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British India and its Dependencies :
Proceedings of the Royal Asiatic So-
ciety of Great Britain and Ireland.
pany's Ships for the Season.
JANUARY TO JUNE 1828.
&c. &c. &c.
THE CALCUTTA STAMP TAX. No measure of the Indian government has perhaps ever produced a stronger effect upon the public mind, at home as well as abroad, than the regulation imposing a stamp duty upon legal and commercial instruments at Calcutta, the inhabitants of which have hitherto enjoyed an exemption from this tax, although levied for some years past in the provinces. The degree of feverish excitement which prevails in the community of our eastern metropolis is kept alive by the apprehension that this measure is a political experiment, intended to try how far a system of taxation analogous to that at home can be introduced into our eastern settlements; and that; if carried, this tax will be the harbinger of a host of others. In compliance with our usual practice, of not suffering current political topics relating to India to pass by without notice, we shall, in a spirit of perfect freedom and impartiality, bestow a few cursory observations
upon the present measure. We are not inclined, and we think it totally unnecessary, to examine the arguments and positions of the petitioners against the tax and against the registering of the regulation in the Supreme Court. Our object will be to deal with the question in its simple original form; leaving the multitude of topics with which the ingenuity of lawyers has contrived to entangle it, to those who can find amusement in the solution of ideal difficulties.
The questions to be considered in this case are two; the legality and the expediency of the tax; that is, first, whether there is any power given by the British Parliament for its imposition; and, secondly, whether, supposing the power to exist, it has been judiciously exerted on this occasion.
The opposition to the stamp tax at Calcutta is grounded mainly upon its alleged illegality. It is asserted that no parliamentary authority exists by which such a tax can be imposed. There cannot be a stronger example of the imperfections inherent in human legislation than that such an argument can be urged in respect to an enactment so exceedingly clear and simple as the law upon this subject appears to us. The act of the 53d Geo. III., c. 155, upon Asiatic Journ. Vol. 25. No.145. B
which the authority is assumed to be founded, kus probably been diligently and attentively read by thousands of persons, and we do not think it likely that a single individual of the number ever put any other construction upon the words of the act which are now in dispute, than that put by the government, till the present question arose.
Thể 98th section of the act just quoted, gives authority to the local government of India to impose duties and taxes in the following terms:
And whereas it is expedient that the governments of the said Company established at Fort William, Fort Saint George, Bombay, and Prince of Wales Island respectively, should have authority to impose duties and taxes to be levied within the several towns of Calcutta and Madras, the town and island of Bombay and Prince of Wales Island, and also duties and taxes to be paid by persons subject to the jurisdictions of the Supreme Court of Judicature at Fort William in Bengal, the Supreme Court of Judicature at Madras, the court of the Recorder of Bombay, and the Court of Judicature at Prince of Wales Island respectively ; be it therefore enacted, that it shall and may be lawful to and for the Governor General in Council of Fort William in Bengal, and to and for the Governor in Council of Fort Saint George, and to and for the Governor in Council of Bombay, and to and for the Governor in Council of Prince of Wales Island, within the respective presidencies of Fort William, Fort Saint George, Bombay, and Prince of Wales Island, to impose all such duties of customs and other taxes, to be levied, raised, and paid within the said towns of Calcutta and Madras, the said town and island of Bombay and Prince of Wales Island, and upon and by all persons whomsoever, resident or being therein respectively, and in respect of all goods, wares, merchandizes, commodities and property whatsoever also being therein respectively; and also upon and by all persons whomsoever, whether British born or foreigners, resident or being in any country or place within the authority of the said governments respectively; and in respect of all goods, wares, merchandizes, commodities and pro perty whatsoever, being in any such country or place, in as full, large and ample man. ner as such Governor General in Council, or Governors in Council respectively, may now lawfully impose any duties or taxes to be levied, raised, or paid, upon or by any persons whomsoever, or in any place whatsoever, within the authority of the said governments respectively : provided always, that no imposition of any such duty or tax, or any increase of any such duty or tax, within the said towns of Calcutta or Madras, the said town and island of Bombay or Prince of Wales Island, shall be valid or effecţual, until the same shall have been sanctioned by the said Court of Directors, with the approbation of the said. Board of Commissioners, in manner herein-before prescribed respecting duties and taxes of export, import, and transit on goods, wares, or merchandize,
The 99th section gives to the local governments the power of making laws and regulations respecting such duties and taxes, and of imposing fines and forfeitures for non-payment thereof.
Now, it appears to us to be impossible that the power of taxing generally (subject to the control of the home government) could be conveyed to the Indian authorities in fuller and more explicit terms. They are authorized to impose duties of customs and“ other taxes” generally, not merely on goods; wares, merchandizes and commodities, but upon “property," a term of the most general and comprehensive import; and this power of taxing every description of property whatsoever is given “ in as full, "large, and ample manner as was then possessed in respect to." any duties or taxes to be levied, raised, or paid, upon or by any persons whomsoever, or in any place whatsoever, within the authority of the said governments respectively."
The attempt to refer this section to the 25th, and to construe them conjpintly, is a very poor expedient to get rid of the general and comprehensive
terms contained in the 98th section. The 25th section enacts that "no new or additional imposition of any duty or tax upon the export, import, or transit of any goods, wares, or merchandize whatsoever,” shall be valid until sanci tioned and approved by the Court of Directors and the Board of Control. Had these sections been correlative, in the sense contended for, they would have been expressed in the same terms, and would have referred directly or impliedły to each other.
Then the act of the 54th Geo. III. c. 105, passed to legalize certain duties imposed in India previous to the passing of the act of the 53d, or rather to remove all doubts as to their legality, is not expressed in the circumscribed language of the 25th section of the last recited act, but in the ample terms of the 98th section: all duties of customs and other taxes heretofore made or imposed upon all persons whomsoever resident in British India, and in respect to all goods, wares, merchandizes, commodities, and property whatsoever being therein, are confirmed, and to be deemed aš valid and effectual as made under the act of the 53d.
The limitations in the acts quoted, it will be observed, are imposed upon the local authorities in India, not upon the home government. The former are restrained from imposing taxes without the sanction of the Court of Directors and the Board of Control ; but this very restriction seems to imply an acknowledgment of unlimited right in the latter to impose taxes in Indiai It is a manifest absurdity to contend that the Court of Directors and the Board of Control, constituting the supreme home government, if desirous that any duty whatsoever should be imposed in India, can effect their object only with the consent of their own servants and by the authority of their own delegates. According to this principle, the local governor of a presidency is, in this respect at least, possessed of greater power than the authority by which all his power is conferred:
But it is said that it could not have been the intention of Parliament to entrust the Indian government with the power of unlimited taxation :- :—why not? The Company are treated by Parliament as the territorial sovereigns of India (saving the King's paramount rights) and they are invested by law with sundry powers belonging to kingly prerogative, as well as with that of sum, mary conviction and punishment; and in short, from the very nature of their character they must be the objects of large trust : is it then extraordinary that they should be permitted to exercise the undoubted right which belongs to a government without representative legislature, to tax their subjects, considering that this right is only granted for a limited period (the duration of their charter), and that it is incapable of exercise without the concurrence of his Majesty's executive government, and of course subject to the superintending control of Parliament? We think not; and it is à circumstance not calculated to disturb the tranquillity of our conviction, that lawyers, and those who are called upon to pay the tax, pretend to think differently.
The legal objection is, indeed, disposed of in so satisfactory a manner in the reply of the Vice-President in Council to the petition of the British and native inhabitants of Calcutta,* that we might have dispensed with any remarks upon this point. “The fair, natural and obvious interpretation of the words of the statute can only be, that any tax, which the necessities of the Indian government may compel it to levy on the inhabitants of the country
generally * See last- vol. pp. 409, 663.