The Regulating Act 1773: The Government of Bengal

A casting voice is a second vote given to the presiding member to break a tie. It is the only special power the Act gives the Governor-General, and it is worth understanding exactly what it is worth. With five members present and three against him, a casting voice is worth nothing. It becomes decisive only when the Council is reduced to an even number and split.

That is not a technicality. Hastings was in a minority of one against Clavering, Monson and Francis from October 1774. Monson died in September 1776, leaving Hastings, Barwell, Clavering and Francis, an even number, and the casting voice made Hastings master of the Council for the first time. Clavering died in August 1777. Every event MU asks about in topic 1.2, from the trial of Nandkumar to the Cossijurah crisis, sits somewhere on that arithmetic.

Section 9: superintendence over Madras and Bombay

Section 9 gives the Governor-General and Council, or the major part of them, power of superintending and controlling the government and management of the Presidencies of Madras, Bombay and Bencoolen, so far that it shall not be lawful for any President and Council of those places to make any orders for commencing hostilities, or declaring or making war, against any Indian princes or powers, or for negotiating or concluding any treaty of peace or other treaty with them, without the consent and approbation of the Governor-General and Council first had and obtained, except in cases of such imminent necessity as would render it dangerous to postpone the hostilities.

This is the beginning of a central government for British India, and it is worth noticing how narrow it is. The control is over war and treaties, not over revenue, justice or ordinary administration. Madras and Bombay remained separate governments in everything else, and would remain so, with the central power growing by stages, until the Charter Act of 1833 made the Governor-General of Bengal the Governor-General of India.

Section 9 also required the subordinate Presidencies to correspond constantly and diligently with Bengal, transmitting an exact particular of all advices, intelligence and transactions coming to their knowledge relating to the government, commerce, revenues or interest of the Company.

Section 10: the four men, and the five years

Section 10 names them. Warren Hastings is to be the first Governor-General; Lieutenant-General John Clavering, the Honourable George Monson, Richard Barwell and Philip Francis are to be the four first Councillors. Each is to hold office for five years from his arrival at Fort William and taking upon himself the government, and is not removable in the meantime except by His Majesty, upon a representation made by the Court of Directors. After the five years, the power of nominating and removing the Governor-General and Council is vested in the Directors.

Naming the men in the statute was meant as a guarantee of independence, and in one sense it was: the Company could not simply recall a Councillor who displeased it. What Parliament did not foresee is that it also made the government of Bengal unalterable for five years even when it had ceased to function.

A worked example

It is November 1774. The Council of Fort William must decide whether to accept the accusation Maharaja Nandkumar has made against the Governor-General, that he has taken presents.

• Who decides? Under section 7 the government is vested in the Governor-General and Council; under section 8 the majority of those present decides.
• Count the votes. Hastings and Barwell on one side; Clavering, Monson and Francis on the other. Three to two.
• Does the casting voice help Hastings? No. It operates only on an equal division, and the division is three to two.
• Can Hastings dissolve the Council or remove a member? No. Section 10 fixes them for five years, removable only by His Majesty on a representation of the Directors.
• Result. The Council receives the accusation against its own President, over his objection, and proceeds to examine it. That is exactly what happened, and it is the beginning of the sequence that ends on the gallows in August 1775.

Now change one fact. Suppose Monson had died a year earlier. The Council is then Hastings, Barwell, Clavering, Francis: two against two, the casting voice operates, and the accusation is not received. The whole of Module I's most famous chapter turns on the arithmetic of section 8.

Distinctions worth having straight

What beginners get wrong

"The Regulating Act made the Governor-General the ruler of India." It made him the head of a five-member board for the Presidency of Fort William, with a limited superintendence over Madras and Bombay in war and treaties. The office of Governor-General of India dates from the Charter Act of 1833.

"The casting vote gave Hastings control of his Council." It gave him a second vote only when the Council was equally divided. For his first two years he was in a minority of three to two and the casting voice was worthless to him.

"Parliament appointed the Council to check the Governor-General." Parliament appointed them because it distrusted the Company's own patronage; the effect of naming them in the Act was to make the Council immovable, which is a different thing and turned out to be worse.

Limits and criticism

The government created by sections 7 to 10 had an internal contradiction that no amount of good faith could have cured. It made one man responsible in the eyes of Parliament for the government of three provinces and gave him one vote in five. It then fixed the five men in place for five years, so that a majority which would not work with its President could not be changed.

The Act of 1781 did not repair this. It was repaired only in 1786, when Parliament gave the Governor-General power to override his Council in matters affecting the safety, peace or interest of the empire, and that power is the ancestor of the Governor-General's special responsibilities in every later constitutional statute down to 1935.

Quick revision

• s.7: a Governor-General and four Councillors for Fort William; the whole civil and military government of the Presidency, and the territorial acquisitions and revenues of Bengal, Bihar and Orissa, vested in them.
• s.8: decision by the majority of those present; a casting voice to the Governor-General only on an equal division.
• s.9: superintendence and control over Madras, Bombay and Bencoolen in war and treaties only, plus a duty to correspond.
• s.10: Warren Hastings Governor-General; Clavering, Monson, Barwell, Francis the first Councillors; five years, removable only by His Majesty on the Directors' representation.
• Sections 11 and 12 are omitted from our reprint and nothing is claimed about them.

Test yourself

1. In whom did section 7 vest the government of Bengal, and of what exactly? In the Governor-General and Council of Fort William, of the whole civil and military government of the Presidency and of the ordering, management and government of the territorial acquisitions and revenues in Bengal, Bihar and Orissa while they remained in the Company's possession.

2. Explain the casting voice, and say why it did not help Warren Hastings until 1776. It is a second vote for the presiding member when the Council is equally divided. It did not help Hastings while Clavering, Monson and Francis outvoted him three to two, because there was no equal division. It became decisive after Monson's death in September 1776 left an even number.

3. What control did section 9 give Bengal over Madras and Bombay? Only over war and treaties: those Presidencies could not commence hostilities, declare or make war, or negotiate or conclude a treaty with any Indian prince or power without Bengal's consent, except in cases of imminent necessity. They also had to correspond and transmit intelligence.

4. What was the effect of naming the first Councillors in the Act itself? It secured them for five years against removal by the Company, which was intended to make them independent, and it also made the government of Bengal unchangeable for five years when its members would not work together.