History 145

Early Developments(1600-1836)
Dr. RESHMA UMAIR
ASSISTANT PROFESSOR
AMITY LAW SCHOOL
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 EMERGENCE OF EAST INDIA COMPANY
 English people came to India in 1601 as a body of trading merchants
 On 31st December, 1600 Queen Elizabeth I granted a Charter to the Company
which incorporated the London East India Company to trade with the East
Indies for a period of 15 years
 Charter of 1600
 The provision of the Charter of 1600 were only in connection with the trade and
were not intended for acquisition of dominion in India
 Legislative Authority
 The legislative authority was given to the Company in order to enable it to
regulate its own business and maintain discipline among its servant
 On 31st May, 1609, James I granted a fresh Charter to the Company which
continued its privileges and the Company was also authorized to continue the
enjoyment of power and rights which were granted to them by Queen Elizabeth
under the Charter of 1600
https://www.ft.com/content/0f1ec9da-c9a6-11e9-af46-
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 TREATY BETWEEN THE ENGLISH
AND MUGHAL EMPEROR
 In 1618, Thomas Rey, Ambassador of James I succeeded in gaining the
Emperor favour and the English Company entered into a Treaty with the
Mughal Emperor
 The Mughal Emperor granted the permission by issuing a farman which
proved a turning point in the legal history of India
 It provided:-
 The disputes amongst the Company servants will be regulated by their own
Tribunals
 The English people will enjoy their own religion and laws in the administration
of the Company
 The local authorities will settle the disputed cases in which Englishmen and
Indians were the parties
 The Mughal Governor or Kazi of the place will protect the English people
from all sorts of oppression and injury
 THE FACTORY OR SETTLEMENT AT SURAT
 A factory consisted of warehouses for storage of goods and residential
buildings for its employees.
 Surat was a famous international port in those days and Muslim in thousands
sailed every year from Surat to Arabia for Hajj pilgrimage purposes the place
from where ships sailed was called Makkai Darwaza.
 In those days in India the law was personal and religious in a character and the
english did not liked to be governed by that law and the local courts .
 The criminal law was entirely Muslim this was the only reason that the
English men tried to secure from the Mughal emperor the privilege of being
governed in their factory by their own laws .
 The Mughal emperor was hardly interested in interfering with the internal
affairs of these people and bringing them under the local law in matters arising
among them
 Wherever the Englishmen settled in India they administered justice to
themselves according to the english law and this proved to be a very important
single factor which exerted a profound affect on the growth and development
of the Indian legal system
https://www.dtnext.in/News/City/2017/11/19015525/1052616/The-White-and-Black-Town-of-
Madras.vpf
 MADRAS SETTLEMENT AND
ADMINISTRATION OF JUSTICE
 On 22nd July 1639 an English man, Francis Day acquired a piece of land
from a Hindu Raja of Chandragiri for the East India Company
 It was known as Madraspatnam.
 Francis Day built St George factory in 1640 and also for the residence of
english people employed in the service of the company .
 This fort was later on known as “White House”, while the village nearby
inherited by native Indians was known as “Black Town”.
 Thus, Francis Day founded the whole city of Madras.
 The Raja empowered the company to mint money and to govern the whole
city of Madraspatnam.
 Due to the initiative of English traders ,trade and commerce gradually
developed
 Certain villages in the neighborhood also gained importance and
progressed.
 MADRAS SETTLEMENT AND
ADMINISTRATION OF JUSTICE
 On 22nd July 1639 an English man, Francis Day acquired a piece of land
from a Hindu Raja of Chandragiri for the East India Company
 It was known as Madraspatnam.
 Francis Day built St George factory in 1640 and also for the residence of
english people employed in the service of the company .
 This fort was later on known as “White House”, while the village nearby
inherited by native Indians was known as “Black Town”.
 Thus, Francis Day founded the whole city of Madras.
 The Raja empowered the company to mint money and to govern the whole
city of Madraspatnam.
 Due to the initiative of English traders ,trade and commerce gradually
developed
 Certain villages in the neighborhood also gained importance and
progressed.
PHASES OF EAST INDIA COMPANY
 1st Phase (1639-1678)
 The Company’s Factory at St. George was under the administration of an
Englishman who was called Agent
 The Agent and the Council were authorized to decide both civil and
criminal cases of English people residing at St. George
 Case 1: In 1641, a native Indian women was murdered by another native
man. A Trial was held and the Indian was found guilty. The English
authorities reported the matter to local Naik who ruled that Justice must be
done according to English laws. The offender was found guilty and duly
hanged.
 Case 2: In 1642, a British soldier was murdered by a Portuguese . The
Agent and Council were hesitating to punish the European. The local Naik
ordered that they must not hesitate in giving the punishment and the
offender was shot dead
 Case 3: In 1644, a English caused the death of an India, The Agent and the
Council referred the matter to the local residents of Madras the verdict was
that the Indian died because of accident and the Britisher was acquitted
PHASES OF EAST INDIA COMPANY
 1st Phase (1639-1678)
 Choultry Court
• It was administering justice in the village area of MadrasPatnam
• This court was presided over by village headman called Adigar
• Due to some charges of bribery and corruption , he was arrested and placed
behind bars
• The Agent and the Council dismissed him from the Office
• The Europeans were appointed judges to preside over the Choultry Court

 2nd Phase (1678-1683)

 Streynsham Master was appointed as Governor of Madras in 1678
 The whole judicial system was reorganized
 The Court of Governor and Council was designated as the High Court of
Judicature
 This court sat for the 1st time on 10 th April 1678 to try and decide a case
PHASES OF EAST INDIA COMPANY
 2nd Phase (1678-1683)
 The next step was to reorganize the Old Choultry Court
 The Indian Officer of the court was replaced by English Officer of the
Company
 The Court was empowered to try civil cases up to 50 Pagodas( was a gold
coin where 1 Pagoda was equivalent to Rs 3) and petty criminal cases
 The High Court was Judicature consisting of the Governor and Council
were authorized to hear appeals from the Choultry Court
 Governor made a very important Declaration in 1690 by replacing the 3
languages- Portuguese, Tamil and Malayalam and declared English as the
only court language
 3rd Phase (1683-1726)
 Admiralty Court
• In order to curb the unauthorized activities and to safeguard the trading
interests , the Company obtained a Charter in 1683 to establish Courts of
Admiralty in India and the purpose was to try all traders committing
PHASES OF EAST INDIA COMPANY
 3rd Phase (1683-1726)
• The Court was empowered to hear all cases concerning maritime and
mercantile transactions, piracy, injuries and wrongs etc.
• On July 1686, the Court of Admiralty was established at Madras and John
Grey was appointed as its Judge
• In 1687, John Bigg who was a learned lawyer was appointed as Judge
Advocate of the Court
• In 1692, John Dolben, an Englishman well versed in law was appointed
Judge Advocate
• He was independent in his decision and refused to decide cases under any
pressure or influence. He even gave judgement against the employee of the
Company
• The Governor was not happy and he made Dolben victim of a bribe giver
and dismissed him
• In 1694, the Company again offered him appointment but he refused
• Then the Governor appointed Frazer, a member of the Council as the Judge
PHASES OF EAST INDIA COMPANY
 Mayor’s Court
• The Company issued a Charter in December 1687 which authorized it to
create a corporation of Madras and establish a Mayor’s Court
• The Mayor’s Court was part of the Corporation of Madras and was also
empowered to carry out judicial functions
• In 1688, the Company created a Corporation of madras consisting of a
Mayor 12 Aldermen and 60 Burgesses and the Company’s Charter
nominated the person who would occupy this position in the Corporation
• Englishman would be elected every year as Mayor by the Aldermen and
Aldermen were appointed for their lifetime or during their residence in
Madras
• Out of 12 Aldermen 3 were required to be Englishmen compulsory
• The quorum fixed for sitting of the court was Mayor and 2 Aldermen
• An appeal was allowed to go to the Court of Admiralty from the decision of
the Mayor Court
• Sir John Bigg, the Chief Judge of the court of Admiralty was appointed 1 st
 CHARTER OF 1661
 Charles II granted a very important Charter in 1661

 It played a historical rule in improving the existing judicial system of the

Company’s Settlement at Madras

 The Charter empowered the Company to appoint a Governor and Council

in each of its settlement in India

 The Governor and Council were authorized to judge all persons belonging

to the Company in all cases civil and criminal according to law of England
 Even the Indian inhabitants who were residing in the Company’s settlement

were also included in the jurisdiction of the Governor and Council

 Under this, the Company appointed Foxcroft as the 1 st Governor of Madras
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 ESTABLISHMENT OF BOMBAY
 The King of Portugal gave Bombay in Dowry to the King of England
Charles II
 He transferred Bombay to the Company in 1668 for a very nominal rent
 By a new Charter of 1668, the Company was authorized to exercise Judicial
Authority in the island of Bombay
 Judicial Reform of 1670
 The 1st important legislative work of the Company was done by Aungier in
1670
 He reorganized the old Judicial setup of Bombay
 The laws were classified into 6 sections:-
1) Related to the Freedom of Worship and Religious Beliefs
2) The Law dealt with the Impartial Administration of Justice
3) It provided for the establishment of a Court of Judicature to decide all
criminal cases
4) Dealt with the registration of transactions concerning sale of land and
houses
 ESTABLISHMENT OF BOMBAY
Island of Bombay

DIVISION 1 DIVISION 2
 Bombay  Mahim
 Mazagaon  Parel
 Girgaon  Sion
 Worli
 COURT OF
JUDICATURE  COURT OF
(with 5 Judges) JUDICATURE
 Custom Officer (with 5 Judges)
presided over it  Custom Officer
presided over it
 Indians were appointed to assist the English Judge in the Court
 The Court authorized to gear cases up to 200 xeraphines( A Portuguese coin 20
Xeraphin equals Rs 150)
 JUDICIAL PLAN OF 1672
 A New Central Court known as the Court of Judicature was established
 The Court was empowered to exercise its Jurisdiction over Civil, Criminal
and Testamentary cases
 George Wilcox was appointed as Judge of the Court
 Justice of Peace was appointed to administer Criminal Justice and Bombay
was divided into 4 divisions
 Bombay
 Mahim Justice
 Sion of Peace
 Mazagaon

 They acted as Magistrate to arrest and accused and to examine the witnesses
 The record was then placed before the Court of Judicature which met once a
month to decide criminal cases with all the Justice of Peace
 COURT ESTABLISHMENT
 Court of Conscience
 The Court was created to decide petty civil cases under 20 Xeraphins
 This court sat once a week
 The decision of the Court was final an no further appeal was allowed
 No Court fee was charged from poor persons
 It was also knows a ‘Poor Man’s Court’
 George Willcox, Judge of the Court of Judicature presided over this too

 Court of Admiralty at Bombay

 The Charter of 1683 provided for the establishment of Admiralty Court at
Bombay
 This Court was established in 1684
 St. John, a learned Civil lawyer was appointed as its Judge
 St. John also succeeded in getting authority from the Governor to act as the
Chief Justice of the Court of Judicature
 COURT ESTABLISHMENT
 John Child, the Governor of Bombay was not in favour of the Judicial

Independence and it started a conflict between Governor and Chief Justice

 In 1685, the Governor got an opportunity and the power of St. John as a

Chief Justice of the Court of Judicature were withdrawn

 Vaux was appointed Judge to preside over this Court

 The relationship between the Governor and the Judge became strained

which resulted in the dismissal of St John in 1687 from the post of the Judge
of the Court of Admiralty
 This incident made the Company reluctant to appoint any professional

lawyer as Judge in India

https://en.wikipedia.org/wiki/Bengal_Presidency
 ADMINISTRATION OF JUSTICE IN CALCUTTA
 The English company settlement in Calcutta was different from Madras and
Bombay.
 On 1690, the English East India Company constructed Fort William for its
factory by the side of the river Hoogly in Bengal.
 In1698 prince Azim-Us-Shan Subedar of Bengal and grandson of
Aurangzeb granted zamindari rights for three villages-
 Calcutta
 Sutanati
 Govindpur
 The company appointed a collector to control the administration of all three
viallages.
 The collector hold zamindari court for both civil and criminal cases.
 In 1699 the status of Calcutta was raised to the presidency and the governor
and council was appointed.
 The collector was also appointed as the member of the council
Justice in civil and criminal cases
 In order to administer justice in criminal cases the company decided to
adopt the exsisting Mughal patterns
 Faujdary court presided by an English collector was established to decide
criminal cases.
 Capital punishment was not inflicted unless the sentence was confirmed by
the governor or council of Calcutta. Death sentence was executed by
wipping to death and not by hanging to death .
 For serious crimes the governor and council were applied cases according
to English law
 The collector decided cases on the basis of the prevailing customs and
usages of the country . In the absence of native custom the case was
decided according to natural justice and equity .
 In important cases the appeals were allowed to the governor and council.
 The collector was also responsible for collecting the revenue.
Concentration of powers in collector
 In the judicial system of calcutta the office of the collector became a
very important office.
 It was dealing with civil criminal and revenue matters
 It was also authorized to decide civil and criminal cases concerning
europeans in india.
 All judical and executive powers were exercised by the collector and
governor in council
 It created conflict and confusion creating dissatisfaction
 This state of affairs continued upto 1726 and the 1726 charter
improved the situation and laid down the foundation of an important
era in the history of judicial system in calcutta
Charter of 1726
 Establishment of corporation
 The charter of 1726 provided for the establishment of
corporation in each presidency town for eg.
Bombay ,Calcutta and Madras
 Each consisted of Mayor and nine aldermen
 The mayor would be elected every year by 9 Alderman
 Alderman was appointed either for lifetime or for the term of
his residence in the presidency town
 The governor in council was empowered to dismiss or
remove any of the alderman on reasonable cause
 This charter for the first time created a sub ordinate
legislative authority I each of the presidency town of India
 Mayor’s Court
 The Charter of 1726 constituted a Mayor’s Court for each of the presidency
town
 It consisted of Mayor and 9 aldermen
 The Mayor and two senior alderman were required to form the The mayor and
two senior alderman form the quorum of the court
 The mayors court was declared to be the court of record and were authorised
to hear and determine all civil actions
 The court was also granted jurisdiction and power to issue letters of
Adminsitration .

PROCEDURE
The sheriff and officer of the court was to serve the processes of the court
The court issues summons directing the sheriff to bring defendant before the
court
In case he failed a warrant was issued by the court to arrest the defendant and
presnt him before the court
The court was empowered to release the dependant on bail
 RIGHT OF APPEAL
 The charter for the first time allowed the provisions for the Ist and 2 nd appeal
 The first was allowed to the Governor and council from the decision of the
mayors court in each Presidency .
 A period of 14 days was given to file an appeal.
 The decision of the GIC was final in all cases involving a sum less than 1000
pagodas
 In case of 1000 pagodas or above the further appeal was allowed to the king in
council from the decision of the GIC
JUSTICE OF PEACE
 The charter provided that in each Presidency the Governor and five senior
members of the council will have criminal jurisdiction and would act as a justice
of peace
 They were empowered to punish and persons for petty criminal cases
 The charter of 1726 made the beginning of importing English idesa technical
forms and procedures of criminal justice into India
Conflict
 The following were the cases which reveal the conflict about and relations
between the governor in council and the Mayors’ court at Bombay Madras
and Calcutta became strained
Case 1-Shimpy Case (Bombay)
 Hindu woman of Shimpy caste changed her religion and became Roman
Catholic
 She had of a son of 12 years of age who left her and decided to stay with
his Hindu relatives
 The mother filed a case in the Mayor court against her hindu relative for
unlawfully detaining some jewel and her son
 The court ordered the relatives to hand over the boy to his mother
 The head of the Shimpy caste complained the governor in council
 The governor in council asked the Mayors’ court not to interfere in the
religious matter of Indians and issued a warning
Case 2-PAGODA OATH CASE
 The Mayor’s court also came into conflict with a local
inhabitants of madras
 The court insisted that the hindu witnesses must take “Pagoda
Oath” instead of Gita oath.
 The Gita is a holy book of hindus
 A gujrati merchant was fined by the court for refusing to take
Pagoda Oath
 When the matter came before the Governor In Council they
remitted the fine
In 1736 two hindus were imprisoned on their refusal to
take Pagoda Oath
 This incident excited the Hindus emotionally.
 The governor intervened and released them on payroll under his
order
 This incident and the roll of the governor further added to the
already tensed relations with the Mayor’s court.
CALCUTTA

 At Calcutta the Mayor’s court was established in 1728 under the

charter of 1726.
 In its actual working and dealing with the governor in council
the condition was not much better at Calcutta compared to
Bombay and Madras
 Similar conflicts arose between the Mayor’s court and governor
in council
POLITICAL CHANGES IN
MADRAS
 On 14th September 1746 the French captured the city of Madras
 It gave a death blow to the Mayor’s court at Madras
 In 1749 the city of Madras was recaptured by the English from
the French
 The English company realised the necessity of suitable judicial
machinery at Madras
 It was considered reasonable to revive the Mayor’s court under
new charter
 The Mayor’s court was re established in Madras by the charter of
1753
 The directors of the company removed the defects of the charter
of 1726
 CHARTER OF 1753
 The new charted re-established the mayors court at Madras, Calcutta and

Bombay
 It also introduced some reforms in the charter of 1726 to tackle the

conflicting situation and also to situation and also to gain favour of local
men residing in the Presidency Towns.
 Consequently the Mayor’s court lost its independence

 Regarding “taking of oath”, the charter made it clear the main purpose was

to oblige the witness to speak the truth before a court

 It provided a particular oath for Christians for Hindus it was stated that he

oath must be taken in a manner which is considered most binding on their

conscience according to their castes
 COURTS ESTABLISHED BY THE CHARTER
 THE COURT OF REQUEST

 It was established by the charter of 1753

 It was established to hear civil suits up to five pagodas,one for each

presidency town.

 THE MAYOR’S COURT

 The Charter of 1726 constituted a Mayor’s Court for each of the presidency

town .
 It was established hear civil suits for five or more than five pagodas, one for

each presidency town

 COURTS ESTABLISHED BY THE CHARTER
 THE COURT OF THE PRESIDENT AND COUNCIL

 It was empowered to act as justices of peace and the court of quarter

sessions to hear and decide criminal cases

 It was also empowered to act as civil appellate court and in the capacity to

hear civil appeals from the Mayor’s courts in the respective presidency
towns

 THE KING-IN-COUNCIL(THE PRIVICY COUNCIL)

 It was the highest order of appeal

 It heard appeals from the court of the President and the Council in all civil

cases involving a sum of 1000pagodas (Rs 3000) or more.

 CRITICISM OF THE CHARTER
 Executive upper hand

 The charter of 1753 made the judicial machinery more or less subordinate to

executive government and it failed to provide just administration of justice.

 They were inexperience and ignorant of law

 Judges ignorant of law

 The governor in council were quite ignorant about the technicalities of

English criminal law on which basis they have to decide cases in India

 Indefinite jurisdiction

 Only the presidency towns were under the jurisdiction of mayor’s court but

the position was not clear about the cases arising beyond such area .
 CRITICISM OF THE CHARTER
 Expensive appeals

 Provision was there for the king and council but it can be said that for a long

period of time hardly any appeal was taken to England as it was highly
expensive task to go to London for an appeal

 Exclusion of Indians

 The mayor’s court practically excluded Indians for having any share in the

administration for justice in India

 ABOLITION OF MAYOR’S COURT
 CALCUTTA
 The regulating act 1773 abolished the mayor’s court at Calcutta and in its
place a supreme court was established in 1774
 MADRAS
 At Madras the mayor’s court continued to function till 1797.
 Consequently the company decided to abolish the mayors court at madras
and under the charter of 1798 the recorders court was established in its
place.
 The constitution of the recorders court at madras was same as that at
Bombay
 BOMBAY
 At Bombay the mayor’s court was abolished in 1798 and in the same year
the recorders court was established in its place