Courts-Mayor's Court of 1726 and Supreme Court of 1774

BNS

Courts: Mayor’s Court of 1726 and Supreme Court of 1774 Mayor's Courts of 1726: The Mayor's Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. Each Corporation consisted of a Mayor (General meaning is the elected head of a city, town, or other municipality) and nine Aldermen, (General meaning is an elected member of a municipal council) out of whom the Mayor and seven Aldermen were to be the natural born subjects of the Crown and two Aldermen might be subjects of Friendly Prince or State. The first Mayor and Aldermen nominated in the Charter itself. Thereafter, the Mayor was to be elected annually by the previous Mayor and Aldermen. An Aldermen had to continue for life unless he left the town or was removed by the Governor in Council on a reasonable cause, though the latter’s decision was subject to an appeal to the King in Council. Vacancies among the Aldermen were to be filled by the Mayor and remaining Aldermen had to take oath of office before the Govern in Council. The Mayor and Aldermen of each Corporation were constituted a Court of Record, authorized to decide all civil cases within the respective town and subordinate factories. The quorum of the Court was to be three. The Mayor or the Senior Alderman and two Aldermen sat together for not more than thrice a week. According to Love, appeals lay to the Court of Civil Appeals, i.e. the Governor in Council who were constituted a Court of Record and whose decisions were final in all cases up to the valuation of 1000 Pagodas. In decisions involving large sums, appeals might be taken to the King in Council. The process of the Court was to be executed by the Sheriff (The general meaning of Sheriff is the chief executive officer of the Crown in a county, having various administrative and judicial functions), junior member of the Council, initially nominated but subsequently annually chosen by the Governor in Council. Each Mayor’s court was given testamentary jurisdiction. Probate of wills and letters of administration in case of intestacy were to be granted by it. A definition of Court of Record may be given an under:“A court of record is a court whose acts and proceedings are entitled for a perpetual memorial and testimony. These records are of such high authority that their truth cannot be questioned in any court though the court of record itself may amend clerical slips and errors. A court of record has the power to fine and imprison for contempt of its authority, so that any Court processing this power may be called court of record” In 1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor's Courts. This was done in spite of opposition from Council members or the Governor. A second

BNS principle was also established during the period of the Mayor's Courts. This was the right to dismiss an attorney guilty of misconduct. The first example of dismissal was recorded by the Mayor's Court at Madras which dismissed attorney Jones. Establishment of the Supreme Court: In pursuance of the power given by the Regulating Act the Crown issued a Charter on March 26, 1774, establishing the Supreme Court of Judicature at Calcutta. The Charter settled the various details relating to the Court, and abolished the legal provisions of the Charter of 1753; the latter fact meant the suppression of the Mayor’s Court and the Court of Oyer and Terminer and Gaol Delivery. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England. The Supreme Court was constituted to be Court of Record. Then it was to consist of a Chief Justice and three Puisne (A judge of a superior court inferior in rank to chief justices) Judges, being barristers of not less than five years’ standing to be appointed by the Crown to act during the pleasure of the Crown. The Charter appointed Sir Elijah Imply as the Chief Justice, and Robert Chambers S.C. Le Maistre and John Hyde as the three Puisne Judges. They were Barristers of England of not less than five years standing. All the judges were declared to be Justice of the Peace and Coroners, within Bengal, Bihar and Orissa. In authority and Jurisdiction, they were to be in the position of Judges of the King’s Bench in England. The Chief Justice was given a casting vote. Writs, summonses, rules, orders and other mandatory process issued by the Court were to run in the Crown’s name. The Chief Justice and Judges were to nominate three persons yearly to the Governor-General in Council for them to select one as Sheriff whose duty was to execute the orders and process of the Court and to detain in prison persons committees to him by the Court. They were to appoint necessary subordinate officers but their salaries were to be approved by the Governor-General-in Council. They were to admit and enroll Advocates and Attorneys-at-law and to settle the court-fee subject to the approval of the Council. The sittings of the court were regulated and the rules of practice and standing orders were to be sent to the King in Council for approval. The Supreme Court was to have power to exercise all civil, criminal, admiralty and ecclesiastical jurisdiction; to appoint clerks and other ministerial officers on salaries approved by the Governor General in Council; lay down such rules of practices and for the process of the Court, and to do all such other things as would e necessary for the administration of justice and the due execution of the powers given by the Charter. It was further empowered Court to decide any suit or action by any of the Crown’s subjects against any inhabitant of India residing in the provinces, if there was a written agreement between the opposite parties and the latter agreed therein

BNS that in case of a dispute, the mater should be settled by the Supreme Court, provided the cause of action exceeded Rs. 500, Such suit might be either originally or by way of appeal. The Governor-General, the Councilors and the Judges were to act as Justices of the peace and to hold Quarter Sessions. The Act directed the Crown to make provisions for appeals to the King-in-Council from the decision, judgments or determinations of Supreme Court under prescribed conditions and circumstances. The Charter gave a very wide jurisdiction to the Supreme Court and defined it on the lines laid down in the Regulating Act as follows. The Court was authorized to hear, examine, try and determine all civil causes, suits and actions against (i) the company; (ii) the Mayor and Aldermen of Calcutta; (iii) the Crown’s subjects who were resident within Bengal, Bihar and Orissa or who should have resided there or who should have any debts, effects or estate, real or personal, within the same; (iv) any person who was employed by, or was directly or indirectly in the service of the Company, or the Mayor and Aldermen or any of the Crown’s subjects; and (v) any inhabitant of India residing in the said Provinces if he entered into an agreement in writing with any of the Crown’s subjects that in case of dispute between them, the matter should be determined in the Supreme Court, provided the course of action exceed the sum of Rs. 500. Such a dispute could be decided by the Court either in the first instance or by way of appeal from the Company’s Courts according to right and justice. The Supreme Court, however, was not competent to try and determine any suit or action against a person who had never been resident in Bengal, Bihar and Orissa or against anyone resident in Great Britain or Ireland unless the suit was commenced within two years of the time when the cause of action arose and the sum to be recovered was not of greater value than Rs. 30,000. The role of Supreme Court as Court of Equity, as Criminal Court, as Ecclesiastical Court and as Admiralty Court under the Crown’s Charter of 1774 had given new dimension in evolution of judicial architecture to India. The Act gave very limited legislative powers to the Governor General in Council which could frame regulations and byelaws for certain areas with the consent and approval of the Supreme Court. Thus the said Court had a complete control over legislation.

Statutes: Regulating Act, 1773; Pitts India Act, 1784; The Act of Settlement 1781. Regulating Act, 1773: Why Regulating Act 1773? 1. There were three Presidencies viz. Bombay, Madras and Bengal, under which the territories (modern Maharashtra, Gujarat, Goa, Karnataka, Tamil Nadu, Orissa, West Bengal, Bihar and Uttar Pradesh) was independently under the control of a Governor General in Council of the respective presidency. This Governor General in Council was

BNS appointed by the Committee of the Company. All powers were lodged in the Governor and the Council jointly and the presidencies were independent of each other. Each had its own government, independent from the others. 2. The mismanaged Finances made the company almost insolvent and the company was forced to apply to the British Government for a loan of One Million Pound Sterling. 3. The Prime Minister of England at the time of Regulating Act of 1773 was Lord North. His government decided to undertake a legislation to meet the situation and provide some form of legal government for the Indian possessions of the East India Company. The company was important for the revenues of the British Government because, it was a monopoly trading company and many influential people had invested in its shares at England. 4. To maintain the monopoly, the East India Company paid 4 Lakh Pounds to the British Government every year. 5. The other influential business houses of England were so far not allowed to enter India , but now the company was been unable to meet its commitments. 6. The East India Company had lost its monopoly of selling tea in North America in 1768. This was because the Dutch were able to enter the American Markets.

Since by 1773, the East India Company was in dire financial straits, the Company was important to Britain because it was a monopoly trading company in India and in the east and many influential people were shareholders. The Company paid 400,000 Pounds annually to the government to maintain the monopoly but had been unable to meet its commitments because of the loss of tea sales to America since 1768. About 85% of all the tea in America was smuggled Dutch tea. The East India Company owed money to both the Bank of England and the government; it had 15 million Pounds of tea rotting in British warehouses and more en route from India. Lord North decided to overhaul the management of the East India Company with the Regulating Act. This was the first step along the road to government control of India. The Act set up a system whereby it supervised (regulated) the work of the East India Company but did not take power for itself. The East India Company had taken over large areas of India for trading purposes but also had an army to protect its interests. Company men were not trained to govern so North's government began moves towards government control. India was of national importance and shareholders in the Company opposed the Act. The East India Company was a very powerful lobby group in parliament in spite of the financial problems of the Company. According to Act Regulating Act 1773: 1. The Government of the presidency of Fort William in Bengal should have a Governor General and a Council, which consists of four Councilors with the general democratic rule that the Governor General would consider decision of the majority of the Councilors.

BNS 2. That Warren Hastings shall be the first Governor General and that Lt. General John Clavering, George Monson, Richard Barwell and Philip Francis shall be four first Councilors. 3. That His Majesty shall establish a supreme court of judicature consisting of a Chief Justice and three other judges at Fort William, and that the Court's jurisdiction shall extend to all British subjects residing in Bengal and their native servants. 4. That the company shall pay out of its revenue salaries to the designated persons in the following rate: to the Governor General 25000 sterling, to the Councilors 10,000 sterling, to the Chief Justice 8000 sterling and the Judges 6000 sterling a year. 5. That the Governor General, Councilors and Judges are prohibited from receiving any gifts, presents, pecuniary advantages from the Indian princes, zamindars and other people. 6. That no person in the civil and military establishments can receive any gift, reward, present and any pecuniary advantages from the Indians. 7. That it is unlawful for collectors and other district officials to receive any gift, present, reward or pecuniary advantages from zamindars and other people. The provisions of the Act clearly indicate that it was directed mainly to the malpractice and corruption of the company officials. The Act, however, failed to stop corruption and it was practised rampantly by all from the Governor General at the top to the lowest district officials. Major charges brought against Hastings in his impeachment trial were those on corruption. Corruption divided the Council into two mutually hostile factions-the Hastings group and Francis group. The issues of their fighting were corruption charges against each other. Consequently, Pitt's India act, 1784 had to be enacted to fight corruption and to do that an incorruptible person, lord Cornwallis, was appointed with specific references to bring order in the corruption ridden polity established by the company.

Pitts India Act, 1784: The East India Company Act 1784, also known as Pitt's India Act, was an Act of the Parliament of Great Britain intended to address the shortcomings of the Regulating Act of 1773 by bringing the East India Company's rule in India under the control of the British Government. Pitt's India Act provided for the appointment of a Board of Control, and provided for a joint government of British India by both the Company and the Crown. According to 1784 Act: A governing board was constituted with six members, two of whom were members of the British Cabinet and the remaining from the Privy Council. The board also had a president, who soon effectively became the minister for the affairs of the East India Company. The board had power and control over all of the acts and operations relating to the civil, military and revenues of the company.

BNS The governing council of the company was reduced to three members, and the governor-general was authorized to veto the majority decisions. The governors of Bombay and Madras were also deprived of their independence. Calcutta was given greater powers in matters of war, revenue and diplomacy; thus becoming in effect the administrative capital of company possessions in India. By a supplementary Act passed in 1786 Lord Cornwallis was appointed as the second governor-general, and he then became the effective ruler of British India under the authority of the Board of Control and the Court of Directors. The constitution set up by Pitt's India Act did not undergo any major changes until the end of the company's rule in India in 1858.

The Act of Settlement 1781: The Act of Settlement 1781 was passed not because the jurisdiction of the Judges of the Supreme Court had been exceeded by them, but because it had been found difficult to exercise jurisdiction without conflict with the Provincial Court and the Government (i.e. because the Regulating Act of 1773 had proved to be a ruinous mistake). Section 72 provided indeed an indemnity (security or protection against a loss or other financial burden ) for the Governor-General in Council and the Advocate General for their transgressions of the law in opposition to the judges, but no such indemnity was found to have been granted or required for the Judges themselves. Parliament felt that the Act of 1773 had been a failure, not because it had been misapplied but because it was wholly inapplicable and unsuited to the wants of India. The Act of 1781, (2, Geo. III, C. 70), was passed therefore to explain and amend the Act of 1773 and for the relief of certain persons imprisoned at Calcutta under a judgment of the Supreme Court and also for indemnifying the GovernorGeneral and Council and all officers who had acted under their orders or authority to the undue resistance made to the process of the Supreme Court. The Preamble of the Act of 1781 reads as follow:“Doubts and difficulties had arisen with regard to the provisions of the Act of 1773 and the Charter issued under it, and by that reason dissension had arisen between the judges and the Governor-General and Council and the minds of many people had been subjected to fears, and further mischief might possibly ensue from the said misunderstandings and discontent if a suitable remedy be not provided. Whereas it is expedient that the revenues of Bengal, Bihar and Orissa should be collected with certainty and the enjoyment of all their ancient laws, usages, rights and privileges.” _________