Pull howledge that it is such private property, and that they have not any

    title to it ~ ~ ~ a t ~ v e r , The Defendants having therr failed to establish any of their

    grounds 04’ defence, it reniains for ine only to dec~are the ~ ~ a ~ i ~ t ~ ~ e~iti~led to the

    decree of the Court as prayed :---First, that as senior, or first married Tyidow, she

    i s e n t ~ t ~ ~ to the private and par t~cular estates amid effects of her deceased h u s ~ ~ a ~ d ~

    the late Rajah Sevajee. Second, that, the D e f e ~ ~ d ~ ~ i t s nzay be declared trustees for

    her for so much of such propertF as they have possessed themselves of. Third, for

    an accou~it of all property. The othcr points ( inc~i~ding costs) reserved until after

    the ~ a s t e ~ ’ s report, a2id for further directions,”

    The present appeal was from the above decree, and was prosecuted by the

    20

    S~~~~~~~~ OF STATE FOX. INDIA L'. !I. D. SARABA [ 1859 J XfII MOORE, 64

    Secretary of State in Council of India, who came in the place of the East India

    Company (see Statute, 21st and 22nd Yict., c. 106, for the better ~ o v e r r ~ m e ~ ~ t of

    India; sectioii 3 declares, that the Secretary of State is to have the powers formerly

    exercised by the East India Conipany).

    Sir Hugh Cairns, QC., Mr. Forsyth, &.C,, and Mr. U'. B. MelvilI, for the S e ~ ~ e ~ ~ r ~

    of State in Council for the affairs in India.

    The s u ~ ) s t a n ~ , ~ a ~ question is, whether the taking pos-[5~]-sess~on of the d ~ c e a ~ e d

    Rajah's property by the East India Compa~y, in virtue of Treaties authori~ing the

    a ~ ~ n e ~ a t i o ~ ~ of the Raj of Tanjore, was not such an act of State and ~overeign

    authority as cannot be ~uestioned or inquired into by a ~ u ~ ~ i c ~ p a l Court within the

    territories of the E& India Company. Three questions are involved in this con-

    sideration : First, whether by the Charters and Statutes ereating and defining

    the j ~ r i s d ~ ~ t i o n of the Supreme Court a t ~ a d r a s , the East India C o m ~ a ~ i y , as the

    g o v e r ~ i ~ ~ ~ g power in India, is amenable to that jus i sd~ct~on for acts done by them

    in their go~rerning and Sovereign character ; secondly, whether the acts complained

    of, are not acts of State and Government, and of suck a riature that the Govern-

    ment who have done the acts, cannot be made amenable to any ~ ~ u n ~ c i p a l Court,

    whatever, and ~ ~ ~ ~ r d l y , whetl~er, having regard to the fact that the seizure involved

    the question of a Sovereignty, namely, tlie rtaj of Tanjore, there was any foui~datioi~

    for the distinetion taken by the Court. below between the public and private pro-

    perty of the late Sovereign, the Rajah.

    The Suprerile Court of Madras was created by the Chitrter

    of 1500. The 21st section of that Charter defines the jurisdiction of the Court, the

    powers of which am extended by Statute, 4th Geo. IV., c. 71, s. 17. The "23rd

    section expressly provides that it shall not be co~npetent for the Court to entertthin

    or exercise j ~ r i s d i c t ~ o n i any suit or action against the ~ a ~ e r r ~ o r - ~ e ~ ~ e r a ~ or the

    Crovernor of ~ a d r a s for or on account of any order, or other act, ~ ~ a t t e r , or thing

    done in their public c a p a c i ~ ~ , or acting as ~ V ~ r ~ o r - G e ~ ~ e r a I or 1551 G o v ~ r ~ o r and

    Council. The 30th section directs and points out the mode of suing the East India

    Company when it i s capable of being sued in the Supreme Court. The CaKcutta

    Charter of 1774, and the Statutes, 13th Geo. ITI., c. 63, sec, 13 and 14, and 2 h t

    Geo. III., e. 70, sec. 2, are in pari ~~~~~ with the Madras Charter. The quarrel

    between Sir Elijah Impey and ~ a r r e n Hastings respecting the jur~sdic t~on of the

    Supreme Court of Calcutta, led to the passing of the latter Statute (vol. 4, Mills'

    Nist. of Brit. India, by Wilson, Book T'. ch. S), which excludes that Court froill

    taking c o g ~ ~ i ~ a n c e of the acts of .the ~ o ~ e r ~ ~ o r in Council. It i s necessary, therefore.

    to consider the position of the East India Company, a t the time the Supreme

    Court a t Madras was created by the Charter of 1800. Under the Statute, 9th and

    10th Will. III., e, 44, and the Charter of i n ~ o ~ ~ o r a t ~ o n of Will- III. of I693, and

    Statute, 3 r d GeQ. III., ch. 52, secs. I and '71, the East India Company had a two-

    fold c~~arac t e r : first, they were a tradinq ~ o ~ i p a n y ; and secondly, they ltad

    ~overeign a ~ ~ t ~ ~ o r ~ t y , with the power of making peace and war. The Stat~ite, 3rd

    and 4th \Till. IV., e. 85, took away the trading mnonopoly, but the Sovereign right?;

    were left to the East India Company in trust for the British ~ v e r n n i e i ~ t . - [ ~ o r ~

    Kingsdown: Does your argument to this extent, that the East India ~ o ~ ~ p a ~ ~ v

    could not be sued a t all in the Indian Courts+-No, they were liable to be sued in

    the Courts in India, as here, for acts done in their ~ r ~ d i n g capacity. They could be

    sued upon a contract. TtZe B a d of ~ e ~ ~ g ~ v. The Vlzited C o m ~ ~ y {Bignett's Reps.

    127 ; S.C, 2 lhapp 's P.C. Cases, 245). In Gibson v. Tire East In&@ C O I ~ - [ ~ ~ ] - ~ ~ ~

    {a Bingh. N.C. 273), the Chief Justice Tindal defines the character of the East India

    any and their liability to be sued for acts done in their trading capacity. He

    says, '' It i s manifest that the East India C o ~ ~ ~ I ~ a r ~ y have been invest,ed with povexs

    and privileges of a twofold nature, perfectly distinct from each other: namely,

    powers to carry on trade as merchants, and (subject only to the prerogative of the

    Crown, to Be exercised by the Bosrd of ~ ~ ~ ~ ~ ~ ~ i s s ~ o ~ i e r s for the affairs of India),

    power to acquire, and retain, and govern territory, to raise and n i a ~ i ~ t a ~ n armed

    forces by sea and land, nad to make peace or war with the native powers of India.'>

    --[Sir John Coleridge: Doe d. S e e ~ ~ ~ ~ O v. The East I d i a ~ o ~ z ~ a ~ ~ (10 Moore's

    P.C. Cases, lao), was a case of' ejcctment brought in the Supreme Court of Calcutta

    $0 recover a piece of freehold land which the East India Conipaii~ claimed t o be

    21

    Upon the first point.

    Xi11 MOORE, 57 SECRKL'AKP OF STBTI1: FOR WUIA 0. IT. B. SAHABA

    entitled to.]-The t r a ~ i ~ ~ c t i o n s upon whirh the question in this suit depeIided were

    not matters subject to the jurisdiction of the Madras Court, or, indeed of aiip

    Muiiiciid jurisdiction 111 India. Tliey werc. matters of State arising out of a

    political transaction. The maintenance of such a suit, as is here contended for,

    would be i n c ~ i s ~ s t e r l t with principles of public policy. -[Dr. Lus~iix~gtoii : That

    very qucstion was decided here in 1827, in the case of Tke Basf Z d & i ~ ~ ~ ~ r i ~ ( i ~ ~ ~ v.

    Syed AZEy (see note of tliis case, 7 Moore's Ind, App. Cases, 565) , wlierr the Privy

    2ouncil held that the Supreiiie Court liad no jurisdiction. That was a case of

    resumption of a Jaghire held as an Altlrnaghul~ elzclm under a grant from former

    Nawabs of the Carnatic, which the Eart Iudia Corirptlny under the Treaties resumed

    1)v virtue of their Sovereign power. It was detern~ined that the propriety of the

    [57] exercise of such Sovereign power could not be questioned by tile Suprenie Court

    a t Xadras ; the very Court from whence the preseiit appeal comes.]-That case has

    iiot been reported. It is 110 doubt most applicable, and is all importarit to our

    argunieiit. There is, however, ailother case, Dhnekpe ~ ~ ~ ~ ~ e e v. The E a t Indw

    ~ ~ ~ / ~ ~ ~ ~ ~ ~ y , which is similar in principle, which came before the Supreme Court at

    h i i ibay in 1865, report of which is to be found in Sir Erskine Perry's notes of

    decided cases (2 Morley's Dig. 307). Tliat was an action of trespass brouglit against

    tlic? East India Cotiipany, for breaking and entering the Plaintiff's dwelling house

    1.y order of the Bombay ~Over~I~rient , and it was lieid by both the Judges of that

    Court that 110 actiori would lie against the East India Company, as it was an act

    done by the aiithority of the Governor and Council, and, therefore, an act of

    State, and for which the East India Conipariy were not answerable. Beiiig &.XI act

    of State, it was clear that the Supreme Court could iiot take cogxiizaiice of tlie

    action. On the first head we submit then, that upon the authorities as well as

    the ~ ~ i n c i p l ~ s of ii~teriiational aw, the seizure and taking possession of the property

    of the Rajah of Tanjore, was an act of Government and State, done by the East

    India Company in their Sovereign character, and by virtue of their Sovereigil

    power ; and as such, incapable of being questioned or inquired into by any ~ ~ u r i i c i € ) ~ ~ ~

    Court, mort. especially the Supreme Court of Xadras, created by the Madras

    Charter of 1800. TJte E ~ e t India C u ~ ~ ~ ~ ~ ~ ~ ~ v. Syed AIly (7 Moore's Ind. App. Cases.

    This brings us to the second question involved in the inquiry, namely, whether

    the acts done were [ea] not only acts of State, but done as act8 of State; for if so,

    as already strown, they could not be inquired into hy the Supreme Court at Madras.

    Kow, the authority for the seizure emanated froin the Government. The despatch

    of the 16th of April, 1856, declared tlie dignity of the Raj extinct, and that the

    Raj had lapsed to the British Government ; and the subsequent correspoiiderrce

    froni the Government to the Collector, and tlie appointment of Bfr. Forbes i ls

    Coiyin i i s~ io~~e~, w re all acts of the ~ o ~ r e r ~ ~ r ~ e n t exercising the Sovereign author~ty,

    and the ultimate seizure and possession of the Raj of Tanjore, and property of the

    deceased Rajah, hy Mr. Forbes, was tlic seizure of the Government, arid an act of

    State. The judgment of the learned Judge of the Court below admits that the

    seizure of the pbblic property, as it is there described, -as an act of the State, and

    iricapable of being inquired into by the Supreuie Court, and limits the remedy 10

    tlie private property of the Rajah ; thereby affiriiiing the jurisdiction of the

    Supreme Court to adjudicate ctii the validity of the seizure, by d e t ~ t ~ n ~ i ~ i ~ ~ ~ what

    3 5 7 ~ s public and wlrat was private property. Now, that would be to assuitle a ~ i t ~ i o r i t ~

    over the entire transaction. For if the Court lias p o n w to sever the acts of Mr.

    Forltes by adjudicating upon what they thought was an excess of his authority.

    they must have power t o ascertain and declare whether his authority i n general

    has been rightly exercised ; and we insiqt that in this respect it has not. Supposr

    an action of trespass had been brought against Mr. Forbes for tlte seizure. Cotlld

    the Supreme Court entertain such action? KO person has a

    lucuq stosdi to bring such an action, 1101' could the Court take cognisanre [gg] of

    it. The sets of Hr. Forbes >)ere the acts of the Government, and if the Governrnent

    is not liable to the jurisdiction of the Court, neither is he. But adniittixig tliat the

    authority given to Mt. Forbes was lioiited, and that lie did exceed it, still h i s acts

    have been recogniaed and ratified by the (~Ov~e~I in~eI~t , which would cure such defect,

    B w o n v. Delzmcrn ( 2 Exoh. Rep. IS?). The C(ciwliiie (3 Philliniore on Internatiollal

    22

    555).

    Certainly not.

    SECRETARY OF STA’FE FOR 1NI)IA 11. K. B. SAHABA [I8591 XI11 MOORE, 60

    law, 51). The authority of a I’rizci Court in tiiiie of war’, IS an illustration of t lw

    argument upon this part of the tithe, that the Supieiiie Court of Madras had I I O

    jurisdiction in a matter entirely of State policy. In tile time of war the nia\iiri

    “ znter amzu silent leges,” would apply in a Prize Court. That Court is estalilislied

    I)y Royal Commission; its authority is special, but as affecting the objectb of i t .

    universal : therefore, if a seizure be made of ail enemy’s ship, though \? rongfully,

    no action can be maintained against the Governnient, o r any of the partieb coil-

    wined in such seizure, in a Municipal Court : resort must be liad to the Prim Court.

    which is the only Court having authority delegated from the Sovereign power to

    t ry such a question. This is distinctly laid down by Lord Mansfield in the cases

    of Le Chus v. Eden (Doug. 59i), and 1,iiidu v. Rodney (Ib. 313, n.), and has bee11

    recognized and admitted by this Court in Blphinstone TT. Bedi,ePchurltd (I Knapp’\

    l’.C. Cases, 316). As regards the question tliat no suit \$ill lie against tlie Easi

    India Conipany for acts done hy them as a Sovereign power 111 India, tlie case\ of

    Moodalay v. T h e East I n d i a Company (1 Bro. C.C. 469), The ;lTc1hob o t A i r o f T .

    The Erist Indza [SO] C o m p a n y (4 Bro. C.C. 180), decided in the Court of Cliauc

    in England, are conclusive. So in Tandy v. The Earl of Westmorelund (27 State

    Trials, 1246), the official acts of the Lord Lieutenant of Ireland were considered

    acts of State, and not within the cognizance of the Municipal jurisdiction. T?/c

    b u k r of Brrcmsir~icl v. T h e h k y of /la?aoi PI’ (6 Bear. 1 ; S.C. 2 H.L. Cases, 1). i i

    an authority to show that a Sovereign Prince, residerit in hi6 kiiigdom, altliougli a

    peer of the realm, is exempt from the jurisdiction of the Court of Chancery for act.

    of State done by him in Hanover. The same policy lias been applied to Governor\

    of Colonies. I n iWostyn v. Fabi.igas (Cowp. 161), Lord Mansfield laid i t down that

    no Goveriior of a Colony could be sued while lie is exercising tlie functioiis of I

    Governor. This case, i t is true, has been in home degree shaken by the decision in

    Hill v. Biyge (3 Moore’s P.C. Cases, 465). That was an action of debt brought upon

    a contract entered into by the Defendant before he became Governor, and it was

    held that upon such a contract being utterly unconnected with hie political

    character of Governor he was liable to Lie sued in tlie Colony of wliicli lie was

    Governor. Cnmeron v. Kyte (3 Knapp’s P.C. Cases, 333), relied upon by the

    Court below, has nothing to do with the. case. There tlie Governor exceeded the

    authority conferred upon him by his commission.

    Thirdly. The late Rajah was, as regards this suit, an absolute Sovereign, and

    tlie decree of the Court below erroneously proceeds on the supposition of tliere being,

    in point of law, a distinction between the public arid private property of an

    absolute Sovereign. In Z’hr Advocate-GenerciT [SI] of

    Bombay v. Amercliund (1 Knapp’n P.C. Cases, 329 n.), Lord Tenterden puts tlie

    very question now in .dispute. He asks, “What is the distinction between tlie

    public and private property of an absolute Sovereign? ” and says, “ IWien you are

    speaking of the property of an absolute Sovereign, tliere is no pretence for

    drawing such a distinctioii : the whole of i t belongs to him as Sovereign, and he inay

    dispose of it for his public or private purposes in whatever way he may think

    proper.” Lord Broughani in The Lord Advocate v. Lord Dunylas (9 C1. and Fin.,

    211) says, “ I must beg to enter my protest against the distinction which has been

    taken in arguing this case, as to the prerogatives of the Crown being different,

    where the Crown is supposed to be dealing with what is called its private and

    individual property and public properly. The prerogative of the Crown is precisely

    the same as regards what is called the property of the Sovereign, and the property

    of tlie public. It IS only within the last half-century that any private property

    has been acknowledged to exist in the Crown a t all. All property of the Crown 1s

    held for public purposes, and is Crown property; it is public property which the

    Crown administers for the maintenance of the State.” Comyn’s Dig., tit.

    “Praerogative,” D. 64, supports thiR view. The Rajah of Tanjore was by the

    Treaties of 1793 and 1799, an absolute Sovereign in the fort of Tanjore; he had

    there the power of life and death: a s absolute Sovereign, he could, therefore, have

    no private property, distinct from State property. By the Hindoo law in the case

    of legalities like this Raj, the succession is eiempted from the ordinary lam of

    distribution, as the Raj goes to a single heir, Strange’s ‘‘ Hindu Law,” vol. i. p. 209 ;

    ill, “01. ii., [62] App. p. 328-9 (Edit. 1830). Colebrooke’s “Dig. of Hindu Law.“

    2 ;I

    No such distinction exists.

    XI11 MOORE, 63

    vol. i. p. 126 ; ib. ii. 122. I t is asked, then, whether there is any difference between

    an Enqlish Sovereign before the Statute, 39th and 40th Geo. III., c. 88, and a Hinduo

    Sovereigri, as to the right of private property? No evidence is adduced upon this

    poiiit, and the onits uiidoubtedly lies upon the Respondent to establish that there

    exists such difference.

    Lastly, the decree proceeds on the footing of the Plaintiff, as senior widow, being

    entitled to administer the private estate of the late Rajah. Now, there is nothing

    in the relations between the Respondent and the East India Company to sustain a

    suit in equity. There is no privity of interest between them such as could sustain

    a suit. The remedy, if any wrong had been cornniitted, would have been at law

    by an action of trespass, in trover, or detinue. T h e East f r ~ G a Company V.

    ~ ~ ~ t J ~ ~ i ? ~ b ~ ~ ~ ~ ~ e e ~ ~ ~ ~ ~ ~ ~ i ~ ~~~~~~~e~~~ ( 'i Moore's P.C. Cases, 482), Spooaer v.

    Juddoo (6 Moore's P.C. Cases, 257). Again, the Respondent asks for an account

    when no complexity of accounts exists. Poley v. Rill ( 2 H.L. Cases, 28), Flukey v.

    l'uylor (3 Drewry, 183), establish the proposition, that if the accounts are not cont-

    plicated t h y are the subject of an action, not of a Bill i n Chancery. If there

    xas no remedy in law or equity, a petition of right would be the proper course.

    But if a suit like the present could be sustained, the only proper decree would have

    been the usual decree for the ~ d i ~ i n i s t r a t i o ~ i f the estate. There should have

    been first a reference to the Master to inquire whether the deceased Rajah lrad airy

    i)ri-[63]-vate property ; aiid secondly, that the East India Company should render

    an account of the property so found t o be private. Such a course lias not been

    pursued in this case. Upon all therse grounds, therefore, we submit, this decree

    cannot be sustained.

    Tlie Attorriey-General (Sir Richard Bethell) (a) and Mr. Ayrfxm for the Re-

    spondent,-It will be necessary in the first place to ascertain the t rue sZetus of the

    East India Company, in order to see whether they are not amenable to the jurisdic-

    tion of the Suprenie Court of Nadras, and accountable before that Court for the

    n roiigful acts cornplained of. Our contention is, that the East India Company did not

    stand in tlie position of a Sovereign power ; they were only a corporation endowed,

    it is true, with considerable franchises and prerogatives, but by legislative enactments

    wade accountable for their acts. Sovereignty implies the exercise of absolute

    un~oritrollable power, without any q ~ ~ a l i ~ c a t i o n . How then could the East India

    Cornpaiiy be said to possess the Sovereign power if they a re compellable to justify

    their acts, and to show that what they did it ~ ~ c v n s j within their power ? The acts we

    complain of were arbitrary acts, and can be brought in question before the ordinary

    legal Tribunals. They were iiot done in virtue of Treaties or j u r e belli. The account

    gilreri by the Dcfendants in their answer is, that the [64] annexation of the Raj of

    Tarijorei aiid the taking possession of the p ropr ty was not an act of State, but that

    the Raj and property lapsed to the Goverrirnent ; and that, therefore, the East India

    Coii~patly as the ~~~~~1~~~ kaeres, took possession as bona ~ ~ ~ u ~ ~ ~ ~ i ~ . Now, it can only

    I= ~ p o l z the Iiypothesis that the Corripany has the same right towards the State of

    Tanjsre that the Queen of England has with regard to heereditas jaeens, that they

    could so claim the private property. Such a pretension however i s preposterous.

    For i t is apparent from the letter o€ Mr. Forbea o f the 17th of October, 1856, that the

    seizure mi.s not intended to include, o r was in exercise 0-f any right the East India

    Cornpatiy might have over the private property of the Rajah, whatever they might

    claim to have over tlie Rajah's State property, for the iiistruction is, that" all pr ivak

    property would be scrupulously respected." Indeed, no authority for such a seizure

    This fact is an adniission

    that the East India Conipany would not interfere with the rights of the menibers of

    the Rajah's family to his private property. The Respondent as the senior widow

    was the proper party to sue, as well for an account of property of her own, which was

    unjustly seized and tlieii was in the East India Cornpariy's possession, as of heir

    husband's private property. As the East India Company got possession of the

    (.) The Attorney-General (Sir Richard Bethell) had been consulted on behalf of

    the Respondent h f o r e his appointnient to the office of Attorney-General, and it was

    arrallged that S i r Hugh Cairns, the late Solicitor-General, should at. the hearing,

    conduct the ease of the Appellant.

    24

    ~ ~ C R ~ ~ ~ ~ R ~ OF STATE FOR INDIA 0. K. B. YAKABA f1859-J

    ever delegated t o Mr. Forhes by tho Government.

    SECRETARY OF STATE FOR IXDIA ZI. K. B. SAHABA E18593 XI11 NIOORE, 66

    property by the unauthorized act of Mr. Forbes, no protection can be claiined by

    them on the ground of State policy, nor are they exempt from the jurisdiction of

    the ~ u n i e ~ p a l Courts for the c o r n i ~ ~ i ~ i o n of such a iTrongfu1 act. B?&roiz v. Bem&a?i

    ( 2 Exch, Rep. 167) does not, apply. That was an action for [65] damages by reason

    of the Defendant, an ofticer in the Englisli I I B V ~ , destroying slave baracoons. The

    English Governmelit, it appeared, adopted his acts as having been done by tlieir

    autiiority, which the Court held equivalent to prior instructions; h i n g an act of

    State, the Crown was alone responsible, and therefore, n o action would lie against the

    Defendant. Nut here there is, in truth, no act of

    State, but a M rongful seizure by the East India Company, who are bound to submit

    to an inquiry and to account for their acts. The Sawab of Surat’s case (see 9 Moore’s

    P.C. Cases, 88) was under a Treaty nltnost 27~ s s i t m s ue7 his with the Treaties in

    question. ted the Nawab’s property among

    his heirs in a certain nianner, provided by a special Act of the Legislature of India,

    No. SVIII. of 1848. It would be a11 act of iiijustice to say the Respondent has 110

    remedy. l r t this country, if the Crown took possession of property, although a

    Bill could not be filed in the Court of Chancery, yet a petition of right would issue

    at ttie instance of the subject aggrieved. The ~ e f e n d a n t s do not frame their

    answer as if the seizure had been made in exercise of a Sovereign power, but they

    justify tlie taking under an asserted legal title, alleging that the property lapsed

    to them. Kow, we contend, t.hat the East India Company is only a corporation

    created by Charters and Acts of Parliament, and that they have not the Sovereign

    power in India. The Sorereign power as exercised in India is alone vested in the

    Governor-General and Council. The Governor-General we admit is exempted from

    the jurisdiction of the Queen’s Courts in India for acts done relating to State or

    [@I public polioy, but the East India CompaI~y, we submit, like any other British

    subjects, are liable to the jurisdiction of the Court.

    It will IE necessary to establish thia proposition to review the Charters and

    Acts of Parliament affecting the East India Coiiipanp. The Charter of King Charles

    the First, of 1661, authorizes the East India Coinpany to export warlike stares, arid

    niake pence arid war with native Pririces within the Limits of their trade. The

    Charter of 1683, confer8 similar powers : but there tlie Crown reserves the Sowxeigu

    rights wer the forts in India, aizd the power of making peace and war wlien it

    shall thinlc fit to interpos the Royal authority. Kow, we submit, that the Charter

    of 1661 was absolutely null antd void, as tlw power of making war and peace are

    admitted by all Jurists to be an incol1lmuriic:tble prerogative. By the Charter of

    Will. III., of 1698, the powers of the East India Company are restricted t o raising

    forces to defend the forts; but all Sovereigii rights are again reserved, and amoripst

    them, the power of establishing Courtxj of Judicature. The Statute, 13th Gen. III.,

    e. 63, puts the question of the u n d o u ~ ) ~ ~ S ~ v e r e i ~ t y of the, Crown in India trnyond

    all doubt. This is the first legislative enac t~e i i t that introduced a particular

    provision for the Sovereign ~ d n i i n ~ s t r a t i ~ n of the dominions i n the East Indies

    that liad been acquired by the Company.. By swtion 7, such Sove re i s riglits are

    vested in the Governor-General in, whom all the civil and military pox-er is vested,

    wlio i s really the ovlly representative of the Crown in India, and not the East India

    Coiiiparty, as claimed by the A p ~ l l ~ I i t , . His povers are defined in section 9 ; and

    section 13 reserves the right of the E671 Crown to erect a Supreme Court of Judi-

    cature at Fort William, to whom. the, ~overiior-General and Council are iriade

    amenable by the 15th section, in cases of treasoii o r felony ; and also, by the 39th

    section, for any crime, misdemeanour, or offence, to the Court of King’s Bench in

    England. The Statute, 19th Geo. III., e. 61, sec. 5, renewed the appointment of

    the (:orernor-General for five years: this office was continued by the 20th Geo.

    III., c. 61, sec. 5, Statute, 21st Gen. III., c . 65, sec. 8, for the first time gave the

    proprietors in the stwk a title to share in the Company’s territorial acquisitions.

    If, tlien, the East India Company had done the act con~plairied of shortly after the

    passing of this Statute, and, tlierefore, for the benefit of their proprietors, how

    could it, be said that they did it in virtue of a Sovereign p v e r created by- that Act ?

    By thc Statute, 33rd Gen. 111.. c. 52, sec. 9, the Board of Control have power giveii

    them to superintend all concerizs relating to the civil or military Government or the

    revenue in the East Indies. Now, we insist, that the Board of Control has no greater

    25

    So in the case of The C n r o r w .

    The G o v e r I ~ ~ ~ ~ e n t in t;bata case distr

    XI11 MOORE, 68

    power tliaii the East India Company, and, therefore, the creation of that Board

    uannot be said to invest the Company with any new or increased prerogative&.

    Sections 40 and 41 empowered the Governor-General at Fort William to superintend

    the Presidencies of Madras and Bomhay, if not repugnant to orders from England;

    and the 42nd section prohibits the Governor-General in Council from declaring

    war, except in a case of emergency, without the coment of the Court of Directors

    and the Board of Control. Statute, 37th Geo. III., c . 142, empowers the Crown to

    erect Courts of Judicature [68] at Madras and Bombay; and section 10 exempts

    the Governor or Council of Madras o r Bombay froni the jurisdiction of the Courts,

    except for treason or felony. Now, this proviso would be unnecessary if, as claimed

    Iiy the Appellant, the East India Company had the actual Sovereignty. So again

    wider Statute 53rd ( : C O . III., c. 15.5, sec. 123, provision is made that the general

    iwue may be pleaded iii actions or suits brought agaiiist the East India Company

    or their agents for acts committed by them in arresting persons not authorized to

    reside or traffic in the East Indies. By Statute, 3rd and 4th Will. IV., c. 85, a further

    arrangement is made with the East India Company for the goveiirrrieiit of Itidia

    for a limited period. Section 10 expressly enacts, that the sanie remedy by pro-

    <,eedings, legal o r equitable, is to be had against the East. India Company, and their

    property is to be subject to execution. By section 39, the whole power for the

    government of India is vested in ‘‘ The Governor-General of India in Council.”

    The authorities cited by the Appellant, Doe d. AYeebkristo v. The East India Company

    (10 Moore’s P.C. Cases, 140), The Bank of Bengd v. The East India Company

    (Rignell’s Reps. 118), T h r East India Company v. Xuthurnhaduo Veeraswamy

    Jloodelty (7 Moore’s P.C. Cases, 482), to sustain their proposition that a Bill in

    Equity was not the proper reniedy, shows that the East India Company are generally

    liable to the jurisdiction of the Courts in India; and the1 question, then, is reduced

    to this siniple point, whether what they have done is an act of State ? which we con-

    tend it was not.

    Secondly. In any circumstances, the East India Company, as successors to the

    deceased Rajah, suc-[69]-ceeded only to the State property attached to the Raj, and

    not to the private property of the late Rajah. He was at the time of his death

    eirtitled, as of his own right by the Hindoo law, to private property, consisting of real

    estate, cash, jewels, horses, etc., distinct froni the rights appertainling to the Raj.

    He was of the Soodra caste, and had power by the Hindoo law to dispose of his private

    property, distinct froin the Raj. Strange’s “ Hindu Law,” vol. i. p. 209 (Edit. 1830),

    rlearly so treats this point. He lays i t down that ‘‘ the effects and private estate of a

    Sovereign, like those of any ordinary individual, are in common, and distributable

    among all the sons.” That is an authority that a Hindoo Sovereign can have private

    property distinct from State property. Allen, “ On the Royal Prerogative,” p. 143,

    says, that “ the ancient Anglo-Saxon Kings had private estates which did not merge

    in the Crown, but were divisible by Will, gift, or sale.” So by international law,

    as appears from Puffmdorf, who, referring to Grotius, points out the digtinction,

    and laps i t down that the income may belong to the Sovereign, and be dealt with by

    hiin differently from the corpus of the property which go% to the State (a). In

    modern times the same right has been recognized. Ryves v. The Duke of Wellington

    (9 Bew. 579) was a case in which a legatee filed a Bill against the executor of George

    the Fourth, claiming under the Will of George the Third, with respect to a bequmt

    iiiade by that Monarch of his private property, and the Court of Chancery repu-

    [Tol-diated the jurisdiction of the Court on the sole ground, that the Will had not

    been proved in the Prerogative Court. The casea relating to the exemption of a

    Governor of a Colony, relied upon by the Appellant, do not apply. Cameron v. Kyte

    (3 Knapp’s P.C. Cases, 332) was confined to the single point of the power of the

    Governor of a Colony, and it was held to be fettered by the terms of the Governor’s

    commission from the Crown. H f U v. Bigge (3 Moore’s P.C. Cases, 465) is in our

    favour, as it determined that the Civil Court in the Colony had jurisdiction to

    eiitertain an action of debt brought against the Governor while in office in the

    See also The Att.-

    Grtz. v. Weeden (Parker’s Rep. 267), where i t was determined that choses in action

    belonging to an enemy are foifeited to the Crown.

    26

    SECRETARY OF STATE FOR INDIA V. K. B. SAHABA [1859]

    ( a ) B. viii. c. 6, sections 22 and 23. Gro. B. iii. c. 9 and 16.

    ~~~~~T~~~ OP STATE FOR INDXA 'U. K. B+ SAHASA [I8591 Xxll ~ ~ R ~ , ?I

    Colony+ ~~~~e~~ v. floE (Cowp. 204) was aa action brought agt~inst an oEcm of

    the Govern~en t in Grenada, for &e ~ ~ u r p o ~ of trying the ~uest ion whether the

    King2 Iia.aaring promised tile ~ ~ ~ a ~ ~ t a n ~ s of Grenada a lcpcal hgida ture , and h a v ~ n ~

    by his coKn~is~ion to the Governor aut.~orized the convocation of an A s s e ~ ~ ~ I y , couftf

    a f t~rwards of his own accord impose times. Lastly. The case of Y'he East ~~~~~~

    ~~~~~~~~~ Y. Sged A& (7 Moore's Ind, App. Cases, 655) is d ~ ~ t ~ n ~ u ~ s h a ~ ~ e froirz &e

    present. The r e s~7~p t ion of the dughire 13y the Company, as the represeritative of

    the Crown, was under the authority of a Treaty made by them in that character wi th

    a native Prince. They had, under t,he Treaty, the same power as the former Pianabr.

    The r e su~p t ion related to the revenue, and, being a matter of State policy, the

    S u p r e ~ e Courb was properly held to have had no ~ u r i s d i c t ~ o ~ .

    Sir Hugh Cairns, Q.C., in reply*---The ~espondent e n d ~ a ~ o ~ ~ to support the

    decree appealed fr5m, upoa rounds which are a I ~ ~ a ~ o r i ~ § t ~ ~ [7%] ko those relied

    upon in the judgment of %he Court below. It is now urged that* the East India

    ~ ~ ~ ~ p a n y are mere traders, mho have a r r o ~ a t e ~ to themsel-F-es the rights of Sow-

    r ~ ~ ~ n t y , and that tbeir ~ s s u ~ ~ ~ t ~ ~ n was a mockery of t€m rights of the Crown. The

    a r ~ u ~ e ~ t on the other side goes to this extear, that the East frtdiiz ~ o ~ ~ a i ~ y , as

    a c o r ~ o r a t ~ o n , have certain powers exnanating f rom the Sovereign d ~ ~ e ~ a ~ ~ du them,

    but+ that the a& c o m p ~ ~ ~ n e d of i s , ? ~ ~ ~ ~ a +rlr,s the East India ~ ~ i ~ i p a n y ; as the Sow-

    reign power is only vested in the ~ ~ i v e r n o r - ~ e ~ ~ e ~ a l of India. Xow) the Court below

    treats the proceedings as being witbin the authority of the East India Cornpany, but

    denies what has been done by Mr. For;Les wit;li respect to the alleged private pro-

    perty tc, be an act of State. This argument proves too much, as everything m h i d t

    the East India Company did would be wrung; the a n n e ~ a t ~ o n of the Raj, the seizure

    of the public property, which are not ~ ~ ~ i ~ l ~ i n e ~ of, would also be ~ r o n ~ f ~ l .

    ~ o t ~ i ~ n ~ , however, can be m5re fal~ac~o~7s than this a r ~ ~ ~ ~ e i ~ t , as at the time -when

    the acts in ~ u ~ t ~ o ~ ~ took place. n ~ ~ ~ n g could be done in India in the shape of

    ~ o v e r n ~ ~ e n t , bu through the East India C o ~ ~ a ~ ~ y , and the Court of Directors under

    the supervis~on of the Board of -Cont+rol. Supposing, for the sake of the argument,

    it was conceded that i t is in the ernor or-~neral in Council that the Sovereign

    d e ~ e ~ a t ~ d po7-rer exists, we still have &lien his a u t h o r ~ ~ t i ~ ? e sanction and c o ~ ~ ~ r ~ ~ -

    Lion of a'll %he prooeedings taken by Mr. Farbes, But tfie t rue position of the Govern-

    ment of India i s this : The East India C o r ~ k ~ ~ ~ I ~ ~ have power given them by Charters

    arid Acta of ~ ~ r ~ i a n i e n t for the ~ ~ ~ ~ ~ e r n ~ ~ e ~ ~ t of India, and they deiogate t,host:

    povvers to the Governor-General as [?2] executive in India. The Statute, 2 l &

    Geo. SII., c, 63, was passed in consequence of the exorbitant exercise of power

    olainied by the Chief Justice, Si r Elijah Inipey, and that Statute not only exempts

    the (~over~~or.Ge~~era1 from r e s p o n ~ ~ ~ ~ ~ ~ ~ t y for anything he may do, but any QILC

    acting under h i s i ~ ~ t , r u c t i o ~ s who hall plead such ~ ~ ~ ~ t r ~ c ~ ~ o n ~ in a suit or actlair,

    Bere the ~ O ~ e r n o r - G e n ~ r a ~ has a~ i? t ioned wha t Mr. Forbes has done, and it tmwt,

    therefore, be treated as his a&. The principle of I e ~ ~ s ~ a t ~ o ~ as to the Governor-

    General in India is this: Anterior to the creation of that ogee, or any officer in

    India as the executive Governor ~f India, the East India Company, as the eseeut*it-r.

    ~ v ~ r ~ ~ ~ e ~ ~ t upon the spot* had ~ ~ ~ T e r e ~ g ~ ~ p o ~ e r s eonferred an them from the Crown,

    hy Charters and by Acts of ~ a r ~ ~ a ~ i e n ~ ; a d , as they cod& not defegate those powers

    upon ordinary prineipiea af law to any one &e, it becaim. necessary to give large

    powers to an executive upon the spot, a.nd that was done by ~ a r ~ i a ~ i ~ n ~ r y a u ~ ~ t ~ r ~ t ~ ~

    The first Bet creating the ~ o v e r n o r - ~ ~ ~ e r a 1 was &he 13th Geo. BL, G. 63, a d the

    preamble shows the evil it intended to remedy in the c o ~ ~ s t ~ t u t ~ o n of the ~ o v e r 1 ~ ~ ~ ~

    h d y of the East India Company a t home, and the imperfection of the executive

    Government in India : the 7th and 8th Rectioiis appoint a Governor-General, and

    define h i s powcr~. The Statute relied upon by the I~esponde~t , the 53rd Geo. 111."

    (2. 155, sec. 123, ohiously c o i ~ t ~ ~ ~ ~ p ~ a t ~ ~ an act which canmt be e ~ ~ ~ ~ ~ ~ d e y ~ ~ an act, of

    State, done as a Sovereign poxwr, but as t ~ a ~ e r s , and one which the East India

    C o ~ n ~ a ~ y might be sued for, ~~~~~?~ v. T'he 8mt I d i a ~~~~~~~~~ (5 Bingh. N.C, 262).

    The Sttatute, 3rd and 4th WiE. IT., c, 58, puts this matter stfII 1733 clearer; that,

    Statute took away the exclusire trading rights of the Company, and left them their

    ~ o v e r e ~ g n rights ortfy for a fimited period. Sovereign powers have, uK~doubtedl~,

    been conferred upon the East India ~ o n ~ ~ ~ a ~ i ~ of levying war or ~~~~~~ peacer and

    iuakdking Treaties. These powers a3.e shown in the case of TAP iZ;,bo6 of drroc v.

    27

    XIXI ~(IOORE, 74 S ~ ~ R ~ T A R ~ OF sum FOR INDIA v. K. B, SAHABA [l859]

    TZie Em6 1 ~ & ~~~~~~~~~~ (4 Bro. C.C. Xt;O>, where it was decided %bat t

    nots the Nawah coriiplained of were acts of public policy and State, and that the

    Court of Chancery had no ~urisdiction to take c o g I ~ ~ ~ a I ~ e e of those acts. The E ~ s t

    I~zdur ~ ( ~ ~ ~ ~ ) ~ ~ ~ / I-. d C ; y ~ & Ally (7 Moore's Ind. App. Cases, 555) further illustrates this,

    nnd shows that the Sovereign power in the Carnatic has beconie vested in the East

    h d i a Company. If a Treaty was made between th is country and France, a com-

    plaint as to the inode in nrhicli it wag carried into effect could not be e ~ ~ ~ ~ ? r ~ a i ~ ~ e d

    i n a Municipal Court. The Respondent argues, that it has not h e n pleaded that

    what was done by Mr. Forbes was an act of State, an8 that the defence set up by

    the answer is, that the East India ~ o n ~ p a n y took the Raj and property by succession.

    Such is not the fact: the answer clearly treats it as an act of State, and negatives

    such a s s u ~ ~ ~ ~ ~ t i o 1 ~ that the seixure was a successioii a t law.

    KO d i s ~ ~ r ~ c t i o ~ ~ exists between public arid private property of an a~solu te Sovs

    reign. Y'hc A d i ~ o c c r t e - C T ' e ~ e l ~ of ~ o ~ ~ ~ ~ ~ r ~ ~ / v, Amemhtmd (1 Knapp's P.C. Cases,

    329, 11.) is conc~~ i s~ve iipon that point. The argun~ent by analogy to Sovereig~~s in

    this country who have made Wills and disposed of their prirate property does not

    apply. as it is not the case of an absolute ~ o v e r e i ~ n , like the Kaiah of Tanjore, but

    of Sovereigns whose powers by the constitution are limited. I n this coun tq the

    E741 hereditary seveiiues of the Crown have been made over by Act of ~ a r l ~ a i ~ ~ e n t

    to the Country, in c o n s ~ d e r a t ~ ( ~ ~ ~ of a c i d list during the life of the Sovereign ; and

    the 39th and Nth Geo. III., 0. 88, gave His Majesty, his heirs and successors, full

    Ilower of disposition by deed, or Will, of cy ta in real arid personal property, at the

    m u 6 time subjecting the private property- to the payment of private debts con-

    tracted during the Sovereign's l i f e t h e . There i s no allegatiori or evidence that

    tlrerc i s a custom in this Raj, or hy the Hiridoo Law, that upon the death of an

    absoltit*e Sovereign, no d ~ s ~ o s ~ t i ~ n be ng mad? by him during his lifetime, there

    could be a diL6sion made among ltis family of a certain kind of ~3ropert~y. Anothe~

    error in the decree i s , that it assumes. without proof, thata there was private pro-

    perty of the deceased Rajah.

    The (:ast\ stood over for consider~tioIi.

    Judgment, was K ~ O T delivered by

    The Right Hon. Lord ~ i ~ i ~ s d o ~ ~ ~ ~ {July 27. 1859).-This is an appeal from a

    c of the equity side of the Supreme Court of Judicature at. ~ a d r a s , hy wliieh

    i t was declared that the l ~ e s ~ ~ ~ ~ i d e ~ ~ t , the ~ l a i ~ ~ t ~ ~ in the suit loelow, as the eldest

    widow of Scvajce, late Rajah of Tanjore, who had died intestate, was entitled to

    irihrrit slid poq:sesu. as his heir and lcgal representative, his private and particular

    estate and efftvts, real arid personal, left by him at the time of h i s death, subject to

    the paymcnt and satisfaction thereout of the psesent debts, if any, of Semtjee, and

    to any legal claims and demands that alight exist agairist such private and par-

    ticular estate and effects; and the Court declared that the ~ e f e ~ ~ d a n t s . the East

    E751 Xiidin ~ o ~ n ~ ? a n y , were trustees for the Plaintiff for and in respect# of the private

    aird particular estate and effects, real and persorral, Left by Sevajee at the timc of

    his death, and possessed by them. their officers, servants, and ageuts, as in the Bill

    mentioned. The decree also proceeded to direct various accounts and inquiries

    founded upon these declaratious.

    Tn the ~ e r y able argument addressed to 1.1s a t the Bar, niany objection^ were

    iriade by the Appellant's Counsel to this decree ; but the main point taken. and that

    O I I .i\hirlt theis Lordships think that the case must be decided, was this, that the East

    Tirdia C'ompany, as trustees for the Crown, and under certain restrictions, are en)-

    ponered to act as a Sovereign State in transactions with other Sovereign States in

    India ; that the Rajah of Tanjore was an ~ ~ ~ d e p ~ r ~ d e n t Sov reign in India j that on

    liis death, in the year 1855, the East India Company, in the exercise of their Sove-

    reign power, t h o ~ i ~ h t fit, from motives of State, to seize the Raj of Tanjore and the

    whole of the property the subject of this suit, and did seize i t accord~ugly ; and that

    over an act $cl doiie, whether r i g ~ ~ t ~ u l l ~ or w r o n ~ f u l ~ ~ , no ~ u n i c ~ p a ~ Court has any

    J urisdiet ion.

    The general principle of l as was not,, as indeed it could not, wi th any colour of

    reason be disputed. The t ~ ~ a ~ ~ s a c ~ ~ o n s of independent States between each other

    are governed by other laws than those which ~ u n i e i p a l Courts a d ~ ~ n ~ s t e r : such

    28

    S ~ C R ~ ~ ~ ~ ~ op STATE FOR mxA~ v. K. B. SdHhBA p s s q xnx ~ o o ~ ~ , 76

    Courts have neither the m e a ~ ~ s of dec id i~~g what is right, nor the power of e n f o r c i r ~ ~

    any decision which they may make.

    But i t was conteiided on the part of the ~espoi~dent , that tliis case did not fall

    withixi the principle, for the f o ~ l o ~ ~ ~ n g reasons :-

    1761 First. Because, as it was said, she East India C o i i ~ ~ a n ~ did not stand in ~ h c

    position of an independent Sovereign; tfiat such powers of Sovereignty as ~ w r e

    erercised on behalf of the co r~pany were vested, riot in the Con~peiiy, but iu the

    ~ o v e r n [ ~ r - ~ e n e r a ~ and Council, who are ~ ~ o t e ~ t e d by legislative enactnients for

    what they may do in that character, Secondly, that the seizure in t h i s case did

    tiot take place by the exercise of a Sovereign power against another ~ n ~ e ~ e ~ ~ ~ e ~ i t

    power; $ut was a mere succession, by an asserted legal title, to property all<>.c?ged

    to have lapsed to the Company. And, thirdly, that there is a d ~ s t ~ n ~ t i o ~ betwceli

    tlte public and private property of tbhe Bajah, and that the Company never intended

    to exercise their Sovereign powers as to the latter, whatever they iuiglit do wi t l i

    respect to the former; that the C o ~ p a n ~ , therefore, are in possession of property

    by the una~ithor~zed act of their officers, for which no pro~ect~on can be claimed oil

    the grounds which would protect the public property fro111 the jurisdiction of the

    Court.

    011 the first point their ~ r d s h i p s are unable to discover any room for dcmbr.

    The careful and able review of the several Charters and Acts of ~ a r l ~ a ~ ~ e r ~ t bearing

    upon the subject which they had the adva~itage of bearing as the Bar, has satisfied

    them that the law, as it stood in the year 1839, is accurately stated in tile folloving

    passage in the judgment of Chief Justice Tindal in case of G~bson P. TIM East I d i a

    G r 0 ~ ~ z 7 ~ ~ (5 Uingh. N.C. 273), in wbich, after referring to x-arioua legislatiw enact-

    meiits, he observes that from these--" It i s rr~an~fest that the East India C o ~ n p a n ~ ~

    have been invested with powers and privileges of a twofold nature, perfectly dis-

    tinct from each other ; ['@'T] namely, powers to carry on trade as ~ n e r c ~ ~ e ~ ~ ~ , and

    (subject only to the prerogative of the crown, to be exercised by the Board of Coni-

    inissioners for the affairs of India) power to acquire and reLain and govern terri-

    tory, to raise and ~ ~ ~ a i ~ ~ ~ i ~ armed forces by sea and land, and to make p a t e or

    war with the Native powers of India."

    That acts done in the execution of these Sovereign powers were not subject tu

    the control of the ~ u n ~ e i p a l Courts, either of Xndia or Great ~ r ~ t , a ~ n , was s u ~ c ~ e ~ t ~ y

    e s t a ~ ~ ~ s h e d by the cases of The ~~~~~0~ oif Atwt v. Flte East India ~ ~ ~ 7 ~ ~ ~ ~ n ~ , in the

    Court of Chancery, in the year 1193 E4 Rro. C.C. 180], and T h e Errst fnd& ~ u ~ ~ ~ ( ~ ~ ~ ~ ~

    I-. Syed Ally [see 7 Moo. Ind. App. 5551, before the Privy Council in 1821,

    The s u b ~ e ~ u e n t S atute, 3rd and 4th Rill. IT., c. 215, in no degree d i ~ r ~ i ~ ~ i s ~ e ~

    t h e a u ~ , ~ ~ o r ~ t y of he East India ~ o ~ n p a ~ ~ y tu exercise$ on behalf of the Crowi of

    Great Britain, and subject to the control thereby provided, t ime delegated powers

    of S o v e ~ e ~ ~ K ~ t ~ y .

    The nex t ~ u e s t ~ o ~ is, what i s the real character of the act done in this case?

    Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of the

    doniixiioiis aud property of a n e ~ g h ~ u r ~ n ~ State, an act not affect in^ to justify

    itself on grounas of u n ~ c i p ~ L law? or was it, in whole or in part, a possess~on take11

    by the Crown utider colour of legal title of the property of the late Rajah of Taxrjore.

    in trust for those who, by law, might be entitled to it on the death of the last

    possessor Z If it tiiere the latter, t i le defence set up, of course, has no f o u ~ i ~ a ~ i o ~ ~ .

    It i s extre~ne~y d i ~ c u l t to discowr in these papers any ground of legal right, or1

    the part of the East India Company, or of.the &own of Great Britair*, to tile

    possess~on of t h i s Raj, or of any part of the pro-[78]-perty of the Rajah on his death ;

    and, indeed, the seizure was denounced by the ~ttorney-Gex~eral (who, from circuru-

    stances ~ x p ~ 8 ~ n ~ d to us a t the hearing, app~ared as Counsel for the ~esponder~t , and

    not in his official character for the ~ ~ p e ~ ~ a ~ t ) as a most violent and u n j u s t i ~ a ~ ~ e

    meas~I~e. The Rajah was 811 i ~ ~ e ~ e ~ d e I ~ t Sove re i~ I~ of t e r ~ ~ t o r ~ e s u ~ d o u b t e d l ~

    small, and bound by Treaties to a powerful n e j ~ ~ ~ ~ o u r , which left him, practica~~y,

    little power of free action ; but he did not hold his territory, such as it was, as a

    fief of the British Grown, or of the East India Company : nor does there appear to

    have beeri any pretenco for c ~ a ~ r n ~ ~ ~ it, o the death of the Rajah ~ ~ 7 i t h o ~ t a son, by

    any legal title either as an escheat. or as i',ona ~ ( ~ c ~ ~ ~ ~ ~ . It should seem, therefore,

    that the possession could hardly have been take13 upon any such grounds.

    29

    xm MOORE, 19 SECRETARY OF STATE FOR INDIA li. K. E. SAKABA Cl8591

    ~ccordingly, tlie ~ e f e n d a n t s in their answer, allega that on the death of the Kate

    Kajah, ‘‘ it was determined, as an act of State, by the Defendants and the British

    ~ o ~ e r ~ I m e n t ~ that the Raj and dignity of Bajah of Tanjore was extinct, and that

    the State of Tanjore had thereupon lapsed to the Defendants in trust for

    fIer Majesty; and it was thereupon also determined by the Defendants, as an act

    of State and government^ that the whole don~ii~ions and Sovereignty of the State of

    Tanjore, together with the property belonging thereto, should be assumed by the

    Defendants in trust for Her Majesty the Queen, and should become part of the

    British territories and dominions in India, in trust for Her Majesty. They then

    allege that the whole of the property which they have seized has been seized by

    virtue of their Sovereign rights on behalf of Her Majesty, and insist that E791 the

    Court has no au r i sd~c t~o~ i to inquire into the circuinstances of the seizure, or its

    justice with respect CO the whole or any part of the seizure.

    The facts, as they appear in the evidence, are these:-In Noveniber, 1855, the

    flajah died. The Go~rei.ninent of Madras, within which Presidency T a n j ~ r e is

    situated, communicated the Pact of his death to the Governor-General of India, and

    this fact, with the views of the Gover~~mexIt of Madras, and of the Governor-General

    in Council as to the steps which ought to be taken upon his death in regard to his

    doininion and property, was communicated to the Court of Directors in England.

    The letters in which these views were co I~~mu~~ica ted r not found a ~ ~ ~ o ~ g s t ~ tlie

    papers before us j hut it appears from the letter of the Court of Directors, dated the

    16th of April, 1856, that these Governments were of opinion, that the dignity of

    Rajah of Tanjore was estinct, and that they had taken possession, or were about to

    tske possession, of the dominions and property of the Bajah, and intended to deal

    with them in such manner as appeared to them to be just.

    The answer of the East India Company i s to the f ~ l l o w ~ n ~ efEect :-After advert-

    ing to a suggestion which had been made, to recognize one of the daughters of the

    deceased Rajah as his successor, they say :-“ 3. By no law or usage, hovever, has the

    d a u ~ ~ ~ t e r of a IIindoo Eajah any right of succ~ssion to the Raj, and it is entirely

    out of the question that we should create such a right for the sole purpose of per-

    petuating a titular Pri~icipality a t a great cost to the public revenue. 4. We agree

    in the u ~ ~ a ~ i n ~ o u s opinion of your ~ o v e r n ~ n e ~ ~ t , and the Government of Madras,

    that thc dignity of Rajah of Tanjore is estinct. 5. [a01 It only remains to express

    our cordial approbatio~i of the ~ntentions you express of treat in^ the widow,

    daughters, and dependants of the late Rajah with kindness and liberality. We shall,

    doubtless, receive, at an early period, from you or from the Madras Government, a

    report of the arrangements made for carrying these intentions into effect, 6. The

    Resident was very properly directed to continue all existing allowances until he

    could report fully on them to Governnient ; but to inform the recipients that Govern-

    ment were not to be considered as pledged to their cont~nuance.”

    B seems obvious from this letter that the East India Company intended to take

    possession of the dominions and property of the Rajah, as absolute lords and owners

    of it, and to treat any claims upon it of his widows, and relations, and depend an^,

    not as rights to be dealt with upon legal principles, but as appeals to the considera-

    tion and liberality of the Company.

    The further proceedings were of the same character.

    On the 10th of July, 1856, tlre Gevernment of Madras wrote to the Governor-

    General i ~ t Council, and after giving an account of different portions of the pro-

    perty of the late Rajah, and pointing out various difliculties and questions which

    might arise out of it, they suggested that some person should be specially sent as a

    Commissioner to T’anjore, who should be “ directed to investigate and report upon

    the various ~ ~ n p o r t a ~ ~ t questions above enumerated, and any others that may h e r e

    after occur, to thgs Government, as demanding inquiry in connection with the

    general subject.”

    By a letter of the 8th of Septenrker, 1856, the f8lJ Go~ernor-General in Council

    approves of the suggestion of appointing a Co~iimissioner, and of tile selwtion of

    Mr. Forbee for the purpose. He points out, certain niatters; ~ n ~ o n ~ s t others, the

    abolition o f the Rajah’s Courts, which he leaves to the disposal of the Government

    of Madras. “ But the mode in which it inay be proposed to deal with the Rajafi’s

    debts, and with the State jewels, library, and armoury, should be reported to the

    30

    SECRETARY OF STATE POR INDIA ‘U. K. B. SAHABA [1859] xII1: MOORE, 82

    Gorerrior of India, before any measures are taken. as also the a p p o r t i o ~ i ~ ~ t e ~ ~ ~ of

    1?ensioxis and gratuities to the family and depeitdaiits of the Kajair. Upon the last

    point i t will be necessary to lay dovn rules by which the Goveruirieiit of Madmy

    should be guided.”

    Mr. Forbes was a c c o r d i n ~ ~ y appointed to discharge this duty, and tvritten in-

    structions for that purpose were given to him by the Gove~.xii~~ent of Madras, on the

    25th of September, 1856. He was directed not to make ally general announcemexlt

    of the orders of the Government of India ; but to possess the Durbar generally with

    the purport of those instructions, informing thein that it had been decided by the

    hoiiie authorities that the Raj of Tanjore had become extinct, but that all liberality

    would be shown to the menibers of the family, servants, and dependants. Be was

    also, should such caution appear called for, to warn them of the consequences that

    would certainly ensue from any faotious opposition to the policy that had been

    decided on in the case of the Tanjore Raj.

    Iii wliat manner Mr, Forbes executed the powers conferred upon him, appears irr

    his evidence and by the docunieiits proved in the cause.

    On tlie 29th of September, 1856, he caused an order to be iziads on the Sirketr.

    an offirer of the late [82] Kajah, directing him to make out a list of the property

    belonging to the Raj. No attention having been paid to this order, Mr. Forbes so011

    afterwards went Biniself to Tanjore, and took up his abode at the Resideiicy, and

    on the 17th of October, 1856, sent a letter to the Sirkele, in which he informs hiiii

    of his intention to take possession of the public property of the State for the British

    Governnient, and to place it in safe keeping. He informs the Sirkele that he

    intends to take charge of the public property within the fort, early the nest niorning,

    and to place i t iu charge of a detachinent of the British troops, and he requests that

    the Sirkele will meet him at the east gate of the fort a t half-past 5 o’clock, in coni-

    pany with the Murdeshuns of the Tashackdera, the arsenal, and the various other

    departments.

    On tile f o l l o ~ ~ r i n ~ morning, accordiii~ly, taking advantage, as he says, of the

    presence of the 25th Regiment of Infantry, fie goes to the palace. He takes posse?-

    sion of the property which is found in it. He has it placed in rooms, sealed wit11

    his seal, and stations sentries at the different doors.

    It is clear from Mr. Forbes’s report to the Madras Government of what took place

    011 the occasion, that though no resistaiice was offered by the faniily of tire Itajali,

    or the inhabitants of the fort, to the seizure of the Raj, and of the palace aiid pro-

    perty of the Rajah, it was regarded on both sides as a mere act of power not resisted.

    because resistance would have been vain. “ Much sorrow,” he says, ‘‘ was expressed.

    and much grief was shown; b u t all subiriitted a t once to the authority of the Gowril-

    ment, arid placed themselves in its hands.”

    It i s by these acts of Xlr. Forbes that the East [a] India Conipany is iri pomcs-

    sion of whatever property it holds now claimed by the Respondent. The acts of

    Yr. F o r k were approved by the Governor of Madras by a minute, dated the 21st

    of October, 1856 ; and they are adopted and ratified by the East India Company in

    their answer in this suit.

    What property of the Rajah was within the authority given to Mr. Forbes,

    aiid what rnayi be the consequence of any seizure in excess of that authority, lye

    will consider under the next head ; but that the seizure was an exercise of Sovereign

    power effected a t tlie arbitrary discxetioii of the Conzpaiiy, by the aid of tnilitary

    force, can liardly admit of doubt.

    But then, i t is contended, that there is a distinction between the public and

    private property of a Hindoo Sovereign, and that although during his life, if he br

    a n absolute Monarch, he may dispose of all alike, yet on his death sorxte portiolis

    of his property, termed his private property, will go to one set of heirs, and tlrc

    Raj with that portion of the property which. i s called public, will go to the succeeding

    Ita j ab.

    It i s v0ry probable that this may be so ; the general rule of Hindoo inheritance

    is partibility, the succession of one heir, as in the case of a Raj, is the exception.

    But assuming this, if the Company, in the exercise of their Sovereign power, have

    thought fit to seize the whole property of tire late Rajah, private as well as public,

    does that circumstance give any jurisdiction over their acts to the Court a t Madras?

    32

    XIII MOORE, 84 SECRETARY OF STATE FOR INDIA v. K. B. SAHABA [1859]

    If the Court cannot inquire into the act a t all because it is a n act of State, how

    can it inquire into any part of it, or afford relief on the ground that the Sovereign

    E841 power has been esercibed to a n extent which ;?vlunicipal law will not sanction?

    It is said, however, that it was not the intention of the East India Company

    that the private property of the Rajah should be the subject of seizure, and it is

    oliserved in the judgment of the Court below, that the letter of Mr. Porbes to the

    dirkcle of the 17th of October, 1856, shows that he knew there was private

    property amongst that about to be seized; and that he expressly states that all

    property to which a claim can be established shall be restored to its owner.

    But, i t appears to their Lordships, that in this passage, the Chief Justice has not

    quite accurately collected the meaning of Mr. Forbes’s letter ; the distinction there

    iiiade hetween private and public property seems to apply, not to property of the

    Rajah, but to property which might ?M scizad by the officers as in the possession

    of, or a ~ ~ ~ a ~ . ~ n t l y belonging to, the Rajah, while in fact it belonged to, or was

    subject to, the claims of other persons. All claims which might be advanced to anp

    part of the property seized, by institutions or individuals, were to be carefully

    investigated, and all to which a claim might be substantiated would be restored

    to the owner.

    But, whatever may be the meaning of this letter, it affords no argument in

    favour of the judgment of the Court ; but rather an argument against it. It shows

    that the Government intended to seize all the property, which actually was seized,

    whether public or private, subject to an assurance that all which, upon investi-

    gation, should be found to have been improperly seized, would be restored. But,

    even with respect to property not belonging to the Rajah, it is difficult to [85]

    suppose that the Government intended to give a legal right of redress to those

    who niight think themselves wronged, and to Rubmit the conduct of their officers,

    111 the esecution of a political measure, to the judgment of a legal tribunal. They

    iiitended only to declare the course which a sense of justice and humanity would

    induce them to adopt.

    With respect to the property of the Kajah, whether public or private, it is clear

    that the Government. intended to seize the whole, for the purposes which they had in

    riew required the application of the whole. They declared their intention to niake

    11rovision for the payment of his debts, for the proper maintenance of his widows,

    h i s daughters, his relations and dependants ; but they intended to do this according

    i o their own notions of what was just and reasonable, and not according to any

    rules of law to be enforced against them by their own Courts. In the letter already

    referred to of the 8th of September, 1856, from the Secretary of the Govtmmnient

    in India to the Government of Madras, it is distinctly stated:--“ The relations

    whoiii the Rajah of Tanjore has left are in this position: they are without any

    riglits of inheritance; ” and i t then proceeds to enumerate those relations who are

    thus without any rights of inheritance, and mentions as the first amongst thein

    the Queen Dowager, the Respondent in this appeal ; and it proceeds to speak of all

    those relations as claimants upon the consideration of the Government, and to

    describe in what manner those claims are to be met. How is it possible, in the

    face of this declaration, to hold that it was the intention of the Government to

    recognize the right of inheritance of the Respondent, and to exclude from seizure,

    and to subject to process E861 of law, any portion of the property of the deceased

    Sovereign? If there had been any doubt upon the original intention of the

    Government, it has clearly ratified and adopted the acts of its agent, which accord-

    ing to the principle of the decision in Buron v. Demmaa, is equivalent to a previous

    authority.

    The result, in their Lordships’ opinion, is, that the property now claimed by the

    Kespondent has been seized by the British Government, acting as a Sovereign

    power, through its delegate the East India Company; and that the act so done,

    with its consequences, is an act of State over which the Supreme Court of Madras

    has no jurisdiction.

    Of the propriety or justice of that act, neither the Court below EO^ the Judicial

    Committee have the means of forming, or the right of expressing i f they had formed,

    any opinion. It may have been just or unjust, politic or i ~ ~ ~ o ~ i t i c , beneficial or

    injurious, taken as a whole, to those whose interests are agected. These are

    32

    REAL A S S ~ R A ~ C ~ CO. 'U. M'GILLIVRAY [ 18 593 XI11 MOOEE, 81

    considerations into which their Lordships cannot enter. It is sufficient to say that,

    even i f a wrong has been done, it is a wrong for which no MunicipaI Court of

    justice can afford a remedy.

    They must advise Her Majesty to reverse the decree conipla~ned of, and to

    dismiss the ~ ~ a i n t ~ ~ s Bill; but they will recommend that no costs should be given

    of the proceedings either in the Court below or in this appeal (U).

    [Mews' Dig. tit. INTERNATIONAL LAW, I. SOVEREIGN STATES, ETC., a.; tit.

    PRINCIPAL AND AGENT, I. A. 2. RATIFICATION. S.C. 7 Moo. Ind. A p p .

    476; 7 W.R. 722, See Doss v. Secretary of State f o r India, IS75, L.R. 19

    Eq. 534 ; Gramt v. Secretary of State for India, 1877, 2 C.P.D. 455 ; Musymnve

    v. Pulida, 1879, 5 A.C. 112; Cook v. Spriggs (1899), A.C. 572; Forrester v.

    Secretury of State for I n ~ ~ a , 1571-2, L.R. Ind. App. Suppl. 10; SCdui Bhagwcr.i;!

    Singl? v. Secretary of State for In&, 1874, L.R. 2 Ind. App. 35; 2fathzisrz

    t'nzmnba Boyi Su& v. Mathuwi Deepii.,7ba Boyi Saibn, 1895, L.R. 23 Ind.

    App. 28; Report of Transvaal Concession Conimission, F.1'. 1901, Cd. 623, p. 7.)

    __. . " _^. I. __ . . .-

    [87] ON APPEAL FROM THE COURT OF QIJEEtN'S BlENCH FOR LOWER

    CANADA.

    THE MONTREAL ASSURdNCE COMPANT,--Ap~ieZZunts; DAME ELIZABETH

    M ' G I L ~ I ~ R A Y , - ~ ~ ~ s p o ~ i ~ e n ~ -E [June 2 I and 22, 18591.

    The Montreal Assurance Company, was incorporated by the Canadian Ordinance,

    4th Vict., e. 37, and the Statute, 6th Vict., G. 22. By section 4 of the latter

    Statute, it was provided, that all policies of insurance should be subscribed

    by three Directors, countersigned by the Secretary and Manager, and under

    the seal of the Corporation. By a bye-law of the Company, made in con-

    formity with the powers conferred by the Ordinance and Statute, a resolu-

    tion t o the same effect was passed.

    Some time afterwards R.'s repre-

    sentative being dissatisfied with the security, applied for re-papment of tlio

    mortgage money, when H. agreed to insure the mortgaged praiiiises in a

    certain sum for the benefit of the mortgagee's representative. In pursuance

    of this arrangement, H. applied to the Montreal Assurance Company, through

    M., their Manager and agent, to insure tlie premises against fire. B. was

    unable to pay the preniiurn, and proposed to M. that the Company should

    take his p r o ~ i s s o r y note, payable in twelve days. This was agreed to by

    M., and a promissory note given, If. a t the same time promising to send *he

    policy. The particulars of the policy were entered in the books of tlie Coin-

    pany, but the note being dishonoured when due, the entry was erased. The

    policy wits never issued.

    Beld (reversing the judgment of the Court of Queen's Bench in Cartada) First,

    that the powers of M. as Manager, being public, must be taken to have been

    known to Ni., the insurer, and that the acts of M. in the trarrsartiorl were

    ~ i h - a w r e s and void, not being within the scope of his general authority as

    Manager, and, therefore, not binding upon the Montreal Assurance Conipany

    (a) The case of The Fast Imdia Company V. *Sg~d Ally, decided by tlie Privy

    Council in 1827, referred to in the arguments, mill be found in 7 Illoore's Indian

    Appeal Cases, p. 555. See also the case of ~S'p?*ro~l+ v. Tanajee Buo Baja Siyke, 2

    Borr. Born, Cases, 3.58, which was not cited ; and Gleig's Life of Sir Thonias Monro,

    vol. ii. p. 314.

    * Present : The Right Hon. The Lord Justice Knight Bruce, the Right Hon. Sir

    Edwitrd Ryaii, the Right Hon. The Lord dustice Tumer, and the Right Ho11. Sir

    dohn Coleridge.

    P.C. 1-s. 3 3 Y

    E. mortgaged a house in Lower Canada to R.

    Shortly afterwards the premises were burnt down.

    [ I 3 Moo. P.C. 122, 1233.

    - -- I - - -.-~ II_ - - - -_

    Use AI to get other relevant cases.

    Comments

    The Secretary of State for India v. Kamachee Boye Sahaba (United Kingdom)
    (Jul 9, 1859)