Hist Project.docx

1

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE JUDICIAL SYSTEM UNDER EAST INDIA COMPANY

SUBJECT HISTORY

NAME OF THE FACULTY Dr. VISWACHANDRA NATH MADASU

Name of the Candidate: E.ANUSHA REDDY Roll No: 2017111 Semester1

2

TABLE OF CONTENTS 1) 2) 3) 4) 5) 6)

ACKNOWLEDGEMENT…………………………………………...………….…..3 ABSTRACT…………………………………………………………...…………….4. RESEARCH PROBLEM……………………………………………………………5 REVIEW OF LITERATURE………………………………………....…………….5 RESEARCH METHODOLOGY……………………………………………………5 INTRODUCTION……………………………………………………………………6

7) EARLY CHARTER AND SURAT FACTORY……………………………………….8 8) ADMINISTRATION IN MADRAS……………………………………………………11 9) ADMINISTRATION IN BOMBAY…………………………………………………..14 10) ADMINISTRATION IN CALCUTTA………………………………………………….16 11) 1726 CHARTER………………………………………………………………………17 12) MAYORS COURT…………………………………………………………………….18 13) WARRAN HASTTINGS………………………………………………………………21 14) 1773 REGULATING ACT…………………………………………………………….26 15) 1784 PICTS ACT………………………………………………………………………..27 16) CORNAWALLIS REFORMS………………………………………………………….28 17) 1793-1853 CHARTER…………………………………………………………………..30 18) BIBILIOGRAPH………………………………………………………………………32

ACKNOWLEDGEMENT I want to express my special thanks to my teacher, Dr. VISWACHANDRA NATH MADASU who gave me this opportunity with regard to project on the topic ‘JUDICIAL

3 SYSTEM UNDER EAST INDIA COMPANY’, which also enlightened me in doing a lot of research and I came to know about a lot of things.

Secondly, I also thank DSNLU for providing me with all the necessary materials required for the completion of the project.

ABSTRACT

4 The East India Company evolved from a small enterprise run by a group of City of London merchants, which in 1600 had been granted a royal charter conferring the monopoly of English trade in the whole of Asia and the Pacific. From its origins as a small London enterprise, the East India Company (EIC) emerged as a powerful commercial and political organization, whose presence in the Gulf helped shape the region’s modern history. The company was formed to share in the East Indian spice trade. That trade had been a monopoly of Spain and Portugal until the defeat of the Spanish Armada (1588) by England gave the English the chance to break the monopoly. Until 1612 the company conducted separate voyages, separately subscribed. There were temporary joint stocks until 1657, when a permanent joint stock was raised. The company met with opposition from the Dutch in the Dutch East Indies (now Indonesia) and the Portuguese. The Dutch virtually excluded company members from the East Indies after the Amboina Massacre in 1623 (an incident in which English, Japanese, and Portuguese traders were executed by Dutch authorities), but the company’s defeat of the Portuguese in India (1612) won them trading concessions from the Mughal Empire. The company settled down to a trade in cotton and silk piece goods, indigo, and saltpetre, with spices from South India. It extended its activities to the Persian Gulf, Southeast Asia, and East Asia. East India company's administrative policies were driven by economic motives largely to expand trade. Indian rulers focussed primarily on sustaining their political power by protecting territories. British introduced exploitative revenue systems to amass resources to purchase Indian products. Rulers revenue systems were not as exploitative as the British and in most cases protected the Interests of the people by granting exemptions in lean seasons. Warren Hastings introduced court systems.

RESEARCH PROBLEM:

5 WHAT WAS THE ADMINISTRATIVE SET UP THAT WAS SET OUT BY THE BRITISH TO CONDUCT PROPER TRADE AND EXPAND THEIR TERITORY

REVIEW OF LITERATURE: Sources regarding the study mostly included the web sources and some of the books etc. Review is done on a wider view basis to elaborate in an accurate way. Then only the research becomes a complete one. The data is collected from the web sources.

RESEARCH METHODOLOGY: This project is purely doctrinal and based on primary and secondary sources such as websites, books, journals and internet sources. The research is purely descriptive in its boundaries of the topic.

INTRODUCTION

6 Governor and company of merchants of London trading with East India (East India company) came to India in the year 1600 with charter of 1600 passed by British crown. At the beginning of the company administration it is only meant for the proper administration the company and its workers only. Later on the company powers were expanded. At the 1st stages of the company it used be under the control of Mughal rulers and decided to build a factory at Surat by 1611 and there was branch started at musilipatnam now machilipatnam for better trading activities. In 1600 company was only a body established for the purpose of trading with east India later it gained power in India and started administrating activities within India. India has a known history of over 5000 years, and there were the Hindu and the Muslim periods before the British period, and each of these early periods had a distinctive legal system of its own. One may, therefore, say that a comprehensive study of the Indian Legal History should comprise the historical process of development of legal institutions in the Hindu and the Muslim periods also 1.That may be so, but there is a pragmatic reason for concentrating mainly on the British period, and that is that the present judicial system is what the British created, and hardly has any correlation. Continuity or integral relationship with the pre-British institutions. In the field of law and justice, as in many other fields, the British period constituted fundamental break from our traditions of the hoary past. The British period is nearest to us and our present is affected more intimately by the immediate rather than the remote past. While references have been made to the pre-British developments whenever it appears necessary to describe the developments during the British period more adequately. In the main, the book is a chronicle of events of the British and the postBritish periods in the area of law and justice The Englishmen realising the importance of having a sound judicial system in the territories falling under their sway, started on the task of evolving a judicial system practically from the very outset of their administrative career. The administrative responsibility devolved on them first with respect to the three Presidency Towns which were founded by them to facilitate their trade and commerce. To begin with, an elementary judicial system was improvised there. Manned by non-lawyers, mainly traders and merchants, the early courts were too much under executive control. Because of the Englishman’s natural partiality for his own law, these courts were enjoined to administer the English law. But for long this remained merely a paper requirement for the non_lawyer judges had no idea of any law, much less of the complicated English law, and, therefore, in reality, justice was largely discretionary and depended on the

7 notions of equity and fair play Entertained by the presiding judges. The British period thus opens with an extremely elementary and executive –ridden judicial system in the Presidency Towns2.The major breakthrough in this situation occurred after nearly L50 years of the British administration when the Supreme Court was established at Calcutta in 1774. It was a court of the English law, consisted of professional English lawyer judges and was aided by an English bar. To a great extent it was a replica of the courts at Westminster.

1. For the system of law and justice during Hindu period sec: P. V. Kane, History of Dharmasastra, III, Ch.XI, pp. 242-316; S. varadachariar, The Hindu Judicial System, Lucknow

1949;

for

the

Moghal

period

see

sir

Jadunath

Sarkar,

Mughal

administration(1935); M.B. Ahmad, The Administration (1941); M.B. Ahmad, the administration justice in medieval india, the Aligarh Historical research Institute, 1941. 2. Chapter II,III,IV,V and VI, infra.

EARLY CHARTER AND SURAT FACTORY

8

The emergence of the British Empire in India stands out as a unique event in the history of the World. Unlike many other empires, the huge edifice of this Empire was created by merely a Company which was organised in England for furthering the British commercial interests in Overseas countries. The East India Company, with its official title as ‘The Governor and Company of Merchants of London trading into the East Indies,’ was incorporated in England on the 3lst December, 1600, by a Charter of Queen Elizabeth which settled its constitution powers and privileges. The Company was to have a life span of fifteen years, but the Charter could be revoked earlier by the Crown on two years notice if the trade carried on by it did not appear to be profitable to the realm3. The Company was to enjoy an exclusive trading right into and from the countries lying beyond the Cape of Good Hope eastwards to the Straits of Magellan. India, Asia, Africa and America fall within these geographical limits. No British subject was permitted to carry on any trade within this area without a license from the Company. Unauthorized British traders were liable to forfeiture of their merchandise and ships, to imprisonment during the Crown’s pleasure and to such other punishment as might appear to the Crown to be meet and, convenient. The affairs of the Company were to be conducted on the Democratic lines. All its members were to form the General court which was to elect annually the Court of Directors consisting of a Governor and 24 directors for managing the Company’s affairs. The Governor and the directors were to hold office for one year though they were eligible for re-election. The General Court could remove any of them before the expiry of his term if he did not ‘demean himself well in his said office,’ and elect a new person to fill the vacancy for the remainder of the year. CHATER 1661: The Charter of 1661 which conferred broad powers on the company to administer justice in its settlement has an important bearing on the evolution of the judicial system of India. The company prayed the Council of state in England for grant of powers to their Presidents and Councils in India to enforce obedience in all Englishmen resident within their jurisdiction, and to punish offenders according to the laws of England. The company pleaded that it had been for years without proper authority to enforce, obedience amongst the English subjects with in their

9 limits3. Consequently, on 3 April, 1661, Charles II granted a new Charter to the company authorizing the governor and the council of each factory to judge all persons, whether belonging to the company or living under them, in all cause, civil and criminal, according to the laws of England, and to execute judgment accordingly. In place having Governor, the chief factor and council were to send offenders for punishment, either to a place having the Governor and council or England. WIDE POWERS: As compared to the Charter of 1600, the Charter of 1661 granted a much more extensive judicial power to the Governor and Council of a factory. While the power under the former Charter was restricted in respect of persons, it being applicable only to the servants of the Company, a nd in respect of punishments as capital sentence could not be awarded under it, the power under the Charter of 1661 extended not only to the Company’s servants but to all those who lived in the Company’s settlement it; authorized all punishments including death sentence, The Governor and Council could thus administer justice even to the Indians living on the settlement and take into cognisance every civil or criminal case whatsoever. Whereas the purpose of the Charter of 1600 primarily was to make arrangements for keeping discipline among the servant of the Company, the Charter of 1661 had a wider perspective; its purpose was to create a judicial system for the Company’s territorial possessions The Charter indicated clearly that the Company was no longer merely a trading concern but was on its way to becoming a territorial power as well. FEATURES: Two features of the Charter of 1661 may be underlined. First, the judicial power was granted to the Governor and Council of a factory, which meant the executive government of the place. The Charter thus drew no line of demarcation between the executive and the judiciary. Secondly, justice was required to be administered according to the English Law. This obviously was a safeguard and a privilege for the Englishmen and shows how tenaciously the right of the Englishmen to be governed by the English Law was protected. 3. Bruce’s annals, I, 459.

10 Even the very first Charter, that of 1600, had stipulated that the laws to be made by the Company could not be contrary to the laws of England. 4 As regards the Indians, however the provision of the Charter of 1661 stipulating English Law could not have worked to their advantage. The Charter placed them under the English law and did not reserve to them their own peculiar and distinctive laws, customs and usages. It will be seen later how the Charter of 1661 affected the administration of justice in India. A charter is a deed. In modern practice it is granted only by the crown, in the form of letters patent under the Great Seal of special powers, rights, privileges and immunities. It is usually made to public institutions, universities and similar bodies, but was formerly more widely granted particularly to boroughs. The East India Company was a chartered company. ADMINSTRATION AND JUDICIAL ARRANGMENTS: Being the first major English settlement in India, the administrative judicial arrangements Made at the Surat Factory are of some historical interest. The factory had a rudimentary Administrative and judicial set-up. Its administration was vested in the President and Council who were appointed by the Company. All decisions in the Council meeting were was taken by a majority of votes. The President had only one vote like any other member and had no veto and no power to overrule his colleagues. This system differed very much from what subsequently came to be adopted in India in which a Governor enjoyed a right of veto over the majority in the Council. In the area of law and justice, the Englishmen at Surat were under a dual system of law, viz, the English Law and the Indian Law. The Englishmen had settled at Surat with the leave of the Moghul Government. Ordinarily, therefore, they should have been subject to the local laws and courts. These people did not, however, cherish the idea of being governed by the Mohammed Law which had a religious character Also, the prevailing concept of law in India in those days was that law was a personal and religious institution. There was no concept of a territorial law. There was no uniform or common lex loci to regulate inheritance, Succession and other subjects. In civil cases, justice was administered according to the personal laws of the Hindus or the Muslims. The criminal law, however, was entirely Muslim. The result of this was that the Englishmen tried to secure from the Moghul Emperor the privilege of being governed in their factory by their own laws. 4. Supra, 6-7

11 ADMINISTRATION IN MADRAS FIRST PHASE: 1639-1665 Madras was founded in 1639 by Francis Day who acquired a piece of land on the Eastern seacoast from a Hindu Raja. Here the Company constructed a fortified factory and named it as Fort St. George. The Raja had also granted to the company full power and authority to govern and dispose of the government of Madraspatnam which was a small village lying near the port. In course of time, many Indians were attracted to the place because of the facilities of trade and commerce available there, and the small village of Madraspatnam grew in size and population and came to be known as the Black Town as most of its inhabitants were Indians. Inside the fort grew the White Town a settlement of the British and other Europeans. The whole settlement comprising the Black and the White Towns came to be known as Madras.5 ADMINISRATIVE SET-UP: To begin with, Madras was given the status of an agency and its administrative head was called the Agent. He administered the settlement with the help of a Council. It was subordinate to Surat,6 which was the only Presidency in India at the time in the beginning, affairs of the settlement were mostly commercial in nature and did not raise any complicated administrative problems. With the passage of time, these functions grew and became diversified.

5. Wheeler, madras remained in the olden Times, 31 (1882) 6. Supra 9-11.w

SECOND PHASE: 1665-1686

12 The Charter of 1661which had conferred extensive judicial power on the governor and Council of a settlement,7 did not become immediately operative in Madras. Thus, there occurred no change in the judicial set up and status quo was maintained in this place for sometime THIRD PHASE: 1686-1726 The monopoly of trade granted to the Company by the Charter 1600 was being infringed on a large scale by ‘interlopers’ independent merchants including in unauthorized trade and traffic against the tenor of the grant, and thus, the Company was being put to great loss. Further, the crime of piracy was also rampant on the high seas. To deal effectively with these evils, need was felt to establish courts having jurisdiction to try maritime cases. Consequently, on 9th August, 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. The court was to consist of a person learned in the civil law and two merchants appointed by the Company. It was to have power 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 wrong done or Committed on the high seas; or within the charter limits; cases of forfeitures and seizures of ships or goods which came for the purpose of trade within the Company’s monopoly area against the tenor of the Charter of 1600. The court was to decide cases according to the rules of equity conscience and the laws and customs of merchants. CORPORATION OF MADRAS: The Corporation came into existence on September 29, 1688. It was to consist of a Mayor,12 Aldermen and from 60 to 120 Burgesses. The Charter itself appointed the first Mayor, who was a member of the Governor’s Council, and all Aldermen, three of whom belonged to the Council. The tenure of office of the Mayor was to be one year and he was to be elected every year by the Aldermen and the Burgesses from amongst the Aldermen, but the outgoing Mayor could be reelected as many times as the electorate thought proper. 7. Supra, 13. The Mayor could he removed by the Aldermen and Burgesses in case he did not demean himself well in his office. Only an Englishman could hold the Mayor’s office. The Aldermen were to

13 hold office for life or residence within Madras. If an Alderman did not demean himself well in his office, he could be removed by the Mayor, Alderman and Burgesses. A vacancy amongst the Aldermen was to be filled by the Mayor, Aldermen and Burgesses from amongst the Burgesses. At least three Aldermen were required to be covenanted British servants of the Company while the remaining nine could belong to any nationality. The breakup of the first 12 Aldermen appointed by the Charter itself was as follows: Englishmen, 3; Hindus, 3; Frenchman, 1; Portuguese, 2; Jews and Americans, 3. The charter also appointed 29 burgesses; other burgesses were to be selected by the Mayor and the Aldermen. Amongst the first 60 Burgesses appointed, 30 Were heads of the various castes in the town. In this way, the corporation was so organized as to give representation to all the major communities in the settlement. A reserve power was vested in the Governor and Council to remove any Mayor, Recorder, Alderman or Burgess and to appoint anyone in the vacancy so caused. The Mayor and the three senior Aldermen were to be justices of the peace. The Mayor and Aldermen were to form a court of record, known as the Mayor’s Court, which was authorized to try all civil and criminal cases. It could punish offences by fine, amercement, imprisonment and corporal punishment. In civil cases valuing over three pagodas, and in criminal cases when the offender was sentenced to lose life or limb, appeals from the Mayor’s Court lay to the Admiralty Court. In 1712, the Governor and Council decided that it could award death sentence to the natives only. Thereafter, it did award death sentences to Indians in many cases, but never to an Englishman8. 8. Love, op cit., II, 174-5.

ADMINISTRATION IN BOMBAY The Portuguese were the first European nation to acquire the Island of Bombay in 1534, by Cession from the King of Gujarat, Sultan Bahadur. In 1661, the Portuguese King, Alfonsus VI,

14 transferred the Island to Charles II, as dowry on the marriage of his sister Princess Catherine with the British King. Bombay at the time was a small and poor place and was little more than a fishing village having a population of merely 10,0009. Finding it uneconomic to govern this Territory from England, Charles II transferred it to the East India Company in 1668 for all insignificant annual rent of £ l0. Before l726 The judicial system in the Island of Bombay grew in three stages: FIRST STAGE: The first judicial system was introduced in l670. Under it Bombay was divided into two divisions and a Court was started in each division The Court consisted of four or five judges. These Courts were empowered to hear, try and determine petty cases both civil and criminal. The Courts were to be presided over by the Customs officers. Some of the judges were Indians The quorum of the Court was three Judges. Provision was also made for the establishment of superior court of the Deputy Governor and the Council. The Court exercised both original and appellate jurisdiction. The Court decided cases with the help of the jury. The Judicial System (or Plan as its sometimes termed) of 1670 had got two drawbacks. First, the judges of both lower and upper courts had no knowledge, even of the elementary principles of law. Secondly, the executive and judicial power were not separate. To remedy the defects, a new Judicial System of l672 was enforced 9. Edwardes, Rise of Bombay, 90 (1902)

SECOND STAGE

15 This period with the establishment of an Admiralty Court in Bombay under the Charter of 1683 and was likewise that of Madras This Admiralty Court decided not only admirality maritime cases, but also civil and criminal cases. This court was presided by a lawyer. Dr. John, who was well conversant with the civil law. This system continued till 1690. In 1690 Bombay was attacked by Siddi, the Admiral of the Mughal Emperor who captured it. As such the existing system was borken. From 1690 to 17l8, the history of judicial evolution at Bombay was in the dark and no record is available to give information to that account.

THIRD STAGE: In l718 a new Court of Judicature was created which administered justice in all civil and criminal cases This Court consisted of a Chief Justice and nine judges. The Chief Justice and 5 judges were all English who were also the members of the Council. Rest four judges were Indians representing different communities. The cases were tried according to law, equity and good conscience and the rules and ordinances issued by the Company from time to time. Indian customs and usages were also considered in determining the cases The Court of Judicatue as also to serve as a Registration House of the registry of sales of house a lands and tenements. It had also testamentary jurisdiction. The quorum of the Court was to be three English judges. Indian judges were collectively called as “Black Justices” The Court met once a week and gave quick and cheap justice. The Governor and Council was to hear appeals from his Court. This Court functioned till 1728 when it was replaced by better courts, known as Mayor’s Courts under the Royal charter of 1726

ADMINISTRATION IN CALCUTTA Calcutta was founded on 1690 when the English first settled themselves at Sutanati on the banks of Houghly and erecteda fortified factory. The Fort was named as Fort William. In l698 the

16 Company purchased the zamindari of three villages, Sutanati, Govindpur and Calcutta-which ultimately developed into the modern city of Calcutta. ln l699, Calcutta was declared a Presidency with the Governor, also called President and Council to manage its affairs. The Governor in Council could exercise judicial powers under the Charter of l66l. The acquisition of the zamindari gave the Company for the first time a legal position within the Moughal Empire. It ‘brought into existence a working theory, in the development of which the acceptance of the Diwani in 1765 is the final logical completion.’ The acquisition of the zamindari raised the statue of the Company to that of zamindar who in those days collected revenue and administered justice to the people of his zamindari.Thus the Company acquired judicial power over the native in habitants from the Indian suzerain. However, unlike Bombay it had no sovereign rights in Bengal, at this stage Since the East India Company had acquired the zamindari rights from Moghal Emperors, it started functioning like a zamlndar- and discharged all the judicial functions. The responsibility for administration and disposal of justice was entrusted to an English officer who was known as the ‘Collector’. He symbolized the discharge of the functions or the Company as the Zamindar. This officer used tube a member of the Governor’s Council. Like Zamindars, he administered justice in regard to criminal, civil and revenue cases pertaining to the Indian inhabitants of this settlement of Calcutta and its adjoining villages. Like Zamindars, he carried out the judicial administration in a summary Manner and did not have jury to help him.

1726 CHARTER ACT

17 In the year 1726 the CROWN granted Letters Patent(explained below) creating Mayor's court the Presidency towns. These were not the Company's courts, but courts of the King of England. At that time the King had no claim of sovereignty to any part of the country, except the Island of Bombay. These courts were authorized to try, hear and determine civil suits and actions between party and party and to give judgment and sentence according to justice and right. Appeal from the Mayor's court lay to the Governor and Council, They used to act as a court of record. To give judgment and sentence according to justice and right, the Englishmen drew upon the rules of the common law (english law) and prevalent statute law in England in so far as they thought them applicable in the circumstances of this country ( INDIA). With the advent of the Mayor's court In 1726, the Company had sent to each Presidency a book of instructions prescribing the" method of proceeding civil suits, criminal trials, probate and administrative matters. The courts made a straight and narrow path of English Law, as English Law was unsuited for the prompt and satisfactory disposal of the criminal cases of the natives, the Charter of 1726 came to be amended 1753. The Letters Patent of 1753 expressly excepted from the jurisdiction of the Mayor's courts all suits and actions between the natives only and directed at these suits and actions should be determined among themselves, unless both parties submitted them to the jurisdiction of Mayor's court. The criminal jurisdiction of Mayor's court was confined to the Presidency towns where the electors existed and was not to extend beyond 10 miles. These courts and the law administered by them commanded confidence of Indians, who continued to sort to these courts. Indian litigation had, In fact, constituted the bulk of the work of these courts from their start and it continued to be so notwithstanding the requirement of the consent of Indians to the court exercising Jurisdiction over them. Regulation II of 1872 provided that these subjects of the Crown were to be governed by their own laws In suits regarding Inheritance, marriage, caste and other religious usages and institutions. In 1781 was added the word 'succession' to the word 'inheritance' and the judges were to act according to justice, equity and good conscience. This is how the rules of English Law were made applicable to Indian society and circumstances. MAYORS COURT

18 The charter of 1726 provided for the establishment of a corporation in each presidency town. The charter is considered to be an important landmark in the history of legal system in India as it introduced the English laws into the country. Before 1726 there were different judicial system functioning in the British Settlement, which were increased in number by 1726. As a result the servants of the many, working at such different settlements were subject to different sets of courts. There was, thus a lack of uniformity in the British settlements, for the same offence wild entail different and sometimes Contrary Penal Consequence. There was also another factor which compelled the Company to have a uniform law. There were quite important distinguishing feature between the Company’s Mayer’s Court and the Crown’s Mayor’s Courts established under the Charter of 126. The main differences are given below, 

the Mayor’s Court under the Charter of 1687 was created by the Company while the Mayor’s Courts under the Charter of 1726 drew their power directly from the Crown. Thus the latter were on a superior footing than the former



The Charter of 1687 created only one Mayor’s Court at Madras, it did not touch the judicial system prevailing in other settlements, presidencies under the Company. The Charter of 1726 created Mayor’ Courts at all the three presidencies that is Madras, Calcutta and Bombay thus, for the first time, establishing a uniform judicial system.



The Mayor’s Court established under the Charter of 1687 enjoyed both civil and criminal jurisdiction. While the mayor’s courts established under the Charter of 1726 mayor’s Courts established under the Charter of ( were given jurisdiction in civil matters including testamentary and probate of wills jurisdiction, Criminal matters were left to be decided by am within the jurisdiction of, Governor-in-Council which acted as a court i such matters.

19 

The Charter of 1726 made, for the first time, a provisions for a second appeal to the King-in-Council which became a precursor of the Privy Council 10 later on. Thus under this Charter, the first appeal could be filed before the Governor-in-Council and the second (although in some cases) appeal could be taken to the King-in-Council in England. The Charter of 1687 did not make such provision. The appeal from the Mayor’s court could be filed before the Admiralty Court.



The Mayor’s Court established under the Charter of 1687 made a provision for the representation of the natives on the court. The Crown’s Mayors Courts did not have any such representation, though there was a provision I for the same in the Charter of 1726.



No doubt, the Crown’s Mayor’s Courts established under the charter of 1726 were definitely superior courts so far as their status is concerned, but in strict judicial and legal manner, the Company’s Mayor’s Court was better equipped, for there was a provision for a lawyer-member who was to be called the Recorder. The Charter of 1726 although it purported to improve the judicial system in India, did not make any such provision. . Thus the Courts established in 1726 were mostly composed of Company’s civil servants who did not have sufficient experience in legal matters.



There was yet another important distinction between the two Mayor’s Courts. The Company’s Mayor Court evolved its own procedure and dispensed justice in accordance with the rules of common sense, equity and good conscience. It avoided the intricate procedural technicalities. But the Charter of 1726 which introduced the British laws into India brought all the legal technicalities of the British Courts of law. Thus the entire gamut of British laws and its procedure were foisted on the Courts established under the Charter of 1726.

20



The Charter of 1726, in a way, did away with the concept of separation between the executive and the judiciary in criminal matters. The Governor-in-Council acted as the criminal court while the Mayor’s Courts handled only the civil matters and testamentary and probate of wills cases. On the other hand, the Mayor’s Court at Madras was invested with power to handle all civil and criminal matters and appeals from its decisions went to the Admiralty Court rather than the Governor-in-Council.

The Charter of 1726 also constituted a Mayor’s Court for each of the presidency towns consisting of a Mayor and nine Aldermen. Three of them i.e., the Mayor or senior Alderman together with two other Aldermen were required to be present to form the quorum of the Court. The Mayor’s Courts were declared to be present to fan the quorum of the Court. The Mayor’s Courts were declared to be Courts of record and were authorized to try, hear and determine all civil actions and pleas between party and party. The Court was also granted testamentary jurisdiction id power to issue letters of administration to the legal heir of the deceased person. It was authorized to exercise its jurisdiction over all persons living in the presidency own and working in the Company’s subordinate factories. Appeals from decisions of Mayor’s Court were filed in the Court of Governor and Council. A second appeal in cases involving 1000 pagodas or more could be made to king-in-council in England. The court of Governor and Council also decided criminal cases.

21

WARREN HASTINGS The arrival of Warren Hastings in Bengal as Governor of the presidency of Fort William in 1772 proved to be a turning point in this direction. The same year, the Company was ordered by the Court of Directors to stand forth as ‘Diwan’ which meant the termination of system of ‘dual government’ and imposition of an administrative task upon the commercial men and thus the foundation of the civil service was formally laid. Accordingly, Englishmen were to be appointed as Collectors in district under the overall control of a ‘Board of Revenue’ at Calcutta, a weak system, rightly characterized by Hastings as “petty tyrants and heavy rulers of the people”. The foundation of the civil service in the modern sense was, nonetheless, laid down during his regime. (a) Hastings, having proficiency in Bengali, Urdu, Persian, understood the relationship between on acculturated civil servant and an efficient one and accordingly emphasized on the creation of an ‘orientalized elite club of the civil servants’, competent in Indian languages and responsible to Indian tradition. (b) He made efforts at lifting the moral tone and intellectual standards of servants. ‘Dastaks’ were abolished in 1773 and those engaged in the private trade had to pay a duty of 2 ½% to the Board of customs. (c) Hastings separated the revenue and commercial branches as also revenue from the judicial functioning. (d) The Regulation Act of 1773 prohibited all officials of the Company, from the GovernorGeneral and his councilors and Chief Justice and other judges of the Supreme Courts downwards, from accepting gifts, donations, gratuity or rewards. If found guilty of doing so, they could be legally convicted by the Supreme Court or the court of the Mayor.

22 (e) In 1780-81, revenue and judicial administration in districts was entrusted to English officers which was the beginning of the ‘nucleus’ of the civil service with systematization and specialization of functions, essential to such service. (f) By Pitt’s India Act of 1784, they were provided with definite scales of pay and emoluments. ADALAT SYSTEM In 1765, the company entered into an agreement with the Emperor whereby it obtained the diwani of the three provinces of the Bengal, Bihar and Orissa. In Warren Hastings prepared the first judicial plan. It was the first step to regulate machinery of administration of justice and the plan being a landmark in the ial history become famous as Warren Hasting’s plan of 1772. The main features of the plan were as follows, Firstly, all the three provinces were sub-divided into districts which were placed Collectors. These collectors were responsible not only for the collection of revenue, but also for looking after the general administration of the district, judicial system was sought to be overhauled and separate civil (diwani) and (nizamat) courts (adalats) were established at various levels. Secondly, it should be remembered that in the presidency towns, Mayor’s established under the Charter of 1726 continued to function as usual. In fact, the Mayor’s Courts had been established to handle cases which involved or concerned the Englishmen serving under the Company or foreigners. These Courts, therefore, did not touch upon matters which concerned the natives living in the areas beyond the Presidency towns. The Adalat System which was introduced under the Judicial Plan of 1772, therefore, covered the mofussil areas under the Company. Thus the judicial plan covered the natives living in the mofussil areas. The Provinces of Bengal, Bihar and Orissa, were divided into various units for the purpose of administration, both judicial and civil. These units were called districts. (1) Mofussil Diwani Adalat, At the level of each district, a mofussil diwani adalat was established. It was a court of original jurisdiction in civil or diwani matters. This court was headed by the Collector who functioned as a judge. The laws applied by this court were those embodied in the Shastras in case of the Hindus and in the Koran in case of the Muslims. This

23 court handled all cases relating to property, inheritance, succession, marriage, castes, contracts and related matters. The Collector was assisted by the learned Pandits and Kazis who were well versed in the Hindu and the Muslim laws respectively. (2) Mofussil Faujdari Adalats, Corresponding to the diwani adalat at each district, Mofussil Faujdari Adalat was established at the level of each district. This court handled all criminal cases. The law applied by this court was the Muslim law. This Court was presided over by a learned Kazi and a Mufti who were assisted by two maulvis all well versed in the Muslim law. The supervisory control on this court vested with the Collector. This court had the power to decide all criminal cases and punish the criminals except in the case of capital punishment. The proceedings of such cases had to be submitted to the Sadar Nizamat Adalat for confirmation of the sentence of death passed by this Court. There was a further provision for appeal to the Nawab or the Subedar who finally confirmed, commuted or reduced the punishment. (3) Adalats of Small Causes, At the level of village or a small town, a Small Causes Adalat was established under the Head Farmer who decided the cases upto the value of Rupees ten. His decision in cases upto the value of Rupees one hundred seven were final. In other cases, the matter could be taken up higher to the Muftissil Diwani Adalat. Courts of Appeal (1) Sadar Faujdari (Nizamat) Adalat, This was an appellate court in all criminal matters and was presided over by a Daroga who was aided in his work by the Chief Kazi, the Chief Mufti and three Maulvis. The overall supervisory control on this court was exercised by the Governor General and his Council. (2) Sadar Diwani Adalat , This Court was in fact the Governor General and his Council who all sat as judges in all diwani cases. This court heard all appeals from the Mofussil Diwani Adalats beyond the value of Rupees five hundred. The Diwani & Nizamat Adalats were established under the judicial plan of Warren Hastings. For the first time, these adalats were directed to apply personal laws of the natives. The law of the Shastras in the case of the Hindus, and the Law of the Koran in respect of the Muslims were to be applied to cases of marriage, caste, inheritance etc. The Pandits and Maulvis were to expound the personal laws of the natives.

24 In the field of criminal justice, the Muslim criminal law which was prevalent since long was to continue. Some improvements were however made from time to time with a view to imparting impartial justice. In some cases and disputes the parties were allowed to resort to arbitration, and after the award, get a decree of the Mofussil Diwani Adalat. Defects in the Plan Though the judicial plan of 1772 was the first of its kind for the administration of justice within the framework of the country, after its working certain major defects came to light. The plan provided for a civil and a criminal court in each district. (1) Less number of Courts, The head farmers were given power to decide petty cases up to Rupees ten. In fact it was necessary to have more subordinate courts keeping in view the population and the area of each district. (2) Concentration of power, Another defect was the concentration of power—administrative, tax collection and judicial, in the hands of the Collector. The Collector was the Civil Judge as well as supervisor of the criminal courts. It was impossible for the Collector to devote time and energy to regulate all these affairs. Evils of the combination of executive and judicial powers in one person were bound to follow. When the private trade done by Collectors and the misuse of powers by them and their officials came to the notice of Warren Hastings, he gave a second thought to the original plan and prepared a new judicial plan on November 23, 1773 which was implemented from 1774. As expressed by Jois, the plan, however, brought great credit and honour to (Warren Hastings because it was the proof of his intense desire to ensure impartial ‘and less expensive justice to people in the Moffiisil. Similarly it laid a second foundation for future development.

SUPREME COURT

25 The Supreme Court of Judicature at Fort William, Calcutta was founded by an Act of Parliament in 1774. It replaced the Mayor's Court of Calcutta and was British India's highest court from 1774 until 1862, when the High Court of Calcutta was established. From 1774 to the arrival of Parliament's Bengal Judicature Act of 1781 in June 1782, the Court claimed jurisdiction over any person residing in Bengal, Bihar or Orissa. These first years were known for their conflict with the Supreme Council of Bengal over the Court's jurisdiction. The conflict came to an end with Parliament's passing of the Bengal Judicature Act of 1781 which restricted the Supreme Court's jurisdiction to either those who lived in Calcutta, or to any British Subject in Bengal, Bihar and Odisha, thereby removing the Court's jurisdiction over any person residing in Bengal, Bihar and Odisha. The courthouse itself was a two storied building with Ionic columns and an urn-topped balustrade and stood by the side of the Writers’ Buildings. The building also served as the Town Hall of Calcutta at one time. It was demolished in 1792 and replaced by the present building in 1832. The Court's first judges were: 

Sir Elijah Impey, Chief justice from 1774 to 1783 on his recall to England for impeachment.



Stephen Caesar Le Maistre, Puisne judge from 1774 to 1777 on his death.



John Hyde (judge), Puisne judge from 1774 to 1796 on his death.



Robert Chambers, Puisne judge from 1774 to 1783, Acting Chief Justice from 1783 to 1791. Chief Justice from 1791-1798, on his resignation.[1]



Sir William Jones, Puisne judge from 1783 to 1794 on his death.



Sir William Dunkin, Puisne judge from August 14, 1791 to unknown

26

1773 REGULATING ACT By 1773, the East India Company was in dire financial straits.9 The Company was important to the British Empire because it was a monopoly trading company in India and in the east and many influential people were shareholders. The Company paid GB £400,000(the present-day (2015) equivalent is £46.1 million) annually to the government to maintain the monopoly but had been unable to meet its commitments since 1768 because of the loss of tea sales to America. 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 lbs (6.8 million kg) 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 to the eventual government control of India. The Act set up a system whereby it supervised (regulated) the work of the East India Company. The Company had taken over large areas of India for trading purposes and had an army to protect its interests. Company men were not trained to govern so North's government began moves towards government control since India was of national importance. Shareholders in the Company opposed the Act. The East India Company was still a powerful lobbying group in Parliament in spite of its financial problems.10

PROVISIONS: 

The Act limited Company dividends to 6% until it repaid a GB£1.5M loan (passed by an accompanying act, 13 Geo. 3 c. 64) and restricted the Court of Directors to four-year terms.

27 

It prohibited the servants of company from engaging in any private trade or accepting presents or bribes from the natives.

10. http://www.indhistory.com/regulating-act.html 11. 'The making of British India 1756-1858' Ramsay Muir page 133-39



The Act elevated Governor of Bengal, Warren Hastings to Governor-General of Bengal and subsumed the presidencies of Madras and Bombay under Bengal's control.11 It laid the foundations for a centralized administration in India. Governor of Bengal became the Governor General of Bengal with an executive council of four to assist him. Decisions would be taken by majority and Governor General could only vote in case of tie.



The Act named four additional men to serve with the Governor-General on the Supreme Council of Bengal: Lt-Gen John Clavering, George Monson, Richard Barwell, and Philip Francis.



A supreme court was established at Fort William at Calcutta. British judges were to be sent to India to administer the British legal system that was used there.

1784 PICTS ACT

The Act of 1784 introduced changes mainly in the Company’s Home Government in London. While the patronage of the company was left untouched, all civil, military and revenue affairs were to be controlled by the Board of Control consisting of 6 members. In India, the chief government was placed in the hands of Governor-General and council of three. The Presidencies of Madras and Bombay were subordinated to the Governor – General and Council of Bengal in

28 all matters only covenanted servants were in future to be appointed members of the Council of the Governor-General.

CORNWALLIS REFORMS In 1786 Lord Cornwallis succeeded Sirjoha Macpherson as the governor-general of India. He was the first governor-general of India who had to work under the Pitt’s India Act. He was a nobleman of high rank and aristocratic disposition. In India he attained success by following the policy of Warren Hastings. He reformed and reorganized the administration of the company. ADMINISTRATIVE REFORMS: The servants of the company were corrupt, incompetent and irresponsible persons. Cornwallis realized that the low salaries of the company’s servants encouraged them to indulge in various kinds of private trade to augment their income. So Cornwallis decided to raise the salaries of the servants of the company. The employees of the company were prohibited to carry on private trade. He had a low opinion about the character, ability and integrity of the Indian people. So he sought to reserve all higher posts for the Europeans. He also introduced some reforms in police department. The districts were divided into small thanas and an Inspector was appointed in each thana. A superior officer with the designation of superintendent of police was appointed in each district to supervise the work of the Inspectors. He raised the salaries of all police officers. He separated the judiciary from executive as a result equal justice could be dispensed to all the people.

29 JUDICIAL REFORMS: Cornwallis introduced some significant reforms in the sphere of judicial administration and tried to complete the unfinished work of Warren Hastings. During his period number of revenue districts was reduced from 35 to 23 in the Presidency of Bengal. The collector was the head of the district. In 1787 district courts were presided over by the collector. The collectors were vested with magisterial powers and empowered to administer criminal justice. In 1790-92 further changes were made in the administration of criminal justice. The Faujdari Adalats of the districts were abolished and in their place four circuit courts were established at Dacca, Patna, Calcutta and Murshidabad. These courts were presided over by two covenanted servants of the company who decided the cases with the help of Qazis and Muftis. The Sadar Nizamat Adalat was again shifted from Murshidabad to Calcutta. The Muhammadan Judge of this Adalat was removed and in his place the Governor General and Council presided over the Sadar Nizamat Adalat. By 1793 the judicial reforms of Cornwallis took the final shape and were embodied in the famous Cornwallis Code. Separation of powers was the basis of the new reforms. The collector was deprived of all his judicial and magisterial powers. The judges tried all civil cases in the districts. The collector was required to look after the administration and to realise the revenue of the district. Under the subordination of the District Judge Civil and criminal courts of Lower grade were established in which the Munsif and Sadar Amin tried the minor cases of the people. Appeals could be made to district court against the decisions of the Lower Courts.

COMERCIAL REFORMS: Cornwallis took some steps for the improvement of trade and commerce. Since the establishment of Board of Trade at Calcutta, the company had procured goods through European and Indian contractors. These contractors often supplied goods at high prices and of low quality. Cornwallis

30 stopped the practice of procuring supplies through contracts and started the practice of procuring supplies through Commercial Residents and agents. These Commercial Residents fixed the prices of goods with the manufacturers and also made advances to them. Cornwallis reduced the members of the Board of Trade from eleven to five and placed it under the control of the Calcutta Council. He also issued instructions that the merchants would not be oppressed.

1793 CHARTER  

In 1793, the Company’s commercial privileges were extended for another twenty years. The power which had been specially given to Cornwallis on his appointment to over-ride his Council was extended to All future Governor – Generals and Governors.

1813 CHARTER 

By this Act, the company was deprived of its monopoly of trade with India but it still enjoyed its monopoly of trade with China and the trade in tea



The Act continued to the Company for a further period of twenty years the possession of the territories and revenues.



It contained a clause providing for a sum of one lakh of rupees annually for the spread of education. 1823 CHARTER



It completed the introduction of free trade in India by abolishing the company’s monopoly of trade in tea and trade with China.



All restrictions on European immigration into India and acquisition by them of land and property in India were removed.

31 

The Act centralised the administration of India. The Governor-General of Bengal became the Governor-General of India (William Bentinck was the first Governor-General of India).



The Act also brought about legislative centralisation. The Governments of Madras and Bombay were drastically deprived of their powers of legislation.



The Act enlarged the Executive Council of the Governor General by the addition, of the fourth member (Law member) for legislative purposes. Macaulay was the first law member.



Section 87 provided that ‘no Indian or natural – born subject of the Crown resident in India should be by reason only of his religion, place of birth, descent, colour, be disqualified for any place of office or employment under the company.

1853 CHARTER Provision for open competition was first made by the Charter Act of 1853. The old powers, rights, and privileges of Court of Directors to nominate candidates for admission to Haileybury were to cease in regard to all vacancies which occurred on or after April 30, 1854. This Act provided that subject to such regulations as the Board of Control might make from time to time ‘any person being a natural born subject of Her Majesty’ who may be desirous of being admitted into the said college at Haileybury shall be admitted to be examined as a candidate for such admission. 

The appointment of civil servants was to proceed from the Court of Directors as before, but it could appoint only such person as were declared entitled under the regulation so framed by the Board of Control.



A five member committee with T.B. Macaulary as Chairman was appointed to decide the preconditions and mode of examination.

32 

The maximum age for admission was at first 23 (the minimum being 18), in 1859 it was lowered to twenty two and selected candidates were to remain on probation in England for one year.



In 1866, the maximum age was further lowered to 21 and the probationers had to go through a special course of training at an approved university for two years.

It was extremely difficult for Indians to pass this examination. The journey to England was not only expensive and unfamiliar but, in case of the Hindus, was frowned upon by the more orthodox leaders of the community. To compete with the English boy since an examination conducted through the medium of English in an English University was indeed a formidable task. It was no wonder, therefore, that comparatively few Indians were successful.

BIBILIOGRAPH 

INDIAN LEGAL AND CONSTITUTIONAL HISTORY by M.P.JAIN, 7th Edition,



published by LEXIS NEXIS,20016 INDIAN LEGAL AND CONSTITUTIONAL HISTORY by R.K. AGARWAL published



by MUDRAN MAHAL https://learn.culturalindia.net/brief-history-british-east-india-company-essay.html.