DR.

RAM MANOHAR LOHIA NATIONAL LAW UNVERSITY

LUCKNOW

History- III

Final Draft on

Administration Of Justice In Madras:

1639-1726

Submitted to: Submitted by:

Dr. Vandana Singh Margaret Rose

Assistant Professor Roll no. 34

RMLNLU Semester- 3rd

1
 Acknowledgement

It feels great pleasure in submitting this research project to Dr. Vandana Singh Assistant
Professor(HISTORY) ,without whose guidance this project would not have been completed
successfully. Secondly, I would like to express my gratitude towards Prof. Gurdip Singh, Vice
Chancellor and Prof. (Dr.) C. M. Jariwala Professor, Dean Academics for their support and
encouragement.

Next, I would like to sincerely thank my seniors, whose suggestions and guidance assisted me
throughout the entire tenure of making the project.

Last but not the least, I would like to express my heartfelt gratitude towards my parents and
friends who guided me and helped me at every possible step.

Margaret Rose

B. A. LLB.(Hons.)

3rd semester

Roll. No. 34

2
 Table Of Contents

1. Introduction……………………………………………………..4

2. First Stage : 1639-1665…………………………………………5

3. Second Stage : 1665-1686……………………………………....6

4. Third Stage: 1686-1726…………………………………………7

5. Crimes and Punishments………………………………………..10

6. Conclusion………………………………………………………12

7. Bibliography…………………………………………………….13

3
 Introduction

The early centres 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.

This and the subsequent two chapters seek to survey the growth of judicial institutions in these

three settlements from their inception until the year 1726. The year 1726 constitutes a landmark

in the Indian Legal History as it gave a new orientation to the judicial system in the three

Presidency Towns. It is therefore convenient to treat separately the period prior to 1726.

The judicial system at the Presidency Towns was 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 provide for the

administration of justice to these people as well. Despite this factor, 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 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 Admiralty court and

Mayor’s court.

4
 First Stage 1639-1665

To begin with, Madras was an agency subordinate to Surat. Its Chief Officer was called ‘Agent’

who administered the affairs of the company with the help of a Council. The judicial system that

existed at this stage was conspicuous by the absence of any systematic and regular administration

of justice. The only system that existed was-

(a) The Agent and his Council for the White Town; and

(b) The Choultry Court for the Black Town.

The jurisdiction and powers of the former were not clearly laid down. It could not decide serious

offences and generally sent them to the Company’s authorities in England. No decision could be

given in such cases for years due to the lack of effective and expenditious means of

communication. The Choultry Court was a native court presided by the village headman known

as ADIGAR. In 1652, company’s two servants were appointed to sit in this court, after the

dismissal of the then Adigar on the ground of dishonesty. This court could decide only petty civil

and criminal matters. What happened in cases of serious nature, is hardly known. Apparently

there was no specific and special procedure to deal with such matter in the black town and the

procedure and punishment differed from case to case. Generally the matter used to be referred to

be referred to the native Raja who either gave a specific direction in the case or authorized the

English authorities to decide the matter according to the English law. Charter of 1661 was

granted by Charles II and radical changes were brought by it as under it the company could

“appoint Governors and the other officers in India”. Company’s authority was excluded over the

natives i.e., non-employees of the company. Justice was to be imparted according to the English

Law.

5
 Second Stage 1665-1686

Although the charter of 1661 provided that the governor and council could decide every matter

according to the laws of England , nothing was done until 1665, then the Dawes case arose. Mrs.

Ascentia Dawes was brought on a charge of murder before the Agent and the Council. As per

practice, the agent and council could only refer the matter to England. To get rid of this

procedure the company thought it proper that the Governor and Council should be appointed

under the Charter of 1661 so that such cases may be decided then and there. Accordingly, in

1665 the company raised the status of Madras to a Presidency and appointed a Governor and

Council who could also work as a Court. The case of Mrs. Dawes was decided by this court.

Perhaps because of the absence of any legal expert in the court the lady got acquitted. Many

requests were made by the Governor and the Council to the Company to send a legal expert, but

none was heard. In 1678, the Governor and the Council resolved that they would sit as Court for

two days in a week to decide the cases in all the civil and criminal matters with the help of a jury

of twelve men. The Court was called as the High Court of Judicature. This court decided

important cases both in civil and criminal matters and also hears appeals against the decisions of

the Choultry Court.

6
 Third Stage 1686-1726

Admiralty Court

As noted above proper administration of justice was absent in the presidency and the same was

the case with other establishments. Crimes were increasing and occurred more frequently on

ships transporting goods from one place to another. To face this difficulty and to avoid the evils

arising from it, it was found necessary that a court having the jurisdiction to decide the maritime

cases should be established. Therefore, on 9th august, 1683, Charles II granted a Charter to the

company making a provision for the establishment of the Admiralty courts. Admiralty courts

were to consist of three members, one of whom was to be ‘learned in the civil law’ and the other

two were merchants, appointed by the company. The court had to hear all cases, mercantile and

maritime concerning all persons coming within the limits of the charter, e.g., the cases of

trespass, injuries, wrongs, etc. committed at the high seas. The court had to apply the principles

of equity justice and good conscience and the customs of the merchants. Subject to the directions

of the crown, the court could determine its procedure.

The proposed court was established in Madras on 10th july, 1686. The first members of the court

were three civil servants who were also members of the Governor’s council. In the year 1687, a

lawyer-member with the designation of Judge-Advocate was appointed to this court. The lawyer

was Sir John Biggs. On the arrival of the Judge-Advocate, Governor and Council found that

there was no need of the Governor and council administering justice separately and they,

therefore, relinquished their job in favor of the court of Admiralty which henceforth decided all

types of cases whether civil, criminal, maritime or mercantile. Criminal cases were decided with

the help of jury.

7
In 1689, Sir Biggs died at the post of the Judge-Advocate fell vacant. In the absence of any

lawyer-member, the Governor himself assumed the charge of the Judge-Advocate. This

composition of the court was against the nature of the original Charter which required a civil

lawyer as the Judge-Advocate. Hence in 1692, a new Judge-Advocate was appointed who was

dismissed in 1694 on a charge of bribery. In 1696, the company directed that the members of the

council would successively work as Judge-Advocate. But none of them was a civil lawyer, hence

the court lost its importance. After 1704, the court seized to work regularly. In the meantime

other courts were established to decide the dispute.

Establishment of Corporation and the Mayor’s Court- Under a Charter of 30th December,1687

the East India Company proposed to establish a Corporation in Madras. The purpose of the

Corporation was-

(1) to provide a representative local body.

(2) to impose local taxes, and

(3) to have the powers “for the speedier determination of small controversies of little

importance frequently happening among the unarmed inhabitants.

The first Corporation in Madras was established on 29th September, 1688. It had one Mayor, 12

Aldermen and from 60 to 120 Burgesses. The Mayor was to be elected annually. The

Corporation was subject to the authority of the Governor and Council who could remove any of

the members of the Corporation including the Mayor.

Mayor’s Court- The Mayor’s Court consisted of the Mayor and all the Aldermen. The quorum

for the Court was three- 1Mayor, 2 Aldermen. A lawyer member, called Recorder, was

appointed by the Mayor and Aldermen for helping them in deciding the cases of “considerable

value and intricacy”.

8
The jurisdiction of the Court extended to all civil and criminal matters. It had power to inflict

any punishment on any Indian as well as Englishmen subject to the condition that no

Englishman could be punished to death. In criminal cases the court had to take the help of

jury. Appeals against the judgement of this Court both in civil and criminal matters, went to

Admirality Court. In civil matters, an appeal could be filed only when value exceeded

3pagodas and in criminal cases when the loss of life or limb was involved.

The law to be applied by this Court was not specifically laid down. The only provision made in

the Charter was that the Court would decide the disputes “in summary way according to justice

and conscience,” and according to the laws made by the Company.

The Court, although provided a forum for deciding the disputes of the people, it could not

enjoy the independence needed by the judiciary. It always depended on the Governor and

Council because they could remove the Mayor and any Alderman. Moreover, the Mayor and

the Alderman were also the members of the Council and, therefore, they could not do full

justice in the matters related to the Company and its executive.

Choultry Court- After the establishment of the Mayor’s Court the Choultry Court, which used

to impart justice to the natives, lost its importance. Its jurisdiction was limited only to petty

criminal cases. It could impose only minor punishments of fine, imprisonment and whipping.

In civil matters it could hear the cases upto the value of 2 pagodas only.

The Mayor’s Court, the Choultry Court and the Court of Admiralty were the three Courts

which functioned in Madras. The Admiralty Court ceased to function after 1704 and its

jurisdiction was exercised by the Governor and Council. They also heard the Mayor Court’s

appeal still 1727 when a Mayor’s Court was established under 1726 Royal Charter.

9
 Crimes and Punishments

In Madras, during the period under survey, the process of administering justice was very slow

and tardy. Criminals as well as debtors were confined to the prison for long periods so much so

that at times ever their offences were forgotten. As a result of an inquiry in 1712, it was found

that several persons had been confined to the prison for long for thief and other offences. It also

transpired that Governor Pitt (1698-1709) had committed two weavers to prison for their

inability to repay the money borrowed from the Company. They were so poor that they could

never pay while in prison. They were discharged to work and pay off the loan; other prisoners

were sent to Sumatra to be company employed there in hard labour. Capital sentences were

usually awarded by hanging, though the Indians were at times executed or whipped to death.

The Governor and Council enjoyed the power to reprieve a death sentence. The punishment of

banishment was executed either by sending the offender out of the settlement, or deporting him

to Sumatra or St. Helena to work under the Company. In a number of cases of serious offences,

like murder, manslaughter, misappropriation, etc, the Englishmen were sent to England.

Imprisonment was quite a dreadful punishment as the conditions in the prison were intolerable

and inhuman; prisoners were kept on rice and water and at times imprisonment was long and

indefinite. Forfeiture of limbs, fine, forfeiture of property, pillory, branding and whipping were

some other forms of punishment which were awarded to the offenders. Piracy was a capital

offence punishable with death. At times, interlopers were tried as pirates by the Admiralty

Court. Robbery also was punished with death. Witchcraft was punished with a heavy fine and

pillory. Forgery was punished with imprisonment and banishment . In one case, a native found

guilty of passing the base coins was sentenced to stand in pillory for two hours, to have his

both ears cut off and then be whipped out of the Company’s limits. Punishment for stealing

10
was slavery . A Hindu accused of stealing some clothes from a washerman was sent to St.

Helena as a slave. In one case of perjury, The Mayor’s Court passed the sentence of losing the

ears, standing in pillory and whipping out of the Company’s bounds. Brahmins were not sent to

death in observance of the Hindu sentiments; they were instead banished from the settlement.

In a case, an Indian convicted of murder was sentenced to be hanged and his body in chains

was displayed at a prominent place. In another case, the ring leader of a gang of robbers was

hanged and his head was severed from his body and displayed at a public place so that others

might be deterred from committing robberies.

There was no measure of standard of punishment nor there any principle behind its mode and

quality. Often the punishment awarded bore no relation to the offence committed and depended

on the personal whims, idiosyncrasies and prejudices of the judges. Usually, the punishments

were barbarous and inhuman, and were awarded with the idea of making them deterrent and

preventive. The offender was made an example so that others might be deterred from

committing the same crime again. The lash was the popular medium of punishment for minor

offences which was appointed in public; it knew no distinction of sex and fell heavily on both

males and females. Pillory also appears to be in vogue at this time. A technical principle of the

English Ecclesiastical Law, known as the benefit of clergy, was available to the Englishmen as

a defence and was commonly invoked in cases of manslaughter; in such a case, the accused

was branded on the hand and discharged.

11
 Conclusion

The overall picture of the administration of justice in Madras was not very good in these early

stages. The system suffered from many drawbacks. The most outstanding of them are the

following:-

(1) Absence of proper judicial system

(2) Uncertainity of laws- The courts and the people did not know the law applicable to them

and their disputes.

(3) Severe punishments- Usually the punishments were barbarous and inhuman. They were

based on the mixed idea of deterence and prevention.

(4) Lack of facilities in the jails- The inmates lived in inhuman conditions.

(5) Unfair trail- The English principles of fair trail such as the principles of natural justice

and benefit of doubt to the accused were not observed. The “benefit of clergy” was

however, available to the Britishers.

12
 Bibliography

1. http://mohdyasinblsllb.blogspot.in/2014/10/history-of-courts-part-i-notes-

chapter.html

Books

(1) Outlines Of Indian Legal & Constitutional History – Prof. M P Jain

(2) Outlines of Indian Legal & Constitutional History- Prof. M.P. Singh

13