council in the legislature, but attack it. Why should they defend acts they have strenuously opposed in private, over which the law denies them authority?

§ 17. The position of executive councillors is equally difficult. Let us take a case which may easily and constantly occur. Suppose that the ministry includes two Hindus and one Moslem, and the executive council one European and one Moslem. Let us also suppose that some Moslem master or inspector may become the target of a Press agitation, and ministers may decide to remove him from his post. The executive council, believing the removal to be a grave act of injustice, may vainly endeavour to dissuade ministers. In virtue of the powers transferred to them, ministers persist and the man is removed. The government is attacked in the legislature by the Moslem minority. The Moslem who has been outvoted by his Hindu colleagues has then to decide whether to defend them or resign-a perfectly regular position-because the Hindu Ministers have to reckon with the chance of destroying their own ministry, and take the risk. The executive council, however, are called upon by the standing instructions of the Secretary of State "loyally to defend a decision made by the votes of two Hindu ministers, to which they object and over which they have no control. Cases will occur in which the members of the executive will feel that it is due to their own self-respect to resign, and no selfrespecting successors will be found to take their place. This will be the least objectionable alternative. For if, in practice, executive councillors are found to be willing to retain office and defend in public each and every decision which ministers may make, they will thereby destroy any efficacy the system might have as a training in responsible government. The governor can only use his power to overrule ministers in extreme cases; otherwise the representatives of the Secretary of State are to stand by them and justify in public every mistake and injustice against which they have vainly remonstrated in private.

to

§ 18. The whole object of this system should be that electors and legislators should learn to form right judgements of the acts for which ministers are answerable to them, and that ministers should feel that they are called upon justify their own acts, and so to learn the lesson which, of all others, needs to be learned in India-that of taking responsibility. This device of ordering British officials, against their reason and conscience, to defend each and

every act of the ministers, is one which undermines the ministers' sense of responsibility and throws dust in the eyes of electors. Debate has got to be something more than the art of keeping ministers in office by sophistries. When it loses all efficacy as a means for teaching men to discriminate between right and wrong, the spirit of freedom will perish. You will never nourish its faint beginnings into life by methods like these.

§ 19. It is no defence against these criticisms to say that I have taken out and quoted together the passages which insist on the unity of the government, without reference to qualifying phrases scattered about these paragraphs. "It is quite true that our plan involves some weakening of the unity of the executive. . . . It would be impossible to attain our object by a composite government so composed that all its members should be equally responsible for all subjects." And, again, "We are driven . . . to devising some dualism in the executive ".2 The matter is not mended by phrases like these. A circle cannot be squared by saying that we are going to make it a little rectangular. You can stand with either foot on opposite principles only while they remain on paper. The moment they are brought into operation the rider will find himself either clinging to one of them, or else on the ground. "The principle of unity within the Indian executives,' " which the authors of the Report recognized as established in 1894,3 is just as vital to their own proposals. As there must be unity in the executives responsible to the Secretary of State, so there must be unity in the ministries responsible to the electorates. You cannot by any process of smudging or blurring these responsibilities create any unity worth having between the two. In so far as you divide responsibility you destroy it. The whole secret of organization consists in making it clear what each agent is answerable for, and to whom. For this reason it is of the utmost importance that the forms employed should answer to the facts. In government every act should wear a label showing by whom it is taken and in obedience to whom. The acts of the executive council should show that they are taken in obedience to the Secretary of State, and those of ministers, that they are done in pursuance of the charge laid on them by electorates. Indian electors cannot be expected to carry the schedule of transferred powers in their heads. If the

1 Joint Report, § 222.

3 Ibid., § 34.

2 Ibid., § 223.

scheme is to have educational value, no pains should be spared to remind them which are the acts of government which issue from ministers responsible to themselves. They should issue as the acts of the governor taken on his ministers' advice; while those of the executive council should issue as the acts of the Governor-in-Council. Under this scheme, for no intelligible reason, they are all to issue as the acts of the Governor-in-Council. The form is to be used deliberately to conceal from the elector acts done by his own agent from those done by agents responsible to the Secretary of State. This expedient is calculated to defeat the main object for which the scheme is designed.1

Personally, I have no fear of its ever coming into operation. The pretence of unity between these two organs of government is too thin to deceive any one, and I cannot believe that executive councillors or ministers would be found to submit to a position so false.

§ 20. In its attempts to reconcile dualism with unity the language of the Report reminds one of the Athanasian Creed. But here we are dealing not with metaphysics but with practical affairs. The mask of unity does not hide the dualism behind. It has only prevented its artificers from seeing how the dangers of dualism could be overcome if they looked them in the face. Such dangers there are unquestionably. The authors of every federal constitution have had to face them. In such areas as New York, Ontario, Victoria, or the Transvaal they have had to provide for the co-existence of separate authorities side by side. But instead of masking the dualism, they emphasized it.

They never pretended that two governments answerable to different authorities could be one. All their care was spent in making it as clear as possible to each and all, which were the functions, resources, and agents assigned to each. In a word, their systems are designed to show who is answerable for doing whatever is done, and to whom each is answerable. When the introduction of the dual language crept into the schools of Ontario, it was not possible for any one to suggest that the federal government was in fault. The situation would have been far more dangerous if it had been. The whole responsibility clearly rested with the government of Ontario.

§ 21. The difficulty of drawing a clear line between the spheres of the two authorities is, of course, no slight one. A perfect demarcation is impossible. The authors of the 1 See Report of Joint Select Committee, § 7, clause 6.

Canadian constitution were not sufficiently careful in the matter, and were satisfied to leave a certain amount of overlapping. Forty years later Canadian experience was summed up in the one word of advice tersely given by Sir Wilfred Laurier to the South African Convention: "Beware the pitfall of concurrent jurisdiction "."

§ 22. The Feetham Committee faces this question of concurrent jurisdiction under the title of mixed subjects in par. 60, p. 36 of their Report. In that section a procedure appropriate to those subjects is carefully thought out. This procedure appears to assume that the executive council and the ministers will normally deliberate apart on matters which unquestionably belong to their respective spheres. I greatly hope that this will be so, and also that their decisions when promulgated will bear distinctive marks. On this subject, Section viii, p. 4 of the Memorandum of the Secretary of State on the Bill, speaks with tantalizing vagueness: 'The new provincial governments are to be of a composite character, and to contain both an official and a non-official, or popular element. On the official side they will be modelled on the existing governments of the Presidencies, which have "council governments". Under this system the government is carried on by a governor assisted by an executive council, and official acts are performed in the name of the "Governor-in-Council". On the popular side the new governments will consist of the governor and of ministers. . . . For the purpose of allotting to each section of this dual government its own sphere of duty the work of the provincial government will be divided into two parts: certain subjects, to be called "transferred subjects", will be administered by the governor acting with the ministers in charge of the subject, while other subjects, to be called "reserved subjects", will remain in charge of the Governorin-Council.'

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§ 23. The Committee will note that inverted commas are used to indicate the words Governor-in-Council' a formula. But when we come to the words the Governor acting with the minister in charge of the subject no inverted commas are inserted to indicate that this phrase is to be used to distinguish acts done by ministers under transferred powers, from those done by the Governor-in-Council. We are left to conjecture whether the dominating motive is not to be an attempt to mask the dualism inherent in the scheme, by representing the acts of ministers under the same label as those of the executive council, thus leaving

electors to think that executive councillors are responsible for acts of their own ministers. The dominating motive should be to leave the elector in no doubt whatever as to where the separate responsibility of every separate act rests. I hope the Committee will insist that all acts done in pursuance of transferred powers will be styled, 'The Governor on the advice of his ministers'.

§ 24. In this context I would urge that the legislature should sit under a different name, and, if possible, in a different building when dealing with the two different branches. I would keep the name 'legislative council' for reserved subjects, and call it the provincial assembly when dealing with transferred subjects. And I am strongly in favour of allowing the assembly to elect its own speaker. I would call him by that name. Do let us make up our minds whether we are in for dualism or not. If we are, then let the forms advertise the dualism instead of being used to mask it. Throughout I am thinking how to help the electorates forward on the road to self-government.

§ 25. It is only when the position of the executive council is accurately defined that we can properly consider the relations of ministers to each other and the governor. The untenable proposal in the Report that ministers should be treated as responsible not to the legislature but to their several constituencies, was obviously fatal to the principle of corporate responsibility. That proposal is now dropped. But clause 3 (3) still forbids corporate responsibility in terms. This prohibition is based, I believe, on reasons which have not come before the Committee. It is held by constitutional authorities that between crown colony and responsible government in the Colonies, each minister was held separately responsible to the governor and legislature. Therefore it is argued that India must of necessity tread the same path. But that path was a course of experiment by which men had still to discover the mechanism whereby responsible government can be worked. They had to learn by making mistakes, by testing contrivances which proved unworkable in practice. Responsible government was achieved by discarding them. What service do we render to India by forcing her by statute to make the same mistakes, to retry all the discarded contrivances, when the reasons why they failed are now so clear in the light of actual experience? We are in great danger of worshipping mere precedent, of reading the letter of history instead of understanding its spirit. Precedents are useful as a guide only