Judicial Set in Madras, Bombay

Nirma University Institute of Law History of Courts, Legislature and Legal profession in India 2BAL202

East India Company Module - 3

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Establishment Organization and Management Legislative Powers Objects of the Company Royal Grants of 1615 and 1623 Charter of 1661 The settlement at Surat Constitution and Functions of the Factory

The East India Company • First –incorporated in England under a Charter granted by Queen Elizabeth on 31st December 1600 • Its official title was –The Governor and Company of Merchants of London trading into the East Indies • Given exclusive right of trading in all parts of Asia, Africa, and America Establishment • Incorporated in 1600

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For 15 years, but it may be wound up earlier on 2 years notice if trade was found unprofitable • Exclusive powers of trade Organization and Management • All members of the company constituted themselves as General court • General Court was to elect annually the court of Directors • The Court of directors consisted of a Governor and 24 directors • The Court of Directors was to manage the entire business of the company • General Court had power to remove any of the directors or the Governor of the court of Directors before the expiry of his term of office. Legislative Powers • The Charter of 1600 conferred on the Company some legislative powers: History of Courts, Legislature and Legal Profession in India, 2BAL202,

Course Coordinator Ms. Madhuri Parikh

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Authorized the General court to make bye laws, ordinances etc for the good governance of the company, its servants and advancement of trade • Authorized to punish for the violations of these laws and ordinances by fine or imprisonment Cont…

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The laws and punishments were to be reasonable and not contrary to the laws, statues or customs of England. • Conferred on the company the power of minor legislation with object to enable the company to regulate its own business and maintain discipline amongst its servants. • Charter did not intent to confer the power to legislate for and to govern some territory • No power to decide the cases of capital offences and to prescribe death sentence

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The legislative powers conferred on the company by this charter is of historic importance as it is the germ out of which the Anglo Indies Code were ultimately developed. Objects of the Company

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The company was incorporated to promote British trade and commerce in Asia, Africa, America. • The company’s powers were limited to maintain business, advancement of trade and to regulate discipline amongst its servants and these powers were not adequate to govern any territory. Cont… • Company came to India, found that Indian Kings were disunited and unaware of the modern politics, the company slowly and gradually inclined to acquire territory in India • Portuguese occupation of Indian territories also inspired the company to acquire the territory in India. • The acquisition of territories was also beneficial from commercial point of view. Royal Grants of 1615 and 1623 • Under Charter of 1600-the legislative powers were not sufficient

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At the instance of the company the British crown issued commission to the General in Command of the voyage • Company sought the help of the crown to punish people for capital offences

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Crown did it by issuing commissions

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By such commissions –the Crown authorized the commander in chief of each voyage separately to punish for serious offences.

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Course Coordinator Ms. Madhuri Parikh

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1601-first commission issued 1615- on 14th December 1615- the Crown gave general power to the company to issue such commissions to its captains • Thus the power of the company in this regard was subject to the limitation that in capital offences of murder and mutiny the trial should be by a jury of 12 servants of the company 1623 • Subsequently when the company established its business at different places on 4th February 1623 King James-II granted to the company the power of issuing Commissions to any of its Chief officers authorizing them to punish persons, subject to a jury trial in case of capital punishment. Charter of 1661 • The Charter issued on 3rd April, 1661, by Charles II . • It has a special significance in the Indian legal history • The company was empowered to appoint a governor and council at its factories • In addition to other powers, the Governor and its council were authorized to judge all persons belonging to or living under the company whether civil or criminal according to the laws of England and to execute judgment accordingly

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In places, which had no Governor and Council, the chief Factor and Council were empowered to send offenders for punishment either to a place where there was a Governor and Council or to England.

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The Charter of 1661Authorized the Company to try and punish all persons living under it, including the Indians • Opened the doors for the introduction and application of English law in India, and • Conferred judicial powers on the executive, viz., the Governor and Council. The settlement at Surat • Establishment of its first factory at Surat in 1612 • During the time of Mughal Emperor Jahangir. • To gain the favour of the Emperor, King James I sent Sir Thomas Roe to him in 1615 as his Ambassador. • The Emperor issued ‘Firman’ granting certain facilities to the English People to carry on their activities in a hired house at Surat

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It also facilitated that the company people could live according to the laws, religion, customs of England and to be judged by their own laws in their disputes. • In dispute arising between an Indian and an English was to be decided by local Indian Courts. Constitution and Functions of the Factory

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Course Coordinator Ms. Madhuri Parikh

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The factory was established by a President and Council who were appointed by the Company. • The decisions of the majority would be the decisions of the company • Apart from exercising their powers for trading purposes the President and his Council also had the power to administer law and justice • Very little information about judicial system at Surat

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But this is clear that that English people were governed by dual judicial system of laws, namely: • In their personal matters –by laws of England

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In matters with Indians-by native laws of this country

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The native courts at Surat also did not enjoy good reputation

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Corruption amongst the judges were rampant

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The Surat settlement remained in prominence until 1687

Suffered from many evils

The administration of Justice by Mughal Emperor was unsatisfactory particularly those cases which were not decided by the Emperor himself. • No set pattern of crimes and Punishment

Indiscrimination in punishment Cases of bribes Many English people took law in their hands and did not care for the courts

Due to the transfer of seat of the President and Council to Bombay in that year, Surat lost its importance for the Company. Charter of 1600 1661 • 1600 • Purpose of charter was to maintain discipline amongst its servants. • Company’s purpose was limited up to making trade in India. • It was restricted: • In respect of persons it was applicable only to its servants. • In respect of punishments no harsher punishments can be inflicted. • Legislative powers were limited. • 1661 • It conferred wide judicial powers on the Company to administer justice in its settlements.

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The power of the company was extended to the company’s servants as well as persons living in the Company’s regime. • It authorized all punishments-including death sentences. • The purpose of the charter was to create judicial system for the company’s territorial possession. • This indicates that the Company was no longer a trading company but was becoming a territorial power as well. •

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In 1687 the seat of President and council was transferred from Surat to Bombay and Surat lost its Pre eminent position of being Company’s principal trading stations in West India. It was subordinated to Bombay. • The Important role was played by the three presidencies-Madras, Bombay, and Calcutta. • In the initial years –these presidencies were only trading stations. But later on they became seats of power .Earlier the purpose of the Company was limited only to trade.

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Later on the Company assumed the political functions as it acquired a territory.

The three territories of Madras, Bombay, Calcutta were known as Presidency town s and the territories around these presidencies were known as mofussil. • The early centers of British power in India were three presidency towns-Madras, Bombay and Calcutta.

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Actually the study of this periods reveal that initially the judicial system at presidency towns was designed to administer justice to Englishmen but with passing of time, the Indian population was increased in these settlement so some adjustments were made in the judicial system to provide justice to these people also. But it was heavily oriented towards the English legal system.

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Madras

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1639-1665

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The company constructed here a fortified factory named St. George in 1640.

Madras was the first presidency town established by British people in India.

The growth of the Judicial system in Madras can be studied under three phasesbefore 1726

1639-22nd July an Englishman, Francis Day acquired a piece of land on the eastern sea-coast from a Hindu Raja of Chandragiri for the East India Company. • It was known as Madraspatnam.

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In this fort the majority of people living were Europeans. So it was known as white town. While the village near the fort was inhabited by the native Indians and so it was known as black town. • The settlement comprising both the white and black towns was known as Madraspatnam. • The Raja Empowered the Company with full authority to govern the whole city of Madras Administrative set up • Status of Madras- Agency • Head- Agent+ Council • Agent administered the settlement with council. • It was subordinated to Surat because Surat was the only presidency town at that time. • Affairs of the settlement were mostly commercial. No complicated administrative problems Judicial system

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The Agent and the council were authorized to decide both civil and criminal cases of English people residing at St. George. • Very meager information is available during the early judicial system in the Madras settlement. • Raja granted the rights to administer justice in black town to English people but they did not interfere and allowed the old traditional courts to govern the natives.

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In old native system, Choultry court was administering justice in Madras. This Court was presided over by the village head known as Adigar. An Indian native Kannapa was appointed first Adigar in 1644 to decide petty civil and criminal cases. • But there were some charges of Bribery and corruption against him and he was removed from his office.

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Inquiries in this case were made by the English people. Agent and council held Kannapa guilty and dismissed him from his office.

Consequently European persons were appointed to preside over the Choultry court from 1648 onwards.

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Thus during the period from 1639 to 1661 two separate bodies were administering justice in Madras:

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Agent and council in white town & Choultry court in Black town.

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In serious cases reference was made to Raja but he always insisted that accused must be punished according to the provisions of English Law.

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No fixed procedure was laid down to decide cases.

The Second Phase: 1665-1686 • Extensive power and delay in justice • Charter of 1661 conferred wide powers but did not become immediately operative • A change came in 1665 due to one important case which proved a turning point • Case: Mrs. Ascentia Dawes was brought under the trial before the Agent and the Council on a charge of murdering her slave girl. The agent and council referred this matter to the company’s authority in England. The company decided to make operative the charter of 1661 and raised the agent to the status of Governor

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With the effect of Charter of 1661 the judicial power of the governor and council was extended to the Englishmen and all other who were living in this settlement. • The Agency of Madras thus became Presidency in 1665 • Trial of Mrs. Dawes • Her case was decided with the help of jury consisted of six Englishmen and six Portuguese. The Jury found her guilty of the murder but not in “order and form”

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It was a confusing statement. Governor wanted clarification from the jury to decide whether guilty or not- the Jury declared her not guilty. She was acquitted. The Governor and council were not lawyers and not well versed in law. So they felt difficulty in deciding such legal issues and complications. So they wrote a letter to the company requesting to provide assistance to them of a person better skilled in law. But company did not send lawyers to Madras.

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Important Points The quality of justice was not of a higher order Charter of 1661 stipulated administration of English law but none of the judges – Government and council had an elementary legal knowledge. • The charter was a dead letter from the practical purposes • The governor and council did not function regularly efficiently or earnestly.

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Strenshyam Master-1667-1681 In March 1678 the governor’s court resolved that they would sit twice in a week. Choultry was reorganized.

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Third Phase 1686-1726

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There were some problems like- Infringement of company’s monopoly of trade granted by the charter of 1600. • Some independent merchants were doing unauthorized trade and traffic against the tenor of grant so the company had to suffer loss. • Increasing crimes of piracy. • Because of these reasons a need was felt to establish a court having maritime jurisdiction. Charter of 1683

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Consequently on August 9 1683 Charles II granted a charter to the company authorizing it to establish one or more courts at such place or places as it might direct • consist of a person learned in “civil law” and two merchants appointed by the company.

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This court would have following powers: To hear and determine all cases mercantile and maritime in nature, concerning persons within the charter limits of the company; all cases of trespasses, injuries and wrongs done or committed on high seas within the charter limits of the company, • cases of forfeiture and seizures of ships of goods which came for the purposes of trade within the company’s monopoly area. Charter of 1686 • April 12 1686 James II issued a new charter

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With same provisions Prescribed civil rather than common lawyer as the head of the Admiralty courts

That court was known as Admiralty because of an international character and its dealing with maritime trade. Admiralty Court • The proposed Court was established in Madras on July 10 1686. • Consisted of three civil servants who were members of the Governor’s Council. • The first members were three servants who were also members of the Governor’s Council. • In the year 1687, the Company sent from England Sir John Biggs, a professional lawyer learned in civil law to act as judge advocate • With his arrival Governor and Council ceased to function as a court.

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Jurisdiction of the Court-it could decide civil, criminal, mercantile or maritime cases- with the help of jury.

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Admiralty court started functioning as the general court of the land It had wide jurisdiction-civil, criminal, maritime, mercantile.

• Two important aspects of the Admiralty courts were • Professional lawyer administered justice, • Executive gave up judicial functions and jury was not allowed. • In 1696 the company directed that the members of the council should serve as the judge advocate. • From 1698 on wards according to the company’s instructions Governor and Council started hearing appeals in cases involving less than 100 pagodas. • After 1704 Admiralty court ceased to sit on regular basis and convened occasionally when any necessity was felt. Mayor’s Court • Established in 1688

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Charter of Dec. 30 1687 by the company

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Mayor’s court was part of Madras Corporation.

Company issued this charter under the authority and powers of making laws under the Charter of 1600 and the power of governing its settlements –conferred by the Charter of 1683.

Madras corporation was established on Dec. 30 1687 It was similar to England’s Mayor’s court

In England it was customary to confer judicial powers on Municipal Corporation and mayor’s court was functioning as part of it.

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Madras Corporation was established for two reasons: Madras has become populous town Dutch had applied the system of corporation in the east part of India Company thought of similar establishment in hope of further growth In 1686 the madras Govt. had levied house tax to raise money for defraying he cost of reparing the city wall.

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in the charter of 1683 the Company declared that the Madras Corporation should consist of a mixture of the best and honest people of all sorts residing within the corporation . • The company also conferred power on the corporation to decide small disptes.

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Madras Corporation –came into existence on Sept. 29 1688

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Consisted of a Mayor, 12 Aldermen, 60 to 120 burgesses

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The tenure of the Mayor’s office-1 year, can be re-elected

The Charter itself appointed the first Mayor who was the member of the Governor’s Council, all aldermen -3 of them belonged to the Council

He was elected by Aldermen+Burgesses from amongst the Aldermen Could be removed by them if he demean his office Only an English man can be appointed as Mayor

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Constitution: Mayor 12 Aldermen-3 Englishmen, 3 Hindus, 1 Frenchman, Portuguse-2, Jews and Armenians-3 • Charter appointed 30 Burgesses-others were elected by the Mayor, and the Aldermen • Burgesses-Amongst first 60-30 were heads of various castes.

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The madras corporation was organized in a very appropriate manner. It gave representation to all major communities in the settlement. • A reserve power was vested in the Governor and Council to remove any one – Mayor, Recorder, Aldermen, Burgess, and to appoint any one in the vacancy so caused.

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Mayor’s Court –Consisted of Mayor and three Aldermen; Mayor and Two Aldermen-formed quorum of Mayor’s Court • A Court of Record for Madras town • Civil and Criminal Jurisdiction • In civil Cases-where the value exceeded 3 pagodas, in criminal cases where accused was given death sentence appeals from Mayor’s Court were allowed to go to Admiralty Court

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In the Initial years the Court was doubtful about his power to award the death sentence but in 1712, the Governor and the Council decided that it could award death sentence to natives only. • The Mayor’s Court dispensed justice according to the laws made by the Company and on the basis of justice ,equity and good concise

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The justice was not according to any fixed, uniform rules in a consistent way Judges of the Mayor’s Court had no legal knowledge A recorder of the Court was appointed –his place was next to the Mayor

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An English born Legal servant of the Company-with legal knowledge can be appointed to this post of Recorder

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A recorder was appointed by the Mayor and Aldermen to assist the Court Sir Biggs –first Recorder The governor had great influence on the Mayor’s Court Mayor and several aldermen –were members of the Council The relationship between the mayor’s court and Governor and council was not

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No separation of Powers

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The Four Courts at Madras Admiralty-presided over by Judge advocate Mayor’s Court-Mayor Choultry Court-two Aldermen

Court of Governor and Council-governor. Drawbacks: • Justice Not on any fixed legal rules • The process of administering justice was slow • Result was uncertain • Presiding Authority’s notions of Justice were hardly based on any principles of law and equity • Mayor’s court was presided over by non-professional persons and personal prejudices and whims played important role • Lack of uniformity and consistency in the decisions Administration of Justice in Bombay Administration of Justice in Bombay • The Portuguese had acquired the Island of Bombay from the King of Gujarat, Sultan Bahadur in 1534. • The King of Portugal, Alfonsus VI, gave it in dowry to the King of England, Charles II, when the English King married his sister Princess Catherine in 1668. • At that time Bombay was very backward place and economically not profitable. • The English King gave it to the East India Company in 1668 for a very nominal rent of 10 pound.

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Before 1726 the judicial system developed in Bombay in three stages. First stage: 1668-1683. Second stage: 1684-1690

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Third stage: 1718-1726. Charter of 1668

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It authorized the Company to legislate and exercise the judicial authority in the Island of Bombay. • It conferred full powers, privileges and jurisdiction to make laws, ordinances and constitutions for the good governance of the island. • The Company was empowered to impose appropriate punishments by way of fine, imprisonment and even death sentence.

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The power of legislation and administration of justice were granted to the company under two conditions: (i) the laws were to be consonant to the reason ;( ii) Laws should not be repugnant but as near as possible may be agreeable to the laws of England. • The Company was empowered to create courts and to judge all persons and all actions

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The Charter contemplated –establishment of courts and law in Bombay on the same lines as in England • Procedure of the Courts should be similar –to the procedure of the courts in England. • The Charter was a transition of the Company from a trading association to a territorial sovereign invested with powers of civil and military government. First Stage: 1668-1683 • A deputy Governor and Council were appointed to administer justice in Bombay. • Governor of the Surat Factory was the ex officio Governor of Bombay. • Judicial System: • The main architect of the judicial system in Bombay was -Gerald Aungier, the Governor of the Surat Factory. He reorganized the old judicial set-up of Bombay.

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Gerald Aungier was the true founder of the Judicial system in Bombay He was a man of liberal ideas. He believed in a sound and impartial administration of justice, without fear or

favour. Judicial Reforms • The freedom of worship and religious beliefs granted to all inhabitants. It prohibited the use of abusive language in respect of other religions. • Impartial administration of justice.- It provided for a trial by jury of twelve persons on cases concerning deprivation of rights.

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Establishment of a court of judicature to decide all criminal cases. The Governor and Council could appoint a judge. In the trial of Englishman, jury of twelve Englishmen was required. In the trials of others, jury of six Englishmen and six Indians was required. Right of Appeal

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Registration of transactions concerning sale of land and houses. Deals with penalties for different crimes. Military discipline and prevention of disorder and revolt.

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According to the reforms of 1670 the island of Bombay was divided into two divisions: • Consisted of Bombay, Mazagaon, Girgaon;

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Consisted of Mahim, Parel, Sion and Worli.

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A separate Judicature was established for each division at Bombay. Each court consisted of five judges. The custom officer of each division would preside over the respective court. This custom officer must be an Englishman.

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Each court consisted of five judges: Custom officer Two Englishmen Two Indians

They were working honorary – Englishmen had no adequate Knowledge of Indian laws, so some Indians were appointed as judges to assist him. – The courts were authorized to deal with the cases of theft and all civil actions up to 200 Xeraphins in value. – The Court was required to keep register of all its proceedings and to deliver its authentic copies thereof quarterly to the Deputy Governor and Council – An appeal from court of each division was allowed to the court of Deputy Governor and Council. – Deputy Governor and Council were to constitute superior court with appellate and original jurisdiction in important cases.

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– The Jury helped the court and it had to dispense justice according to the laws of England.

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The Court of Deputy Governor and Council had original jurisdiction in all civil matters of more than 200 Xeraphins and all treasonable, capital and other criminal cases • Appellate jurisdiction in all matters-with the help of Jury Defects of the judicial system of 1670: • The traders who had no legal knowledge administered Justice. • They received no salary for this judicial work. • There was no distinction between executive and judiciary. • Aungier was aware of these defects, so he made request to the Company to provide persons who were experts in law. • The company agreed and asked him to select such person amongst its servants in India. Aungier selected George Wilcox and with his advice the plan of 1672 was prepared. The Judicial Plan of 1672 • Proclaimed on 1st Aug. 1672.

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Introduction of English laws in Bombay. The Portuguese laws were abolished. The judicial machinery was reorganized. A new court known as court of judicature was established.

Judicature Court: • George Wilcox was appointed its judge.

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Jurisdiction: in all cases civil, criminal, testamentary.

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Judges could not carry on private trade or business.

Was to sit once a week to try civil cases with help of jury. Provisions for speedy trials and quick decisions. Court fee- 5% of the valuation of the suit.

Judges had salary of Rs. 2000 per year. An appeal was allowed from this court to the Deputy Governor and council. Juries were employed and paid. Attorneys were allowed to practice. English laws and procedure were followed.

Criminal Courts:

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To administer criminal justice Bombay was divided into four divisions. Bombay, Mahim, Mazagaon, Sion. In each division a justice of peace, an Englishman was appointed. Justices of peace would do the preliminary examination of the witnesses

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The record of the court was to put before the court which met once month to decide criminal cases- with the help of Jury • All justices of Peace sat in a Court as assessors to help the judge in deciding Criminal cases. • Appeals from this court lay to the Deputy Governor in Bombay Court of Conscience: • For deciding petty civil cases. • Met once a week. • Presided over by Wilcox as the Judge • Dealt with the civil cases under 20 Xeraphins. • The decision of the Court was final and no further appeal was allowed. • No court fee was charged and so it became Famous as “Poor man’s Court” • Judge of the Court of Judicature presided over this court. • No jury • George Wilcox, the first judge of the Court of Judicature died in 1674. • James Adams and then Nicholls succeeded him. • But the situation of the judiciary was not good at that time. • There was an injudicious interference with the court by the council. • Judge was dependent on the goodwill of the Council e.g. Nicholls was dismissed in 1677. • Salary and rank of a Judge were reduced and the Council became superior in power and position. • There was again interference by the executive in the judicial system. Second Stage-1684 to 1690. • Admiralty Court • The Charter of 1683 provided for the establishment of Courts at such places as the Company might direct for maritime cases of all kinds. • Accordingly, an Admiralty Court was established in Bombay in 1684. • The setting up of an Admiralty Court in 1684 under the Charter of 1683 opened the second phase in development of the Bombay Judiciary.

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• Dr. St. John, an expert in Civil Law was sent by the Company to preside over the Court as Judge - advocate.

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John Child, Governor of Bombay was not in favour of the theory of judicial independence. • There were continuous clashes between the Governor and the Court, and St. John was dismissed for his refusal to subordinate his own judgment to the wishes and directions of the Governor and Council. • After Dr. St. John's exit, Justice continued to be administered by lay person till late in the eighteenth Century.

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The Court of Judicature

The Court of Judicature was created because the authority of the Admiralty Court was not sufficient to cover all civil business. • The Judge Advocate of the Admiralty Court was to preside over as the Chief Justice of this Court.

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In 1690 Siddi Yakub, admiral of the Mughal Emperor invaded Bombay and the judicial system of Bombay came to an end. • After 1690 for some period a practice of appointing separate judges was not followed and the Governor and the Council took the responsibility of administering justice. • From 1690 to 1702 –For a period of twelve years there were no courts.

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The Company was not ready to send a qualified lawyer to Bombay. Such a state of affairs continued up to 1718. So this period was known as a dark period in the legal history of Bombay.

The Third Stage-1718 to 1726 • The third period marked with the revival of the judicial machinery in Bombay. • Inauguration of a Court of Judicature on 25th March 1718. • It differed from the former Court of Judicature. • This court consisted of the Chief Justice and five English judges (all members of the Council) and four Indian judges-representing different communities. • The court had wide power to exercise jurisdiction over all civil and criminal cases.

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Administered justice according to the rules and ordinances issued by the Company from time to time. • The Court was also authorized to act as Registration House for the registry of all sales relating to houses, lands and tenements. • In the cases involving the amount of Rs.100 or more, appeals were allowed to the Court of Governor and Council. • It met once in a week.

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Moderate court fee was charged.

The Court was famous for impartiality, speedy justice and for the cheapness of its process. • But the application of law was marked by the vagueness and uncertainty and lack of uniformity in punishing criminals.

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Rama Kamati case. Ram Kamati was a rich and influential person and a good supporter of the Company. He was arrested on the basis of the charge of corresponding with one pirate chief Angria. There was not any conclusive evidence of this charge.On the basis of wrong evidence Kamati was found guilty and was sentenced to an indefinite period of imprisonment.

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His trial was held before Governor Boone and the Council and Chief Justice Parker. The property of Kamati was auctioned and the governor Boone himself made a claim of Rs.32000/ against Rama. • Rama’s case shows the dark side of the justice at Bombay.

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