1) Introduction

In 1583 A.D three (3) English merchants Ralph Fitch, James Newsberry and William Heeds
visited India. Britishers got information about the wealth of India from the writings of Ralph
Fitch who travelled throughout India. The information about the wealth of the country inspired
the Britishers to have trade relation with India.

On 24th September 1599, some merchants of London held a meeting under the chairmanships of
the city mayor. The object of the meeting was to constitute themselves into a company for
starting trade relations with the east Indies. They formed a company under the name and style
“The Governor and Company of merchants of London trading into the East Indies”. The said
company is known as East India Company. The Company applied to the crown for permission to
trade with East Indies. On 31st December 1600 Queen Elizabeth issued a Charter and there by
incorporated East India Company.

History comprises of the growth evolution and development of the legal system in the country
and sets forth the historical process where by a legal system has come to be what it is overtime.
The legal system of a country at given time is not creation of one man or of one day but is the
cumulative fruit of the endeavor experience thoughtful planning and patient labor of a large
number of people through generation.

With the coming of the British to India the legal system of India changed from what it was in the
Mughal period where mainly the Islamic law was followed. The legal system currently in India
bears a very close resemblance to what the British left with.

As per the need of the changing times the changes and amendments were made but the procedure
which is followed not has its root in the era of British India. Little did the traders of the English
East India Company (EIC) while establishing their trade in India knows that they would end up
establishing their rate for about 400 years here. But the evolution of law as it today did not came
about in one go altogether. It was the presidency towns individually that were first affected by
this change in hands of the governance of India after which the steps towards amalgamation of
the judicial system were taken by the Charter 1726 and 1753. To improve upon this under the
regulating Act 1773. Supreme Court in the presidency town and then under the Act of 1798 the
recorders Court at Madras and Bombay were established. This were ultimately replaced by the
establishment of High Court Act 1861 which are still running in the country it was only after
Independence in 1950 that the Supreme Court was established reforms and codifications were
made in the pre-post-independence era and are still continuing.
 2) THE HISTORY OF THE LEGAL SYSTEM IN BRITISH –INDIA OPENS WITH THE ESTABLISHMENT OF EAST
INDIA COMPANY –

The company incorporated in England by the crowns Charter of 1600. The company was given
executive trading right in Asia including India, Africa and America. All the members of the
company constituted themselves as general court it 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 the court of director were to be elected
by the general court for 1 year but any of them might be removed from his office even before the
expiry of his term of office by the general Court.

2.1) OBJECT OF THE COMPANY –

Actually the company appears that to promote British trade and commerce in Asia. The company
was conferred on only those powers which were necessary to regulate its business and maintain
discipline amongst its servants and they were not at all adequate for governance of any territory.

But the company came to India and they were found the Indian Kings disunited and unaware of
the Modern Politics. They realized they can dominate the territory in India the company
gradually and gradually inclined to acquire territories in India. The company thereby could
market for its goods. At the time of the incorporation the object of company was commercial but
gradually and gradually its object became political also.

In early days the administration of justice in the settlement East India Company was not a high
order. There was no separation between the executive and the judiciary the judiciary was under
the control of the executive the judges were not a law experts. The company gave lesser
importance to the judicial independence fair justice and rule of law. The administration of justice
and developments of courts and judicial institution during this period may discussed under the
following headings –

 1600 to 1726 is the first period.

 1726 to 1773 is the second period.
 Administration of justice and development of East India Company – presidency town.
 3) ADMINISTRATION OF JUSTICE IN SURAT –
The East India Company established Ist factory in Surat in 1612. British crown sent an
ambassador Sir Thomas Roe to the Mughal Emperor to request to grant certain facilities to the
English man in India. In 1615 the Mughal Emperor on the pleading of Sir Thomas Roe issued a
Firman, the Mughal Emperor allowed the Englishman to live according to their own religion and
laws and to settle dispute among themselves by their president, however the disputes between on
Englishman and an Indian were to be decided by the native Judges.

3.1) ADMINISTRATION OF JUSTICE IN MADRAS AN INTRODUCTION

Justice is very subjective. It depends upon the outlook of the judge. Judge ought to be free from
different prejudice consisting class, caste, religion, and region and race and so on. Unfortunately
it was never objective and justice always carries some kind of prejudice. However, justice system
also depends upon the mode of administrative government structure. For instance, the mode of
government during Ancient and Medieval India was the autocratic government, but during the
British govemment the mode of government was more or less democratic set-up. In autocratic
system, the judiciary system totally depends upon the emperor or ruler while in the democratic
system judge can also play a very important role in dispensing justice.

 The English company was having a more or less democratic set-up based on the British
government system. Inquiry system and trial system was a great feature of the East India
company judicial policies. In some cases, towards Indians it was also based upon the race
system in which they gave lot of importance to the Europeans but it also gave lots of
importance to the Indian ignoring caste and class prejudice. As a result, the English
Company played a very significant role in the field of law, justice, crime and punishment.
The occupational castes had a great chance to empower themselves by getting the secular
kind of justice system. During the 17 th and 18th centuries, at Madras under the English
Company, the processes of investigations were democratic and labourer had every option
to complain against the higher classes. As result of this, the labourer castes were much
benefited from the new constitutional legal structure of the British. According to
C.K.Mohan Rao, the British Company was politically strong and they brought new
constitutional structure of their own in India with what they have had an experience in
England to suit their political ends in India. As they felt difficult to ignore the social
inheritance of India, due importance was given to the Indian subjects in their political as
well judicial administration in India.1 He further states that The English law was based
on the principle of equity and good conscience. In exercise of their discretion they even
applied principles of Hindu and Muslims laws and even customary laws in many

1
C.K.Mohan Rao,An analytical study of British judicial administration under East India company in
madras presidency ,Paper presented to the 281
h annual session proceedings of south Indian history
congress,2008
 ways.2H.D.Love quotes Salmon's description of Madras and he also pointed out about the
affairs of the judicial affairs. He says that the Governor and the Council directed the
company's affairs, and they inflicted any corporal punishments, short of life and
dismemberment upon such Europeans as were in their service, and dispose of all places
of profit and trust. There was also a court of mayor and aldermen held twice at townhall,
where the Asiatic inhabitants sue for their debts, and implead one another, but the civil
cases among the Europeans were usually decided by a jury in the court of the Judge
Adocate, to which belong two or three attorneys, and as many serjeants or bailiffs who
execute their processes, and make arrests for debt, &c. There were also justice of peace
who hold their sessions in the Black Town, and decide criminal matters among the Indian
inhabitants; and though they do not give judgments in capital cases, yet he has known
them proceed against the natives so far as the cuttings off their ears in the pillory, and as
much as he remembers, the offence was stealing people's children to make slaves of
them. There was also a court of admiralty for maritime affairs, and the Governor
sometimes suffers the officers of the land forces to hold Courts- martial, and inflict
punishments on the soldiers .As for capital offenders, they were imprisoned, till they can
be sent to with rice and water; and thus trivial offenders, and those whom the government
have any jealousy of, were sometimes punished; but death itself would be more eligible
to most men, for they neither suffer them to be relieved by their friends, or any
conversation with them, that there might be no complaints of hardships carried to Europe.
3Records mentioned that a watchman complained against Berry Timapa, a merchant who
had taken forcibly his dwelling house during the time oflate president in which he and his
forefather had lived for sixty years. The company issued summonses unanimously to all
the heads castes of the company's merchants and the company had taken the following
decisions;
 Watchman and his ancestors had been in peaceable possessions of this house at least sixty
years.
 Watchman 's father had made the house from the ground upon a spot allotted to him by
Timapa's father who was at that time entrusted by the Agent and the Council as principal
inhabitant of the place to parcel out the ground in the Black Town to such persons who
were willing to reside and build in it which was all the titled Timapa could any ways
pretend to the aforesaid house and ground.
 Calloway Chitte, one of the Joint Stock Merchants particularly declares that the house he
now lived in and enjoyed was built by his father in the same manner on a piece of ground
given him by Timapas ancestors and said to be permitted to pretend a title to such built
upon ground allotted by his father and most of the best houses in Town will fall to
Timapa by the same title.

2
Ibid
  Upon full examination of the matter we did not find that Timapas ancestors had any titles
to this ground in dispute but was only entrusted by the Agent and the Council to dispose
of it as aforesed.
 Company found that Timapa by false witnesses several other subtle practices did impose
upon the Justice of the Choultry so far as to get their consent to turn the poor fellow out
of his habitation and to make a bill of sale for the disposal of it to another person, which
he did for fifty pagodas.
 Resolved that this house in dispute standing in the weaver's street joining the house of
Poly Chitte to the westwaed rightfully belonged to the Watchman whose ancestors built it
so many years ago the said Watchman acknowledged paying quietly rent to the company
according to the established rent rule.3
 Orderd that the Watchman be immediately put into possession of the Said house and
Timapa be obliged to repay the fifty pagodas to the person to whom he sold it by a false
title.
The above narration of the case shows the democratic process of investigation
regarding justice to the labourer.

In 1639 Francis Day acquire a piece of land from a Hindu Raja for the East India Company and
constructed a fortified factory were Englishman and other Europeans and therefore the area of
the factory came to be known as while town and the people residing in the village Madras,
Patnam were mostly Indians and therefore it came to be known as Black Town. The Whole
Settlement Consisting of white town and black town came to be known as Madras. In judicial
administration in Madras divided in 3 stages. First, Second and Third.

3.2) History of Judiciary System in Madras

The early centers of British power in India were the three Presidency Towns of Madras,
Bombay and Calcutta which were founded by the British and which grew almost from a
scratch. The year 1726 constitutes a landmark in the Indian Legal History as it gave new
orientation to the judicial system in the three Presidency towns. 4The judicial system at
the Presidency towns was designed primarily to administer justice to the Englishmen.
But, with the passage of time, the Indian population of these settlements increased and,
therefore, adjustments had to be made in the judicial system with a view to providing for
the administration of justice to these people as well. Despite this fact, however, the
judicial machinery in the Presidency Towns remained heavily oriented towards the
English legal system. Madras was the first Presidency Town to be established by the
British in India. Here, the judicial institutions grew in three stages before 1726. In the
first stage, from 1639 to 1665, administration of justice was in an extremely elementary

3
Diary and consultation book,R.ft.st.george
4
Jain,M.P,outlines oflndian legal &constitutional History,published by Wadhwa and Company, Nagpur
sixth edition,reprint,2007 ,p,l2.
 state. The second period, which runs from 1665 to 1686, saw the establishment of the
court of the Governor and Council. The significant event during the third period from
1686 to 1726 was the creation of two courts: the Admirally Court and the Mayor's Court.5

4. Growth of Judiciary System in Madras

4.1) FIRST STAGE – 1639-1665
Madras was founded in 1639 by Francis Day who acquired a piece of land on the Eastern
sea-coast from a Hindu Raja. 6 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 fort. 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 owns came to be known as Madras.7

4.2) Administrative Set-up

Foxcroft, was the first Agent to be created governor of Fort St. George, a title which was
transmitted to a long line of distinguished successors. To modem occupants of the
gubernatorial chair it is probably unknown that they owe their designation to a Madras
murder. Such is the fact; but, to explain the sequence of events, it will be necessary not
only to advert to the judicial powers exercised at Fort St. George, but to enumerate the
successive charters8 from which those powers were derived. 9

Charter of Elizabeth, 31st December, 1600.-This, the earliest charter of the Company,
constituted the 'Governor and Company of Merchants of London Trading to the East
Indies' a body corporate, and granted it the exclusive right of trading to the laws for its
own government and for that of the factors, masters and mariners employed in voyages,

5
Ibid,p, 13.
6
H.D.love,Vesgtiges of old Madras,1640-1800,vol-l,Asian Educational Services, New Delhi, 1996,
p, 17. Sometime after making the grant, the Raja was overthrown by the Nawab of Golconda,. In 1672,
the Britiswh and the Nawab agreed that the Madras Town would "wholly remain forever under the
English", Ibid., 345. In 1687, Golconda was conquered by Aurangzeb but the Status of Madras remained
unaffected, ibid, 513.
7
English", Ibid., 345. In 1687, Golconda was conquered by Aurangzeb but the Status of Madras remained
unaffected, ibid, 513.
8
° Charters granted to the East India company. Printed for the Company, 1774 Charters relating to the East
India Company (John Shaw, Madras, 1887) is a reprint, with additions, of the above.
9
H.D.love, Vesgtiges of old Madras, 1640-1800, vol-1 ,Asian Educational Services,New Delhi,
1996,p,271.
provided such laws were not repugnant to the laws of England. It also conferred authority
to punish offenders by imprisonment or fine.10

Charter of James 1., 31st May, 1609. -This charter confirmed and extended that of
Elizabeth.

Charter of Oliver Cromwell, 1657.- No copy of this charter has yet been traced(Magna
Carta)

Charter of Charles II, 3 rd April, 1661. -This important charter gave the Company
authority over all forts and factories in the East Indies, empowered it to appoint
Governors and other officers, and authorized, the Governor and Council of a place to
judge all persons living under them in all causes, civil or criminal, according to the laws
of England, and to execute judgement. The Company was given power to send out ships
or war, men and ammunition, to erect fortifications, to provide men for their defence, to
govern the force by martial law, and to make peace or war with any nonchristian power.

Charter of Charles II., 9th August, 1683. -This charter authorized the establishment at
any factory of a Court of Judicature, consisting of one person learned in the civil laws
and two merchants. It was designed primarily as a Court of Admiralty.

Charter of James II., 12th April, 1686.-this charter confirmed those of 1661 and 1683,
and empowered the Company to appoint admirals and other sea officers, who might raise
naval forces. The Company was also authorized to coin any kind of money issued by the
princes of the country.

An important charter which was issued by the Company in 1687, for establishing a
Mayor and Corporation at Madras, will be considered later; and subsequent royal charters
granted to the Company will be enumerated in due course. From this brief abstract it will
be seen that the charters of Elizabeth and James I. contemplated merely the framing of
by-laws and the maintenance of discipline during voyages. Concerning the terms of
Cromwell's charter we are ignorant, but it is probable that, prior to the issue of the charter
of 1661, the Agent and Council possessed no judicial authority over the inhabitants but
such as was derived from the native suzerain.

Charter of Charles II., 3rd April, 1661 ;This important charter gave the Company
authority over all forts and factories in the East Indies, empowered it to appoint
Governors and other officers, and authorized, the Governor and Council of a place to
judge all persons living under them in all causes, civil or criminal, according to the laws

10
Ibid,p,271.
of England, and to execute judgment. The Company was given power to send out ships or
war, men and ammunition, to erect fortifications, to provide men for their

defence, to govern the force by martial law, and to make peace or war with any
nonChristian power.

Charter of Charles II., 9th August, 1683;This charter authorized the establishment at
any factory of a Court of Judicature, consisting of one person learned in the civil laws
and two merchants. It was designed primarily as a Court of Admiralty.

Charter of James II., 12th April, 1686.-this charter confirmed those of 1661 and 1683,
and empowered the Company to appoint admirals and other sea officers, who might raise
naval forces. The Company was also authorized to coin any kind of money issued by the
princes of the country.

An important charter which was issued by the Company in 1687, for establishing a
Mayor and Corporation at Madras, will be considered later; and subsequent royal charters
granted to the Company will be enumerated in due course. From this brief abstract it will
be seen that the charters of Elizabeth and James I. contemplated merely the framing of
by-laws and the maintenance of discipline during voyages. Concerning the terms of
Cromwell's charter we are ignorant, but it is probable that, prior to the issue of the charter
of 1661, the Agent and Council possessed no judicial authority over the inhabitants but
such as was derived from the native suzerain. The mode in which justice was
administered is nowhere described, but it can be inferred from sundry allusions in the
records.

The Company Dispense Justice the Occupational Caste Groups (Women and a
Slave Girl) in the year 1641 to1665.

The case of 1641, where a native woman was murdered by a man of the same race, has
been mentioned on an earlier page. Some sort of trial took place, and the finding was
immediately reported to the Naik, who commanded that justice should be done according
to English law. The criminal was thereupon hanged. In 1642, when Antonio Mirando
slew a British soldier, the Council was unwilling to deal summarily with European
subject of a foreign power. The Naik, however, insisted, on his immediate execution, and
Mirando was accordingly shot. In 1644, when Sergeant Bradford inadvertently caused the
death of a native, the case was referred to the principal inhabitants, why brought in a
verdict, under native law, of accidental death. Offences by British subjects in which
Indians were not concerned were dealt with by the Agent in Council. Thus Thomas Paine
 and Thomas Morris, found guilty of sedition, were punished with the decided number
oflashes.11

From a very early period, and probably from the first settlement of Madras, justice was
administered to the Indian inhabitants by a native Adigar, or Governor of the Town,
Sitting at the Choultry or Town -house. Kanappa, a Brahman, was appointed to this post
by Ivie but his father held office before him. President Baker ousted Kanappa, and
appointed Captain Martin and John Beigh to sit as magistrates during alternate weeks. Sir
Edward Winter, who came out armed with the charter of 1661, reverted to the old plan,
and appointed Timmanna and Veroan to rule the town. Foxcroft, however, dismissed the
two natives, and gave judicial control to William Dawes. About 1665 a madras slave-girl
came by a violent death, and her mistress, Mrs. Ascentia Dawes, was accused of the
capital crime. Uncertain of their powers, the Agent and council asked for instruction from
England. The Company replied as follows:-

The Company to Fort St. George. 'We are very sorrie for that Inhumane Act Perpetrated
by Mrs. Dawes in Murthering of her Servant, which at present is under our consideracion,
to give you Advice and Orders how to proceed with her and othes (if any) that were
assisting to her in the Murther, And how to prosecute such persons in the future that shall
Committ the like horrid Actions within the Lymitts of our Fort and Towne of Madrass.
Our Shipp, on which we send you this our letter, being so suddainely to depart, we know
not whether we shall give you directions how to prosecute her. But if we should not
before finishing hereof, you may expect all things at Large in relacion thereunto by our
next (Let Bk., voL4, 1h March, 166 516). After deliberations, the Company resolved
that, under the authority given by the charter of 1661, the Agent at Fort St. George should
be created Governor, with judicial power to try this and similar cases.

4.3) Judicial System

Very meagre information was available regarding the early judicial system in the
settlement. Justice was dispensed to the inhabitants of the White Town by the Agent and
the Council. The scope of their judicial power was very vague and indefinite and,
therefore, they hesitated in handling serious criminal cases and very often referred such
cases to the Company's authorities in England for advice. As communication between
India and England in those days took a long time, administration of justice became very
dilatory and unsatisfactory. The only available account of a case disposed of during this
period is that of two Englishmen who were found guilty of sedition and were punished
with the lash.12

11
lbid,vol,l,p,273.
12
LOVE,ibid,p, 273
Though the Raja had left the responsibility to administer the Black Town to the English,
they did not evince much interest in this respect at this time. No regular judicial tribunal
was established and the old, traditional, indigenous system, which had been operating in
the Village of Madraspatnam before the advent of the British, was allowed to continue.
Thus, a Choultry Court with Adigar13 as the judge decided small civil and criminal cases.
Adigar Kanappa who had inherited the office from his father abused his power at the
Choultry in various ways, the most serious of which was that he connived at stealing of
children for being sold as slaves. He was, therefore, dismissed from office in 1652, and
two English servants of the Company were appointed to sit at the Choultry. 14The
Choultry Court was merely a court of petty cases. No other court was created for trial of
those civil and criminal cases which fell beyond the competence of the Choultry Court.
Not much information is available about the method used for the purpose. Some vague
ideas can, however, be formed from sundry references to some cases in the records of the
period. In 1641, an Indian was accused of murdering the woman with whom he had been
cohabiting. After some sort of a very informal inquiry, he was found guilty of the
offence. No formal trial was held; a few questions were asked; his house was searched
from where clothes and jewels of the deceased woman were recovered and this was found
sufficient to condemn him,The Agent communicated the finds to the Raja who ordered
the justice be done according to the English law and so the accused was hanged. In 1642,
a British soldier was killed by a Portuguese. The Council was unwilling to deal
summarily with a subject of a European power. The Raja, however, ordered that the
accused be executed and, therefore, the man was shot dead. In 1644, Sargeant Bradford
killed a native by accident. Instead of trying Bardford themselves, the Agent and Council
referred the matter to the principal inhabitants of the Black Town who brought in a
verdict of death by accident. 15 This procedure appears to have been adopted presumably
because the crime had been committed against an Indian.

No established procedure- These accounts reveal several things. First, there was no
fixed form of trial procedure and, usually, the methods resorted to for the purposes were
informal. Trials of serious crimes committed by the Indians, or by others against them,
appear to have been conducted on an ad hoc basis and the procedure for the same varied
from case to case according to the expediency obtaining in the circumstances of each
case. Secondly, the Agent evinced some interest when a serious crime was committed in
the Black Town. In capital cases committed by persons other than the British, reference
was usually made to the Raja who invariably ordered that the accused be punished
according to the English law. It is possible that this practice arose because the Agent and

13
Adigar was the village headman. The term adigar is derived from the term 'adhikari' meaning one who
has authority (village Munsiff).
14
FOSTER, English Factories. (1637-41),P, 315:
15
LOVE,ibid,pp, 42, 272-3;
Foster,ibid,p, 315
 Council lacked power to inflict death sentence under the Charter of 160016 and so they
could inflict such a sentence only under the authority of the local sovereign. It may also
be that the British administrators did not want to cause any annoyance to the raja, and
executing an Indian without his prior consent might have created some misunderstanding
between him and the British. This situation however did not last very long.
This period is, therefore, conspicuous by the absence of any systematic and regular
administration of justice. The judicial methods were elementary. The system, if it can be
called a system at all, consisted of two bodies to administer justice, the Agent and
Council for the White Town and the Choultry Comi for the Black Town. The former was
not efficient as it was a very hesitating sort of court and was not sure of its power. The
Choultry Court could decide only petty cases; for trial of serious cases arising in the
Black town there was no established procedure or forum.

CHARTER OF 1661 –

It was granted by the British Crown it conferred board powers on the East India Company. The
charter authorized the Governor and Council of Englishman inhabiting the settlement of the
company. The Governor and Council of each factory to hear and decide all type of civil and
criminal cases. Including the cases of capital offences also and it could award any kind of
punishment. Including death sentences.

Under the Charter of 1661, the cases of Indians inhabiting in the settlement of the company
were to be decide according to English law. The powers conferred on the company could only be
exercised by the Governor 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.

4.4) SECOND STAGE – (1665 – 1686) –

Extensive power and delay in Justice

The Charter of 1661 which had conferred extensive judicial power on the Governor and
Council of a settlement, 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. A criminal case in 1665, however, proved to be the turning point in this
respect. One Mrs. Acentia Dawes was brought for trial before the Agent and the Council
on a charge of murdering her slave girl. As was their usual practice, the Agent and the
Council, being uncertain of their powers in such cases,referred the matter for advice the
Company's authorities in England. The Company decided to make the Charter of 1661

16
It does not appear that the Company conferred power upon the Agent and Council under the
Commission of 1623. Even if it had, the power could cover only the Company's British servants and not
the Indian inhabitants of Madras;
effective in Madras, and, to this end, raised the Agent to the status of the Governor.
17
This step was necessary because the Charter vested judicial power in the Governor, and
not in the Agent, and the Council. One of the effects of applying the Charter of 1661 was
that the judicial power of the Governor and the Council became extended not only to the
Englishmen but to all living in the settlement. The Agency of Madras thus became the
Presidency in 1665. Soon, thereafter, the Governor and the Council hied Mrs. Dawes
with the help of jury. Both grand and petty juries were used. The petty jury consisted of
six Englishmen and six Portuguese. This was the first jury trial held in Madras. After
hearing the witnesses, the jury retired to consider its verdict. The foreman sent a note to
the court saying that the jury found her guilty of the murder, "but not in manner and
form" and so desired directions from the court. The Governor and Council returned the
answer that the jury must bring in a verdict of 'guilty' or 'not guilty' without any exception
or limitation.Quite unexpectedly the jury returned the verdict of 'not guilty' and Mrs.
Dawes was acquitted. None of the Governor and the Council was qualified and
competent to reverse the verdict of 'not guilty' and Mrs. Dawes was acquitted. None of
the Governor and the Council was a lawyer by education, training and practice, and so
these people felt difficulty in meeting the legal complications which arose in the trial.
They did not know what to do when the jury brought in such an expected verdict. They
expressed their predicament to the Company in a letter in which they said that in the
particular trial they had acted according to their best judgement but "if any like case shall
occur,we shall need the direction and assistance of a person better skilled in the law and
formalities of it than any of your servants here are". 18 This vividly brings out the
difficulties which non-lawyer judges encountered in administering justice without any
legal assistance. But, in spite of this appeal, the Company did not send any lawyer to
Madras. Justice continued to be dispensed by the Governor and the Council according to
their wisdom and commonsense.19 Needless to say, the quality of justice could not be of a
high order in these circumstances. The Charter of 1661 had stipulated the administration
of English law but, as none of the judges had even an elementary knowledge of this law,
this clause in the charter remained a dead letter for all practical purposes.

Justice did not gain much by the establishment of the court of the Governor and the
Council, as it did not function regularly or efficiently or earnestly. In criminal cases,the
accused persons had to wait for long before they were put on trial. The main reason for
the delay was that the Governor and the Council, like their predessors, the Agent and the
Council, being conscious of their lack of legal knowledge, hesitated to decide criminal

17
Letter Book, vol. 4, March 10, 1665.
18
LOVE, pp, 274, 275.
19
The administration of justice was not fully professionalized in madras until the creation of the Supreme
Court in 1802.
cases without consulting the Company's authorities in England, and in those days
consultation between Fort St. George and London involved the inordinate delay.

There is a case on record, dated January 31, 1678, in which for 31 months in a pitiable
condition without trial as his case had been referred to London. 20 In yet another case, a
Portuguese inhabitant charged with the murder of his servant, "a black christian', was
confined to prison and consultations were going to between the Company and the Madras
Council which had asked the Company "to send out a sufficient power to proceed against
him". These cases reveal very deplorable state of affairs in the area of law and justice.
"Want of a due course for the administration of justice" gave rise to many complaints and
refonn of the judicature thus became a great public necessity. A reference to the Charter
of 1661 would show that it was not the lack of adequate judicial power, but hesitation
bordering on apathy to use that power, which was responsible for this sorry state of
affairs.

Streynsham Master who was the Governor of Madras from 1667 to 1681 took the first act
which was to reorganize the Choultry Court by increasing the number of Justices from
two to three, and providing that not less than should sit for the trial of causes and
registration of bills of sale of land and other property. The following extracts illustrate the
composition and duties and of the Court;

 That the printed Directions made by the court of Committee in London the
18th December, 1667 for the Christian and sober camportment of all
company's servants hang up in the Chappel and Dinning Room to be observed
accordingly. 21
 That the council do meet to consult of the company' s affairs every Monday
and Thursday and after the business shall require and this entry was to be
taken by all council as a due summons, yet the secretary was hereby ordered
himself in person, or by one of the factors or writers under him to summon all
the members of the council every Monday and Thursday about 8 o'clock in the
morning and every time any one of the council shall be absent, the secretary
was hereby required to enter at the beginning of such Counsultation these
words. The whole council being duly summoned.22
 For all monets to be paid out cash, that the second or Book keeper with the
agent leave, do draw bills directed to the agent, or who shall keep the cash
upon which bills he was to express the partys name to whom and account
upon which the money was to be paid which bills the second was first to sign,

20
LOVE, op, cit., 407.
21
Record ofFort St,.Geroge,Diary and consultation book,l678-1679,p,6.
22
lbid,p,6
 leaving room for the Agent, as was practised at Surat, and the said bills were
to be read and passed in the council every council day after any such were
drawn and the secretary to note the same accordingly. 23
 That the general books of accounts be balanced the last day of April yearly
and kept accordingly to the method used at surat a pair of which books letter
method were delivered to method Joseph Hynmers for the directions
therein. 24
 That the account of salary of the company servants that served them in their
mercantile affairs, be kept and entered in the general books by the book
keeper or second, accordingly to the company printed rules, and not entered
in a pair of books apart by the purser.25
 The warehousekeeper should keep records.26
That the Choultry justice, Customer, or fourth in council do take care to
receive and collect all the rents and revenues of the town of Madrasspatnam
(Except that of mint) and kept two distinct books of the same, one of the
account of all petty land customers received of the Indians and others, upon
goods imported, at the company.27
 That the customers, mint master (when there was one in that office) and pay
master or any two of them, do every Tuesday And Friday sat in the Choultry
to do the common justice of the Town, as usual, and do take care that the
Scrivan of the Choultry do duly Register all sentences in Pmiuguese as
formerly, and that there be an exact register kept of all alienations, or sales
of slaves, houses, garden, boates, ships and so on. The company due for the
same to be received by the customers and the bills or certificates such sales
to be signed by the persons in the offices aforesaid, or any two of them.28

Streynsham Master who was the Governor of Madras from 1667 to 1681 took
steps to put life, vigour and efficiency into the Court of the Governor and
Council. So that it could function more regularly and properly in terms of the
Charter of 1661. In March, 1678, the Governor and Council resolved that they
would sit as a court on two days in a week to administer justice in all cases,
civil and criminal, according to the

23
Ibid,p,6.
24
Ibid,p, 7.
25
lbid,p, 7.
.
.
.
26
Ibid,p,7
27
lbid,p, 7
28
lbid,p, 7
 laws of England with the help of jury of 12 men.29 This court was designated
as the High Court of Judicature and was fonnally inaugurated on March 27,
1678, at a public function. Along with this, the Choultry Court was also
reorganized.45 Henceforth, it was to consist of the Company's servants (mint
master, customer., of peace, civil action up to 50 pagodas,46 and cases of a
higher value with the consent of the parties. All other cases, and appeals from
the Choultry Court, were to be heard by the Court of the Governor and the
Council with the help of jury. A hierarchy of courts was thus
established in Madras with their respective jurisdictions demarcated. The
Choultry Court was to take cognizance of small matters; The Governor and
Council were to have original jurisdiction in matters beyond the purview of,
and appellate jurisdiction in cases decided by, the Choultry Court. After these
steps had been taken, the two prisoners mentioned above were brought to trial
before the High Court. The Englishman was found guilty of manslaughter in
self-defence and, accordingly, his goods and chattels were foreteited to the
King. The Portuguese was found guilty of murder and was sent to England in
pursuance of a petition on his behalf by the Portuguese inhabitants of Madras.
Streynsham Master gave order to follow the such rule in the justice of the
administration which are following;
 That the Governor and his Council do sit in the Chappel in the fort upon every
Wednesday and Saturday to hear and judge all causes.
 That the Justice and Justices of the Choultry, and our Constable Bayly, or
Officer under them, shall execute all orders, writs and summons from the
Governor and the Council for returning of Jury's Executions after judgment,
apprehension of criminals and such like ...
That all Trials in the said court be by Jury's of 12 Men and that the Jury's be
returned by the Justices of the Choultry ...
 That there is a Clarke of the Court and the same to be also Clarke of the
Peace. Clement King is nominated and appointed.
 That there be an Officer of the Court, and the same to assist the Justices,
Philip ashton has nominated and appointed.
 That there be a Marshall to take-charge of the pnsoners. Robert Bayly is
nominated and appointed ...
 'Excepting, and it is hereby ordered, that all causes of small misdemeanour,
matters of the peace, and actions of Debt of the value of 50 pagodas New and
under, shall be examined and decided by the Justices of the Choultry as
formerly, and also all other Cause of a higher or greater value by consent of
the parties; in all which cases (if any parties find themselves aggrieved)
Appeals are or shall be allowed to the Court of the Governor and the Council,
29
Ibid,p, 7
 there to have a Trial by a Jury, and according to the verdict shall have
judgment and Execution awarded.30

4.5) THIRD STAGE (1683 – 1726) –

Admiralty Court

The monopoly of trade granted to the company by the Charter of 1600 was being infringed on a
large scale by 'interlopers'- independent, merchants, indulging 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 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. The court was to consist of a person 'learned in the civil
law' and two merchants appointed by the Company. It has to have power to hear and detennine
all cases, men;antile and maritime in nature, concerning persons within the charter limits of the
Company; all cases of trespasses, injuries and wrongs, 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 and good conscience and the laws
and customs of merchants. It could settle its own procedure subject to the directions of the
Crown, if any.

The same provisions were repeated in a fresh Charter issued by James II on April12, 1686. The
reason for the Charter to prescribe a 'civil' rather than a 'common' lawyer as the head of the
Admiralty court was that the Admiralty law was of an international character as it was founded
on the Civil law and law of nations rather then the Common law of England, "for ships are no
respecters of frontiers". 31 Further, in 1683, the English Common law was practically devoid of
rules governing mercantile cases. Lord Mansfield worked the subject out of century later. 50 The
mercantile law in 1683 could be regarded as an amalgam of mercantile customs, the base of
which was Roman Law, Similarly, maritime law was based on admiralty principles which
involved a knowledge of Roman Law. The Charter desired the appointment of a civil lawyer as
Roman Law formed the basis of mercantile as well as maritime law. The Chief Judge of the
Admiralty Court was known as the Judge-Advocate.

Under the above provisions, a Court of Admiralty was started in Madras on July 10, 1686. It
consisted of three civil servants who were members of the Governor's Council. Occasionally, the

30
Pub Cons., Vol. II, March 18 1678, Love op, cit, I, 405; WHEELER, op, cit., 55.
31
SLESSER, The Administration of Law, 37
Governor and the Council held trials to enforce 'law martial' under the authority of the above
mentioned Charter. Thus, martial law was declared in Madras on the 17 th November, 1687, and
the Governor and Council held trial of several fugitives from the Ship 'James' who had
committed piracies. 32 In 1687, the Company sent from England Sir John Biggs, a professional
lawyer leamed in the Civil Law, to act as the Judge-Advocate. With the arrival of a professional
lawyer, on the scene, the Admiralty Court started to function properly and in right eamest. The
Govemor and the Council thereafter relinquished the judicial functions which they had been
exercising hitherto under the Charter of 1661 and ceased to sit as a court. The Admiralty Court in
practice came to function as a general court of the land and it was not confined merely to
maritime and admiralty cases proper as was envisaged by its Charter. It exercised a much wider
jurisdiction and dispensed justice in all cases; civil, criminal, maritime and mercantile. The year
1687 may thus be said to be doubly important for two reasons:

Firstly, a professional lawyer carne on the scene to administer justice; and, secondly the
executive gave up judicial functions in favour of the Admiralty Court. The Court used jury in
criminal cases but not in civil cases. This becomes clear from an account of a case brought in the
court. In 1694, the Company brought a suit against Elihu Yale, the ex-Governor of Madras,
claiming Rs. 50,000 which he was alleged to have extorted from certain merchants. Yale
requested for a jury trial. The Court overruled the plea on the ground that the trial by jury was
wholly impracticable for lack of a sufficient number of Europeans capable of discharging the
duty of jurors. 33Sir Biggs died in 1689. As no other qualified person was available in the
settlement to take his place, the Governor and Council appointed the Governor as the Judge-
Advocate with two members of the Council, as the judges of the Admiralty Court, associating
with the two merchants, an Armenian and a Hindu, to assist the Court in regard to the disputes
arising from their respective communities. This composition of the Court, it would be seen, was
not warranted by the Charter of 1686 which envisaged a 'civil' lawyer as a judge and two
merchants. In 1693, a new JudgeAdvocate, John Dolben, was sent from England, but his tenure
was brief as he was dismissed in 1694 on the charge of taking bribes. William Fraser, a civil
servant, was then appointed as the Judge-Advocate. In 1696, the Company directed that the
members of the Council should in succession serve as the Judge-Advocate. 34 Such an
arrangement was not warranted by the terms of the Charter under which only a civil lawyer could
be the Judge-Advocate, but it was made because the Company was reluctant to send a lawyer.

32
Love, op. cit, 494
33
FAWCETT, First Century of British Justice in India, p.212.
34
This direction was not followed in practice. After Fraser, one Styleman, a free merchant, was
appointed. When he resigned, a crisis arose in the court because none was ready to accept the post of the
Judge-Advocate and it was going abegging. Ultimately, it was thrust upon the helpless registrar of the
Court whose name was Marshall. The Government in appreciation elevated him to the Council for
supporting the credit of the Court. He left for England in 1704, and it was then decided that the office
should remain vaca, LOVE, op, cit., 1, 559; LOVE, op, cit., II, 30.
 The Company had always been reluctant to send lawyers to its nascent settlements, and its
reluctance became all the more accentuated by the unsavoury episode, which occurred at
Bombay. From 1698 onwards, under instructions from the Company, the Governor and Council
started hearing appeals from the Admiralty Court in cases involving less than 100 pagodas. After
1704, the Admiralty Court ceased to sit on a regular basis but was convened occasionally as and
when the necessity for the same was felt. Once it was convened in 1782 to try a person for
committing murder on the high seas. It was again called In 1788. At none of try a person for
committing murder on the high seas. It was again called in 1788. At none of these occasions, it
may noted, the provision of the Charter requiring a 'civil lawyer to preside over the Court was
fulfilled, as there was no such person available in the settlement.35

MADRAS MAYORS COURT (1688) –

The year 1688 saw the setting up of yet another court in Madras known as the mayor's Court.
This Court was a part of the Madras corporation which was established under a Charter, dated
Dec. 30, 1687, issued by the Company itself. It was customary in England in those days to confer
judicial powers on municipal corporations and a Mayor's Court was functioning in London as
part of the London Corporation. The company issued the Charter under its own authority instead
of the Crown because it thought that employment of persons immediately under a royal
commission made them arrogant and haughty as the wind of extraordinary honour entered their
minds. The Company wanted the corporation to be subject to the control of the Governor and
Council. In issuing the Charter, the Company depended on its powers of making laws under the
Charter of 1600, and of governing its settlements conferred by the charter of 1683.

Several factors led the Company to create a corporation at Madras. Madras had become a
populous town by now. The Dutch had applied the system of municipal government to a few
places in the East with great advantage. Therefore, the Company also thought of applying a
similar system to Madras in the hope that it might lead to its further growth. Further, in 1686, the
Madras Government had levied a house-tax to raise money for defraying the cost of repairing the
city wall, the native inhabitants of the town did not relish the levy. They protested and resorted to
strike methods againstthe levy which could be collected only with great difficulty. It was then
though that a composite body of a few Englishmen and a few Indians representing the principal
communities in the settlement might make taxation somewhat palatable to the native population
so that some funds could be collected for starting civic welfare activities in the town. 36

35
LOVE op. cit., 1.96; LOVE, op.cit., II, 30, 497; LOVE, op. cit.., III, 267, 308, 381.
36
WHEELER, Madras in the Oldten Time, 73, 81, 106, 109; FAWCETT, op. cit., 203; ILBERT
Government oflndia, 22-3 (lied).
In the Charter, the Company declared that it was to desire to encourage merchants and traders of
all nations and all religions and, therefore, the Corporation should consist of a mixture of the best
and honest people of all sorts residing within the limits of the Corporation, and the Court of the
aldermen of the Corporation, especially, should be made of the heads and chief of all respective
castes. The Company also stated in the Charter that it desired to confer power on the Corporation
"for the speedier determinations of small controversies of little moment frequently happening
among the unanned inhabitants".

Choultry Court

After the Mayor's court came on the scene, the Choultry Court, an important institution earlier,
lost its importance and functioned as a court of petty jurisdiction trying only small offences and
civil cases up to two pagodas. In criminal cases, it inflicted punishments of fine, imprisonment,
pillory, and whipping and even of slavery.

A native merchant found guilty of carrying on the trade of stealing children was given the
alternative of paying a fine of 200 pagodas, or staying in the pillory and paying afine of 80
pagodas. His two lieutenants became slaves to the Company. Two Aldermen was first assigned
to sit at the Choultry to dispense justice, but their duties in the Mayor's Court became so arduous
that it became impossible for them to sit in the Choultry Court. Consequently, special Choultry
justices were once more nominated. 37

Thus during 1686 to 1726, there functioned in Madras the Choultry Court, the Mayor's Court,
and for sometime, the Admiralty court. The Mayor's court was merely a Company's court having
been established by the company's Charter. So long as the admiralty court functioned, the
Governor and council as such exercised no judicial powers. While there was separation between
the admiralty court and the executive, the same was not true of the Mayor's court as some of the
Aldermen used to be members of the Council. When, however, the Admiralty court became
irregular after 1704, the Governor and the Council became active as an appellate court to hear
appeals from the decisions of the mayor's court. An interesting feature of the period is that justice
was mostly administered by non-lawyers: the admiralty court which had some professional
elements had only a brief span of active life.

4.6) THE HIGH COURT OF JUDICATURE –

The court of Governor and Council was designated as the High Court of Judicature. The Court
met twice a week. The Court decided all Civil and Criminal cases with the help of jury of 12
men.

37
KEITH, Constitutional historyoflndia, 47 (1936); Love op cit I 495,496,501
Meaning of the Words –

1) Mayors –

The Name of a court usually established in cities, composed of a Mayor, recorder and alderman.
Generally having Jurisdiction of offence committed with in the city.

2) Alderman –

A member of the municipal, legislative body in a town or city. In many jurisdiction, a member
of the higher branch of the municipal or borough council in England and Ireland before 1974.
One of local council elected by the other Councilors.

3) Burgesses –

A magistrate of a borough generally the chief officer of the corporation who performs with in the
borough (administrative division) the same kind of duties which a mayor does in a city. In
England the word is sometimes applied to all the inabilities of a borough who are called
burgesses. Sometimes it signifies the representatives of a borough in parliament.

5. ADMINISTRATION OF JUSTICE IN BOMBAY –

PERIOD 1668 – 1726

Portuguese were the 1st European to acquire the island of Bombay in 1534 from the King of
Gujarat in 1661. Portuguese King Alfonsus VI transferred the island to Charles II as Dowry on
the marriage of his sister Catherine with the British King. Charles II transferred it to the East
India Company in 1668 for an insignificant annual rent of 10 pounds.

JUDICIAL SYSTEM

Before 1726, the Judicial system the Island of Bombay grew in Three Stages –

 First Stage – (1668 – 1683)

 Second Stage – (1683 – 1690)
 Third Stage – (1781 – 1726)
5.1) CHARTER OF 1668 –
The political position of Bombay was quite different from that of Madras, the King of Gujarat
and from that of Madras, the king of Gujarat and from that time onwards it was under the
political control of the Portuguese. In 1668, the charger authorized the company the other
comprised of Mahim, Parel, Sion and Worli. A separate court of judicature was established. For
each division at Bombay and Mahim. Each court consisted of Five Judges, the custom officers of
each division, an Englishman, was empowered to preside over the respective court. Three Judges
formal the quorum of the court. As it was not possible for an Englishman to have adequate
knowledge of India Laws, some Indians were also appointed Judges to assist him in the court of
each division. The courts were authorized to hear, try and determine cases of small thefts and all
civil actions up to 200 (it was a Portuguese Coin 20 Xeraphins were equal to nearly Rs.150) in
value. An appeal from the court of each division was allowed to the court of Deputy Governor
and Council. A part from the appellate Jurisdiction the court of Deputy Governor and Council
also had original jurisdiction in important. Felonies which were to be tried with the help of Jury
and the laws of the company. Englishman was under the jurisdiction of this court. Further appeal
to the president and council at Surat was discouraged except in rare cases to legislate and to
exercise judicial authority in the island of Bombay. It was further stated that such laws should be
consonant to reason and not repugnant or contrary to the laws of England and they were also
required to be as near may be agreeable to the laws of England. The system of courts and
procedure was to be similar to that established and used in England. The Charter of 1668 resulted
in a transition of the company from a trading association to a territorial sovereign invested with
powers of civil and military government.

The president of Surat, Sir George Oxenden, received the Company’s order in September 1668
to visit the Island of Bombay and establish the executive government under a Deputy Governor
and Council. Oxenden visited Bombay in January 1669. He died in July 1669. The next
Governor of Surat – Gerald Aungier, made same reforms in the Island of Bombay in 1670.

5.2) JUDICIAL REFORMS OF 1670 –

As per the reforms of 1670 the Portuguese Laws and Customs were allowed to continue the
Island of Bombay was divided into two divisions. One division consisted of Bombay, Mazgaon
and Girgaon. The other comprised of Mahim, Parel, Sion and Worli. A separate court of
judicature was established for each division at Bombay and Mahim. Each court consisted of Five
Judges. The customs officer of each division, an Englishman, was empowered to preside over the
respective court. Three judges formed the quorum of the court. Three Judges formed the quorum
of the Court. As it was not possible for an Englishman to have adequate knowledge of Indian
Laws, some Indians were also appointed Judges to assist him in the Court of each division. The
Courts were authorized to hear, try and determines cases of small thefts and all civil actions up to
200 xeraphins (it was a Portuguese coin 20 xeraphins were equal to nearly Rs.150) in value. An
appeal from the court of each division was allowed to the court of Deputy Governor and Council.
Apart from the appellate jurisdiction the court of Deputy Governor and Council also had original
Jurisdiction in important Felonies which were to be tried with the help of jury and the Laws of
the Company. Englishman was under the jurisdiction of this Court. Further appeal to the
President and Council at Surat was discourages except in rare case.

5.3) NEW JUDICIAL PLAN OF 1672-

It was realized within the next 2 years that the judicial system of 1670 was defective in various
respects. Augier the Governor was himself not satisfied with the working of the Courts. The
Judges of the Superior and Inferior Courts had no knowledge even of the elementary principles
of law, they were Merchants. The judicial and executive power were exercised by the same
person. As consequences, the abuse of power created various new problems. Order to remove
these defects a new plan was prepared in 1672 for the administration of Justice in Bombay.

According to the new plan the government issued a proclamation on 1St August 1672 declaring
the introduction of English Law into Bombay. The Portuguese Laws and Customs were totally
abolished under the new plan. The Judicial Machinery was again organized. A new central court
known as the Court of Judicature was established. The Court of Judicature was empowered to
exercise its Jurisdiction over all Civil a and Criminal and Testamentary cases. George Wilcox
appointed its Judge assisted by other Justice. The Court sat once a week to try civil cases with
the help of jury. The court charges a fe of five percent of valuation of the suit from the litigants.

The judges were prohibited from carrying on private trade or business and instead he was
granted a salary of Rs. 2000 per year to meet his expenses. An appeal from the court of
Judicature was allowed to the Deputy General and Council. Juries were duty employed and paid.
Attorneys were allowed to practice. English procedure including arrest and imprisonment was
followed. As far as possible the English substantive law including statue law was made
applicable. In framing the new scheme Aungier was primarily concerned with the speedy and
impartial administration of Justice.

Justice of the Peace was appointed to administer criminal justice. For this purpose Bombay was
divided into four divisions, namely, Bombay, Mahim, Mazagaon and Sion.in each division a
justice of the Peace, an Englishmen was appointed. They acted as committing Magistrate to
arrest the accused and to examine the witness. The record was then placed before the Court of
Judicature which met once a month to decide criminal cases with the assistance of the Justice of
Peace, who acted as assessors in the Court.

The scheme of 1672 also created a Court of Conscience to decide petty civil cases. Once a
week the court dealt summarily with cvil cases under twenty Xeraphins. The decision of the
Court was final and no further appeal was allowed. No Court-Fee was charged from poor persons
and, as such the Court Become famous as, “Poonam’s Court”. George Wilcox, Judge of the
Court of Judicature, also presided over the Court of Conscience which met only once a week to
deal with petty civil cases.

George Wilcos, the first Judge of the Court of Judicature died in 1674. James Adams was
chosen to succeed Judge Wilcox but he was not well – versed in law. After a few months in
1675, his assistant Niccolls was appointed judge in his place. In 1677 Niccolls was suspended
and later dismissed by the Council in various charges. Gary succeeded Niccolls as Judge and
remained in the office up to 1683. During this tenure the salary and rank of a Judge was reduced
and the Council became superior in power and position.

Keignwin’s rebellion, which began in December 1683, and continued up to November 1684,
gave a death – blow to Aungie’s judicial system in the Island of Bombay.38

5.4) Admiralty Court (1684 to 1690) –

As stated above, the development of Courts at Bombay was interrupted due to the Keignwin’s
rebellion. After the rebellion was suppressed, efforts were made to set-up a regular judicial
system at Bombay. The Company found its authority to establish courts under the earlier Charter
of 1683 granted by Charles II. The Charter provided for the establishment of Courts at such
places as the Company might direct for Maritime causes of all kinds, including all cases of
Trespasses, Injuries and Wrongs done or committed upon high seas or in Bombay or its adjacent
territory, and each Court was to be held by a learned judge in civil law assisted by two persons
chosen by the company. Such Courts were required to decide cases according to the rules of
equity and good conscience and the laws and customs of merchants. Accordingly, an Admiralty
Court was established at Bombay in 1684. Dr. St. John was also authorized to act as Chief
Justice of the Court of Judicature. The Court of Judicature was again created, as the authority of
the Admiralty Court was not sufficient to cover all other civil business.

John Child, Governor of Bombay at Surat, was not in favour of accepting the theory of judicial
independence which was adopted by dr. St. John in his judicial decisions. It gave rise to conflicts
between the Governor and the Chief Justice. Dr. St. John’s judicial independence was interrupted
by the Governor John Child as insubordination towards himself. In 1685 the powers of Dr. St.
John to act as Chief Justice of the Court of Judicature were withdrawn by the Governor. Vux, a
member of the Bombay Council was appointed as judge to preside over this Court, in place of
Dr. St. John. These steps further developed the existing conflict between the Governor and the
Chief Justice. Dr. St. John strongly criticized the transferring of his power to Vaux, a new judge,
who according to him was ignorant of civil laws. In due course the Governor and Dr. St. John’s
dismissal, Sir J. Wyborne, Deputy Governor of Bombay, was appointed as the Judge of the
Admiralty Court. In 1688 Vaux succeeded Sir J. Wyborne and remained in the office up to 1690.

38
https://www.ijarnd.com/manuscripts/v3i7/V3I7-1194.pdf
 In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial system of
Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer justice was
almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period in Bombay’s
Legal History.

5.5) ADMINISTRATION OF JUSTICE IN CALCUTTA 1690- 1726 –

 Mughal Judicial system
 Kaziz and Courts
 Nawabs Courts

In the year 1668 the grandson of Aurangzeb Azimush Shan, and the Subedar of Bengal gave
Zamindari of villages, Calcutta, Sutanati and Govindapur for annual revenue of 1195 rupees to
the East India Company. In the December 1699 Calcutta became Presidency town and Governor
was appointed to administer he settlement. As a Zamindar company got all powers just like other
zamindar of that time. Bengal Zamindar in Mughal Empire zamindars got judicial power but
collected the revenue and maintained law and order in the zamindari area or village for judicial
purpose. That time Kaziz Court were established in each District, Parganah and Villages.

They handled civila dn criminal matters. Normally villages panchayats solved all problems. The
Judicial System was simple as everyone knew each other and transaction pf each other Moghul
Kings never paid any attention to Judicial System that time nothing was organized. The highest
bidder became the Kazi. Justice was purchased, corruption was rampant Kazi never got salary so
Kazi court fined the criminal and earned money. After this demand money from the complainant
for giving him justice. The other zamindars when gave death sentence the appeal went to the
Nawab, but company never did this the appeal from Zamindar’s. Collectors Court went to the
Governor and Council.

In Calcutta that time Collector enjoyed all the powers up to the year 1727. With the Charter of
1726 the new system was started in Calcutta presidency. Before this Charter the authority was
given by company and zamindar but the Charter of 1726 was a Royal Charter. The important of
this company but after this Charter Court got their permit authority from the British Crown.

6) CHARTER OF 1726
Necessity of judicial reforms –

The judicial administration in the settlement of the East India Company before 1726 was not of
high order. The judicial administration was executive ridden. There was no uniform judicial
system in the settlement of the company. The Courts were of the Courts of East India Company
consequently their decisions were not accepted by the court un England. The director of the
company therefore presented a petition to King George I stating that there was a great want at
Madras, Fort William and Bombay of proper and competent power and authority speedy and
effectual administration of justice in civil cases and for trying and punishing of capital and other
offences.

In the year 1726 King George I issued a Charter to the Company. The Charter of 1726 became
an important land mark in the legal history of India due to its various vital provision having
charter is that this charter introduced uniformity of Justice system in all 3 presidency town. The
Charter established Civil and Criminal Courts in each presidency towns.

The another important point is that before 1726 the Court got authority from the company but
after this Charter the Courts got authority from the Royal British Crown. The Court which were
present that time in England with the Charter of 1726 the appeals from Court in India went to the
Privy Council in England.

The way English law system became accepted to Indians. Indians did not find it foreign and
Indian did not have any other judicial system as such with this Charter in each Presidency town
local legislature was established Charter 1726 is also known as Judicial Charter as this is the
beginning of development of Indian law system and judiciary.

7) THE CHARTER OF 1687 AND THE CHARTER OF 1726 –

DISTINCTION
 The Charter of 1687 applied to Madras only whereas the 1726 Charter applied to all
presidency towns.
 The mayor’s Court established in 1687 was a Company’s Court. Three Mayor’s Courts
established in 1726 were Royal Courts as they were created by King’s Charter of 1726.
Naturally, the status of these Courts was recognized by the Courts in England.
 The old Mayor’s Court at Madras was empowered to exercise its jurisdiction over all
civil and criminal matters and an appeal was allowed to go to the Admiralty Court. On
the other hand, the Mayor’s Court established in 1726 were entrusted with civil
jurisdiction only, and from their decision, first appeal was allowed to the Governor-in-
Council in the respective presidency town, and a further appeal was allowed to go to the
King – In – Council in all cases involving a sun of 1000 Pagodas or more.
 No specific rules of law and procedure were laid down for the old Mayor’s Court at
Madras. The Mayor’s Courts, established by the Charter of 1726, were required to follow
a well-defined procedure based on English and practice. Thus the former can be said to
be governed more by principles of equity whereas the latter was governed by English
Law.
 A lawyer known as Recorder was attached to the old Mayor’s to the old Mayor’s Court
at Madras advice the Court, while no such officer was attached to the three new Mayor’s
Courts.39
There were 3 Courts, namely –
 Court of request
 Mayor’s Court
 Jurisdiction Court of governor and Council.
The court where appeal from the mayor court went criminal cases. Justice of the peace
and Court of quarter sessions consisting of governor and Council. Regarding Civil cases,
Privy Council in the England was the final authority. This Charter introduced many
changes but this Charter took away the independence of Mayor’s Court, which way
given to this court by the Charter of 1726. The East India Company with this Charter
also always followed the policy not to break the customs of Hindu and Muslims. When
both Indian parties agreed that time only Mayor’s Court handseled those cases. An
executive enjoyed more powers they appointed company servants as the judges. The
executive handled the cases in such a way it does not harm them or did not harm the
company servants or friends. In 1772 House of Commons appointed a committee of
secrecy to check the affairs of the East India Company, the committee in its 7th report
gave adverse report regarding Calcutta judicial system. The report stated that Mayor’s
Court behaved as the wish in all the cases without following English law.
As a result of criticism Supreme Court was established at Calcutta in the year 1774.40

39
https://prezi.com/gj4cngg_zjml/charter-of-1687/
40
https://mohdyasinblsllb.blogspot.com/2014/10/history-of-courts-part-i-notes-chapter.html
 8) CONCLUSIONS AND SUGGESTIONS
In the story of mankind the search for the definition of justice has an incredible parallel with the
search for meaning of God; both elude certainty and exactitude. The contents may be realised but
the contours cannot be defined.41

The Judiciary forms an integral part of the organisation of the state. It’schief importance lies in
the fact that it is specially charged with the duty of preserving and protecting those liberties,
privileges and rights which the state itself confers upon it’s individual citizens. There are two
possible dangers of invasion on the civil right. A private citizen may act contrary to law and
endeavour to assert his superiority against a weaker victim, or the same crime may be committed
by officials of the state. Justice may be fully vindicted in both the cases. It is the function ofthe
judiciary to study the law, to interpret it and to see that is correctly applied. Judicial commands
must effectively prevail even against the highest authority ofthe state of the most wealthy classes
ofit’s citizens, it is proved that they are guilty of illegal action. Such a guarantee constitutes one
of. the best safeguard for the preservation of a democratic society. Every effort has been made by
the British administrators to form a highly efficient judiciary. Judiciary proves as a valuable
instrument for safeguarding the rights and privileges of the people against encroachment from
any quarters.

The British deserve the credit for having introduced in India the modern concept of the rule of
law. This meant the end of arbitrary authority exercised by the earlier rulers of India. A person
could now know his rights and privileges and a set procedure was laid down for asserting them.
However, in actual practice many instances of interference with the rights and privileges of the
individuals took place. All the same, an opportunity was provided for bringing officers guilty of
breach of law to the court.

• The English company was having a more or less democratic set-up based on the British
government system. Inquiry system and trial system was a great feature of the East India
company judicial policies. In some cases, towards Indians it was also based upon the race system
in which they gave lot of importance to the Europeans but it also gave lots of importance to the
Indian ignoring caste and class prejudice. As a result, the English Company played a very
significant role in the field of law, justice, crime and punishment. The occupational castes had a
great chance to empower themselves by getting the secular kind of justice system. During the 17
th and 18th centuries, at Madras under the English Company, the processes of investigations
were democratic and labourer had every option to complain against the higher classes. As result
of this, the labourer castes were much benefited from the new constitutional legal structure of the
British. According to C.K.Mohan Rao, the British Company was politically strong and they
brought new constitutional structure of their own in India with what they have had an experience

41
Justice In India (1967) 6.
in England to suit their political ends in India. As they felt difficult to ignore the social
inheritance of India, due importance was given to the Indian subjects in their political as well
judicial administration in India. He further states that The English law was based on the
principle of equity and good conscience.