--and "in order to carry the said stipulations into effect ;"* and the Preamble closes with the asseveration that it "shall be binding upon the contracting parties as long as the sun and moon shall endure."+

Two preliminary points of great importance come out very clearly in the terms of this Preamble. Firstly, although the Nizam is not a party to the Subsidiary Treaty with the Rajah, his equal action and interest in establishing the separate State of Mysore, are therein fully admitted ; the Subsidiary Treaty is concluded in order to carry out the stipulations of the Partition Treaty with the Nizam. Secondly, as the Treaty is stated to be perpetual," and to be of binding force on both parties "as long as the sun and moon shall endure," it is not a personal but a real Treaty ; and therefore, although the usual words, "his heirs and successors," are not appended to the Rajah's name, hereditary succession is effectually maintained.

The Treaty declares itself to be perpetual, and to be made for important public objects; it is therefore a real and not a personal Treaty. The Rajah of Mysore was certainly recognised by the terms of this Treaty, as the reigning Sovereign of Mysore, and an Ally of the British Government. The dignity of a reigning Sovereign is essentially hereditary in India, as in Europe. If the Rajah had been a person arbitrarily selected for this dignity by the East India Company alone, of its own good pleasure, as a reward for his services, or in consideration of his eminent personal qualifications, this Treaty collated with the Partition Treaty, would still have transmitted the sovereignty to his heirs. But it was not so: the Rajah's position is much stronger; he was selected by the two Allies, the East

* Appendix B.

+ Ibid.

"Treaties, properly so called, are either personal or real. They are personal, when their continuation in force depends on the person of the Sovereign (or his family), with whom they have been contracted. They are real, when their duration depends on the State, independently of the person who contracts. Ali Treaties made for a time specified, or for ever, are also real."—Law of Nations, translated from G. F. von Martens, London, 1803, p. 54. "Treaties,' says Vattel (book 11, chap. xii, § 187), "that are perpetual, and those made for a determinate time, are real; since their duration does not depend on the lives of the contracting parties." And Grotius points out that it is not necessary that the words "heirs and successors" "should be introduced in order to make the Treaty real.”—De Jure Belli et Pacis, lib. II, c. XV.

India Company and the Nizam, disposing of territories conquered by their united arms, to be the Sovereign of “ separate Government;" and he was expressly so selected as the "descendant of the ancient Rajahs of Mysore," as the representative of a royal family whose hereditary succession had been preserved for upwards of three centuries, which had only been excluded from power, during the military usurpation of Hyder and Tippoo, for the comparatively short space of thirty-eight years, and which had only been excluded from the representative sovereignty for the still shorter space of sixteen years. Lord Wellesley himself, while declaring that the ancient family could assert no absolute right; that the whole settlement must be based on the conquest by the Allies, and that "their cession must be the source of the Hindoo Prince's dominion,"* still always spoke of the Rajah's enthronement as a restoration, and alludes to "the antiquity of his legitimate title." And Lord William Bentinck, in his severe letter of the 7th September 1831, informing the Rajah that he was about to assume the management of Mysore, thus describes what took place after the fall of Seringapatam :-"Your Highness is well aware of the generosity displayed by the conquerors upon that occasion. Instead of availing themselves of the right of conquest, and of annexing the territories of Mysore to those of the Honourable Company and of the Nizam, the sovereignty was restored to the family of the ancient Rajahs of the country, who had taken no part in the contest, and your Highness was placed on the musnud."† And all the conditions of the Partition Treaty, providing for this restoration, and making the detailed allotment and cession of the provinces "to form the separate Government of Mysore," are also said to be binding upon "the heirs and successors of the contracting parties as long as the sun and moon shall endure."

The Partition Treaty, as I have stated in the last Chapter, divided the dominions ruled by Tippoo Sultan into three parts, and the Schedules attached to that Treaty define the respective acquisitions of the Honourable Company and the Nizam, and the limits of the Rajah's dominions. No

*Wellesley's Despatches, vol. ii, p. 26.

+ Appendix C.

Schedule is attached to the Subsidiary Treaty; the frontiers and extent of the Mysore State are not in any way indicated therein, except in the Preamble as "the territories specified in Schedule C, annexed to the said" (Partition) "Treaty," and in Article V, as "the territories ceded to him" (the Rajah,) "by the 5th Article of the Treaty of Mysore" (the Partition Treaty).* Thus, without a reference to the Partition Treaty with the Nizam, the representatives of the Rajah would never have known what districts were comprised in the Mysore country. Again, in Article XV of the Subsidiary Treaty, providing for subsequent exchanges of territory (which for convenient reference will be found entire in a note to this page†), allusion is made to “the districts declared by the Treaty of Mysore" (the Partition Treaty), "to belong respectively to the English Company Behauder and to his Highness;" so that the titles of the Company and the Rajah to their respective possessions are referred to the same document, the Partition Treaty. And, therefore, although the Rajah was not a party to the Partition Treaty, nor the Nizam to the Subsidiary Treaty, it is manifest that the one cannot be read without the other; that the two are inseparably bound up together; that the Rajah of Mysore is entitled to point equally to both Treaties in support of his sovereign rights.

All the conditions which were imposed upon the Rajah of Mysore by the Subsidiary Treaty of 1799, slightly modified by the additional Articles of 1807, may be concisely stated as follows:- He was to receive a military force furnished by the East India Company, for the defence and security of his dominions, and to pay the annual sum of seven lakhs of star pagodas (£245,000) as a Subsidy‡ (Article II); he was to maintain at all times fit for service, and ready

* Appendix B.

+ "xv. Whereas it may hereafter appear, that some of the districts declared by the Treaty of Mysore to belong respectively to the English Company Behauder and to his Highness are inconveniently situated, with a view to the proper connection of their respective lines of frontier, it is hereby stipulated between the contracting parties, that in all such cases they will proceed to such an adjustment, by means of exchanges or otherwise, as shall be best suited to the occasion."

In addition to this, the Rajah, by a subsequent arrangement, pays £5,000 per annum, as rent for the river island of Seringapatam, held in sovereignty by the British Government, making £250,000 per annum in all.

to serve with the Company's army, a body of 4,000 effective Horse (Additional Article I); to hold no communication or correspondence with any foreign State (Article VI); to admit no European into his service, or into his territories, without the consent of the Company (Article VII); to make a suitable provision for certain officers of rank in the service of Tippoo Sultan (Article XI): and lastly, Article XIV contains a declaration on behalf of the Rajah that he will "pay at all times the utmost attention to such advice as the Company's Government shall occasionally judge it necessary to offer to him, with a view to the economy of his finances, the better collection of his revenues, the administration of justice, the extension of commerce, the encouragement of trade, agriculture, and industry, or any other objects connected with the advancement of his Highness's interests, the happiness of his people, and the mutual welfare of both States." (Appendix B.)

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It is with reference to this last Article only that the Rajah has been most unfairly charged with an infraction of the Treaty, or in the words of the Calcutta epistle, with its 'flagrant and habitual violation." Every stipulation of that Treaty providing an equivalent in money and military aid for general protection, has always been fulfilled to the letter, and the British Government has thereby profited largely. The Rajah has never been accused of hostile or sinister intrigues against the dominant Power, either within or without his own territories. His Highness's hearty allegiance to British supremacy, his loyal demeanour, his beneficial influence and useful services during the crisis of rebellion, have been the recent subject of grateful acknowledgments by the Viceroy, the Secretary of State, and—it is understood--by the Queen herself. The slightest dereliction within this sphere of duty, might well be charged as an infraction of the Treaty. But the obligations of Article XIV must be placed in quite another category. In the first place, they do not relate to any promised advantages or service that could be improperly withheld from the British Government, and which the Rajah might be called upon, under penalty, to make good. They relate to “the mutual welfare of both States" in a general way, but more particularly to “the advancement of his Highness's interests,

and the happiness of his people,"-in short, to the welfare of the State of Mysore. This Article was meant to promote the good order and stability of the separate Government of Mysore, and was never intended to prove a trap, or to furnish a pretext for its destruction. The obligations are mutual, the dominant Power undertaking to offer good advice, the dependent Prince promising to pay the utmost attention to it. But the British Government could not possibly have the right of complaining that its advice was not followed, unless the Rajah displayed the most open and defiant contumacy, because it held the corrective remedy for the inattention or disobedience of the Mysore State in its own hands. The British Government having confined its controlling action to vague and loose reproof, and to the remonstrances of the Resident in particular cases; having neglected to make its advice efficacious by establishing general principles and substantive law; having neglected to make its advice authoritative by the imposition of ordinances, or even by the firm presentation of specific measures of reform, is completely debarred from accusing the Rajah of an infraction of the Treaty. With much more reason the Rajah of Mysore might accuse the British Government of infringing the Treaty, in not having pressed its good advice upon him at the proper time, and in the most effectual form.*

دو

The Subsidiary Treaty of 1799 is what is called by writers on public law “a Treaty of unequal alliance." Grotius says that in a Treaty of unequal alliance, "where the terms of the compact give a permanent precedence to one of the parties," where the greater share of power goes to the stronger,' "the King" (or State) "preserves his sovereignty." And "in unequal alliances the words command and obedience are sometimes used with reference to transactions between the superior and the inferior; but this does not refute what I have said." "The payment of money to the superior, as a consideration for protection, does not destroy sovereignty."+ And Wheaton says:-"Treaties of unequal alliance, guarantee, mediation, and protection, may

* As Sir Frederick Currie and Sir Henry Montgomery point out, ante, p. 16. + De Jure Belli et Pacis, Dr. Whewell's edition, 1853, lib. 1, chap. ii, pp. 152, 153, 157, 160.