ADMINISTRATION OF JUSTICE IN

MADRAS, BOMBAY AND CALCUTTA

FROM 1600-1726
INTRODUCTION
The emergency of British empire in India stands out as a unique event in the history of
the world. Unless many other empires, the huge edifice of this empire was created by
merely a company which was organized in England for furthering British commercial
interest in overseas countries. A company was formed in 1600 by the name “The
Governor and company of Merchants of London Trading into the East Indies”, which
later came to be known as the East India Company.

THE CHARTER OF 1600 (FORMATION

OF EAST INDIA COMPANY)
The East India company was incorporated in England on 31st December, 1600 by a
Charter of Queen Elizabeth which defined the Constitution, power and privileges of
the company. The management of company was granted in the hands of a Governor
and 24 Directors and it was granted an exclusive privilege of trading from Cape of
Good Hope to the Strait of Magellan and no other British subjects could carry on trade
within this sphere.
ORGANIZATION
The company was to have a life span of fifteen years but the British Crown was
empowered to revoke the Charter even earlier on a two years notice, if the company’s
commercial activities were not found profitable to British. The Governor and 24
Directors of the company formed the ‘Court of Directors’ of the Company which was
to be elected every year by General Court. The tenure of the officers of the members
of the Court of Directors mainly lasted for one year, but they could be ousted by the
General Court if they were found unfit and insufficient for the post.

LEGISLATIVE POWERS OF THE COMPANY

The company was granted limited powers of legislation mainly for two reasons which
are ‘good governance of its servants and officers’ and for ‘advancement of trade and
traffic’ which play a significant role in the development of the company in India.
Though the legislative powers of the company were considerably limited, but they
were of historical importance in the pretext of India as it was the beginning of
development of Anglo-Indian Codes in India.

CHARTER OF 1609
The British King James I renewed the Charter of the Company as the trade of the
British Company was flourishing well and was also profitable to England. The
monopoly was perpetual there being no time limit to the tenure of the Company.
However, the company’s tenure could be terminated by giving a three-year notice if
case it was damaging the British interest.

THE CHARTER OF 1615 AND 1623

The Royal Grant of 1615
The Charter of 1615 was also known as ‘King Commission’ as it authorized the
company to grant commission to the ‘General’ in command of the vessel for each
voyage and empowered him to inflict punishment for capital offences, such as, murder
or mutiny in order to maintain discipline in long voyages in the sea.

The Royal Grant of 1623

The Charter of 1623 was passed by the Crown to keep an eye or control on the
growing indiscipline of the Company servant on the land.

These two Royal grants strengthened the authority of the Company to check on the
discipline issue of its servants both on the land and on high seas.

BRITISH SETTLEMENT AT MADRAS

(1639-1726)
 The East India Company had a factory at Masulipattam which was a
subordinate factory of Surat Presidency.
 One of the servants of the Company named Francis Day secured permission
from a Local Hindu ruler to construct an English factory on a strip of land.
 The fort was named as Fort. George and the Englishmen and other Europeans
lived inside the factory.
 The company was allowed to mint money and govern Madraspatnam which
was a small village near company’s fort.
  This village where Englishmen and Europeans were living came to be known as
‘White Town’ and simultaneously a town inhabited by local natives grew
adjacent to the English settlement and came to be known as “Black Town”.In
course of time entire territory comprising “White Town” and “Black Town”
developed into the city of Madras.
 It was in 1665 that the Madras which was a subordinate to Surat Presidency
was raised to the status of Presidency for the first time.
ADMINISTRIATATION OF JUSTICE IN
MADRAS
The administration of justice in Madras before 1726 can conveniently be studied
under three distinct phases-

First Phase (1639-1678)

 In the first phase the administration of justice was primitive and elementary.
As already stated, Madras was merely an agency working under Surat
administration who conducted all affairs through small council.
 In white town, the administration of justice was done by Agent and Council
which decided both civil and criminal matters cases.
 In Black town, prior to British settlement. Choultry were functioning for
administering justice to the natives residing in Madraspatnam.
 The Choultry Courts were headed by a native village headman who was known
as Adigar. He dealt with petty case of civil and criminal and was also
responsible for maintenance of law and order.
 However, he was not empowered to decide criminal cases of serious nature
and had to refer to the native Raja for the execution of the punishment.
 The Adigar kanappa who inherited the post from his father was removed from
his position by the Agent and his Council on the charges of corruption and
misuse of power.
 In place of him two English servants of the Company, Captain Matin and John
Light were appointed at the Choultry Courts.
 There was another officer named ‘Peddanaigne’ who was subordinate to
Adigar. His function was to apprehend the offenders before adigar with the
help of the constables.
CHARTER OF 1661
 Charter of 1661 was granted by British King Charles II to the English Company
which introduced some radical changes in the existing judicial system.
  This Charter authorized the Company to appoint Governors and other officers
in India. They were empowered by the Charter to hear the and decide the
criminal as well as civil of the servants of the company and those living under
its jurisdiction according to the laws of England.
 The natives residing within the territorial jurisdiction of company’s settlement
also came under the authority of the Government and council whether they
were employees of the company or not.
 The case of Mrs. Ascentica Dawes in 1965 proved to be turning point in the
Anglo-Indian history. The facts of the case were that, Mrs. Dawes was accused
of murdering her slave girl. The case, as usual was referred to Agent and
Council of Madras, who being uncertain about the competence to try the case,
referred it to the authorities in England. The Charter of 1661 had granted
judicial power to the Governor and Council and it was doubted whether these
powers extended to the Agent and Council or not.
 Therefore, after great consideration it was decided that the Agency of Madras
would be upgraded as Presidency of Madras so that the Agent and Council
would become President and Council and he will be empowered to try the
case.
 After trying the case, Mrs. Dawes was not found guilty by President and
Council for murdering his slave girl.
 This case is important case in the history of British rule in India because for the
first-time absence of legal expert in the administration of justice was
considered to be most disastrous by the company’s administration.
SECOND PHASE (1678-1683)
 The second phase of the evolution of judicial system in Madras commences
from 1678 when Streynsham Master became the Governor of Madras.
 The Court of Governor and Council which was created after Mrs. Dawes case
was not functioning properly and therefore the new governor introduced the
Judicial Plan of 1678 to eliminate the delays in disposal of criminal and civil
cases. The governor ordered the court to hold its sittings twice a week and in
deciding criminal matters take the help of jury of twelve persons. Now this
court came to be known as High Court of Judicature and was to follow English
law and procedures.
 The working of Choultry courts were also reorganized by the Judicial Plan of
1678 where the officers, namely, the Adigar were replaced by the two English
Servant of the Company. They were known as pay-master, the mini-master
and the custom-master and all three were to sit judges in the Choultry courts
twice a week.
  The Choultry courts could decide civil matters of upto fifty pagodas and
criminal nature of minor nature. An appeal from this court lay to the High
Court of Judicature comprising of Governor of Madras and his council.
 Judicial Plan of 1678 was the first plan or charter which created hierarchy of
court for the first time in India.
THIRD PHASE (1683-1726)
The main feature of this phase of judicial administration was the establishment of
Admiralty courts in 1686. The company enjoyed monopoly of trade yet many private
English merchants started to trade in India which resulted in loss to the East India
Company and also saw increase considerable increase in crimes in high seas which
also had to be settled by an efficient Court. With the above conditions, the British
Crown passed a Charter of 1683 which expanded the power of the company in the
following matters.

 The company was authorized to establish more than one court at places
wherever it deemed it necessary.
 Each court was to consist of one legal expert in the field of civil law and two
Indian merchants to aid the judges in explaining the local usage and laws of
the natives.
 The court could decide cases related to mercantile as well as maritime cases.
 The court was to impart justice based on the notions of justice, equity and
good conscience and laws and customs of merchants. It was also empowered
to lay down its own procedure.
ADMIRALTY COURTS
 The Admiralty court was created in 1686 under the crown’s charter of that
year. The need for the creation of court was felt due to increase in the number
crime of piracy.
 The court consisted of three senior servants of the company one of whom
acted as the Judge and other two as his assistant.
 The chief-judge was to be known as Judge-Advocate. The company appointed
Sir John Biggs, a person well-versed in civil law, as the Judge-Advocate.
 The company also appointed Attorney-General and Registrar in this court in
the same year.
 Besides the maritime cases, the Admiralty Court also exercised jurisdiction
over civil and criminal cases and thus, it became the ‘General Court’ of Madras
replacing the High Court of judicature which now cease to exercise judicial
functions.
 Unfortunately, John Biggs died in 1689, thereafter in absence of any suitable
person, the functions of the Admiralty Court was discharged by the Court of
 Judicature which consisted of the Governor as the Judge-Advocate and two
members of his council to be judge. In addition, it also had two merchants one
of whom was to be an Armenian while other was a Hindu native.
 This system continued till 1692 when John Dolben was appointed as Judge-
Advocate. From 1692-1696 the appointment of Judge-Advocate was made by
the British Government. But in 1696, the Company directed that the member
of the Council should be appointed as the Judge-Advocate in succession.
 The Admiralty court functioned well till 1704 when John Dolben, returned to
England. Thereafter, the company decided to keep the position of Judge-
Advocate vacant and finally the Admiralty court ceased to function.
MAYOR’S COURT AT MADRAS UNDER THE CHARTER OF `1687
A corporation was set up by the company in the Madras under the Crown’s charter of
1687 with the aim of associating natives with the Englishmen. In order to achieve this
objective, the Company wanted to undertake certain public welfare for which funds
were needed and were charged by collecting taxes and raising funds from local
inhabitants.

Mayors Court
 The Madras Corporation consisted of an English Mayor, twelve Alderman and
sixty or more Burgesses. Out of twelve Alderman, three were to be the
Covenanted English servant of the company while others could be of any
nationality.
 The mayor was to held office for one year and he was elected by the Aldermen
from amongst themselves. The Aldermen was to held office for life or till their
residence in Madras. The vacancy of an Aldermen to be filled up by election
from amongst the Burgesses. The Burgesses were to be elected by the mayor
and Aldermen while few ere to be nominated by the Company from the heads
of various caste.
 The Mayor and the Aldermen constituted a civil Court, while the mayor and
the three senior Aldermen were Justice of Peace having criminal jurisdiction.
The mayor and two aldermen formed the quorum. The court held once in a
fortnight and decided criminal cases with the help from jury. The court could
award the sentence of imprisonment or fine.
 Appeals from the decision of the mayor’s court lay to the Admiralty court in
case, the value of the civil case exceeds three pagodas, and in criminal case,
where the offender was sentenced to death or loss of limb.
 The mayor’s court also constituted a court of Records since a Recorder was
also attached to the court. Sir John Biggs was appointed as the Recorder of
Mayor’s court in 1688. The appointment of John Biggs as the Recorder of
 Court created an anomaly because as Judge-Advocate of the Admiralty Court,
he was also hearing appeals from the mayor’s court, with which he was
associated as a judge. However, this anomaly did not long last since Sir John
Biggs died in 1689 and thereafter the company did not appoint anyone as the
Recorder of the mayor’s court.
CHOULTRY COURTS
With the establishment of the mayor’s court, the jurisdiction of choultry courts was
considerably reduced. Now, it could decide civil cases of the value up to two pagodas
and administer justice in petty offence. Two aldermen sat twice a week at the choultry
court to dispose the case of minor nature. Thus after, 1704 there were three distinct
courts functioning simultaneously at Madras, namely, the choultry court, the mayor’s
court and the Governor and Council’s Court which has assumed admiralty jurisdiction
after 1704. This system was followed up to 1727 when mayor’s court was established
under the Royal Grant of 1726.

BRITISH SETTLEMENT AT BOMBAY

(1668-1728)
The Island of Bombay which was under the control of Gujrat king Sultan Bahadur
came under the control of Portuguese. The Portuguese king transferred it to King
Charles II as dowry on the marriage of his sister Princess Catheline with Charles II.
However, the king Charles II found it difficult to control its administration from
England therefore he transferred it to British Company for a petty annual fee of ten
euro by the Charter of 1668.

ADMINISTRATION OF JUSTICE IN BOMBAY

The judicial system in Bombay before 1726 can be divided into three distinct phases
which are discussed below:

First Phase (1668-1683)

In the initial stage, the Island of Bombay was under the control of President and
Council of Surat factory and Governor of Surat was ex-officio Governor of Bombay.
Sir George Oxenden, the President of Surat visited Bombay in January, 1669, by the
order of the Company. He established exclusive Government under Deputy Governor
and Council subject to the control of the Governor and Council of Surat.
THE BEGINNING OF JUDICIAL SYSTEM IN BOMBAY (1670)
 The regular system of courts was brought to Bombay by Gerald Aungir the
Deputy Governor of Surat factory in 1670.
 He divided the Island of Bombay into two territorial divisions-one divisons
comprised Bombay, Mazagaon, and Girgaon while the other comprised of
Mahim, Parel, and Sion.
 One court of judicature was setup for each of these divisions. Each of these
courts have five judges who were to decide five cases. There was a custom
officer for each division who was the president of the respective court. Three
judges formed the quorum.
 Some of the judges were Portuguese and Indians to keep the temper of the
natives and at the same time to apprise the English Judge about the customs
and usages of the native inhabitants.
 Gerald Aungir who initiated this judicial system was not happy with the
working of courts mainly because of two reasons. The first reason was that the
judges of lower courts and higher courts were lay person without any
knowledge in the field of law and second was that the judicial system
identified itself too much with the executive government.
 With a view to removing these defects, Aungir requested the Company to
send someone who was well-versed in law but his request was turned down
and the Company suggested to choose someone suitable person from
amongst the servants of the company working in the settlement itself.
Consequently, George Wilcox was appointed as the Judge by Aungir and a new
Judicial scheme was introduced in Bombay in 1672.
BOMBAY JUDICIAL PLAN OF 1672
 A Government proclamation was issued whereby Portuguese was abolished
from Bombay and English Law was introduced in place of it.
 A court of Judicature was established with George Wilcox as its Judge. This
court was to have jurisdiction in all cases, namely civil, criminal, probate and
testamentary.
 Civil cases were tried with the help of jury once a week.
 The administration of criminal justice was also reorganized by the Judicial plan
of 1672.
 Now, the Island of Bombay was divided into four divisions, namely Bombay,
Mahim, Mazagaon and Sion.
 In each, of these divisions, a Justice of Peace was appointed who was to be
Englishmen. He had power to apprehend the offender and hold inquiry and
conduct preliminary investigation. He also examined witnesses.
  After preliminary investigation the Justice of Peace was to send the record to
the court of Judicature where the case was tried with the help of jury. Thus,
these justices of peace acted merely as committing Magistrates and were not
punitive courts.
 An appeal from the court of judicature were taken to the court of Deputy
Governor and Council of Bombay.
COURT OF CONSCIENCE
 A court of conscience was also established with functioned under the court of
judicature.
 It decided petty civil cases of a value less than 20 xerophins without the help
of jury so that the speedy justice could be available to poor litigants.
 The court held sitting twice a week.
PANCHAYATS
 Panchayats was reorganized in 1672 and were authorized to decide cases
among the persons of their own caste, who mutually agreed to submit their
dispute through arbitration, otherwise the disputes were brought to the court
of judicature.
 The panchayats were also to report the offenders to the justice of peace of the
region, so that the offenders would be punished for the crimes they have
committed.
SECOND PHASE (1684-1690)
Admiralty Courts
 The British king Charles II, by the charter of 1683 had empowered the
company to establish admiralty court in Bombay.
 The functioning of the court was same as the admiralty court of Madras and it
decided civil and criminal cases besides the usual admiralty and maritime
disputes in accordance with the rules of equity and good conscience.
 St. John was appointed as the Judge and President of the Admiralty court of
Bombay. He was specially sent by the Company from England as he was well-
versed in civil law. He also got the opportunity to act as the Chief Justice of the
court of judicature of Bombay and took to himself the administration of civil
and criminal justice as well.
 St. John came in direct conflict with the John Child, the president of the Surat
factory. The reasons were obvious Dr. St. John wanted independence of
judiciary whereas John Child tried to establish superiority and considered
judiciary subservient to them. As a result of conflict Dr. St. John was dismissed
as the Chief justice of judicature of Bombay except that pertaining to the
admiralty courts to the admiralty court. Dr. St. John was finally dismissed in
 1687. The Admiralty court, however, continued to function within the
framework of Charter of 1683.
THIRD PHASE (1718-1726)
Court of Judicature, Bombay (1718)
After a gap of thirty years, the English judicial system in Bombay revived again with
the establishment of court of judicature in 1718 under Lawrence Parker on March 25,
1718.

 This court consisted of an English chief justice and nine other judges including
four Indians representing Hindus, Mohammedans, Portuguese, Christians, and
Parsis.
 The Indian judges did not enjoy the same status as English judges and they
were called ‘Black Judges’ and their presence was not counted for the
quorum.
 Three English judges formed the quorum and these English judges were to be
members of the Court of the Governor and council.
 This court has the power to decide civil and criminal cases according to law,
equity and good conscience and the rules made by the company.
 The jury system was not revived and court charged Rs. 5 for making an appeal.
 The Indian judges functioned as assessors and enlightened the English judges
on customs, usages and traditions of the natives.
 The revived judicial system adopted in 1718 suffered from serious defect of
overlapping jurisdiction. The judges could participate in cases in which their
own interest was involved. That apart, some of the members of the council
acted as judges in the court of judicature also heard appeals from these very
decisions in the capacity of the members of the court to the Governor and
Council. The revival court of judicature established in 1718, continued till
February 10, 1728 when it was replaced by the mayor’s court.
 The defects of the judicial system were reflected in the case of Rama kamati,
which was decided by Lawrence Parker. Rama Kamati was a wealthy Hindu of
Bombay who was arrested on the charge of communicating with Dacoity
Angira through letters. The only evidence which was available in the case, was
the hear say evidence of a dancer who told the court that Angira himself had
told that Rama Kamati had written to him. Rama Kamati was sentenced to
perpetual imprisonment and his property was confiscated. It is said it was
done at the behest of Governor Boone who had conspired and framed
fictitious charge against the accused.
BRITISH SETLLEMENT AT CALCUTTA
(1690-1726)
Some, Englishmen landed at Sutanati on the bank of river Hooghly in 1690 and
constructed a fortified factory named a Fort William. The foundation of Fort William
at present (Kolkata) was laid down by Job Charnock on august 24, 1690.In 1698, the
East India Company obtained zamindari rights of three adjacent villages of Calcutta,
Sutanati and Govindpur from the grandson of Aurangzeb, Prince Azimushshan who
was the subedar of Bengal at that time. By obtaining the zamindari rights of these
villages the company acquired a legal and constitutional status to exercise
administrative jurisdiction over the natives residing in that particular area. In 1699,
Calcutta was declared a Presidency and a President and Council was appointed to
administer the settlement and the factory came to be known as the factory of Fort
William.

ADMINISTARTION OF JUSTICE IN FORT WILLIAM (CALCUTTA)

 After acquiring zamindari rights, the company assumed the functions of
zamindars.
 Under the Mughal ruler the zamindars were responsible for collecting land
revenue and maintaining law and order in their zamindari.
 The administration of civil and criminal justice was managed by separate
courts but with the disintegration of Mughal empire, these courts ceased to
function and taking advantage of this situation the zamindars took
administration of justice in their own hands
 Each zamindar held a court called ‘Cutcherry’ to decide civil case. Appeals
from this court lay to the court of Nawabs Court at Murshidabad. Capital
punishment was to be awarded by the zamindar’s court but it was subject to
confirmation by the Nawab’s court at Murshidabad.
 The East India Company appointed an English member of the Governor’s
Council as ‘Collector’ in 1700 who was responsible for collecting taxes and
decide civil and criminal matters of the native inhabitants.
 The English Collector maintained a Fouzdari court for the administration of
criminal justice. The trials were held in a summary manner without the help of
jury. The common modes of punishment which could be awarded were
whipping, imprisonment, fine, banishment, work on roads etc. The execution
of death sentence, however required the confirmation of President and
Council and due process of death sentence was to be followed, that is death
sentence can be awarded by whipping and not by hanging. Regarding the
offences committed by Englishmen, the Collector could only take cognizance
 of only petty crimes and misdemeanours committed by them and the serious
offences could be tried by President and Council.
 The Collector decided civil cases in his court called ‘Cutcherry’. The case
decided in a summary manner according to the customs and usages of the
native individuals, and in their absence, according to the principles of equity
and good conscience. An appeal from this court could lay down to the
President and Council.
 It is to be noted that the appeal from the English Collector’s court was not to
be taken to Nawab’s court but was to taken to the President and Council in
both civil and criminal matters which shows that the company as zamindar
exercised much more power in comparison to local native zamindar. However,
this system continued only till 1727 when a mayor’s court under the Royal
Grant of 1726 was established at Fort William.
NEED FOR CHARTER OF 1726
 The judicial administration in the three Presidency town were unsatisfactory
and poor.
 With an increase in company business activities in India, the population of
‘British Settlements’ were also increased and a greater number of cases were
coming to courts on daily basis.
 The Company believed the powers of court should be derived from a complete
authority so that the judgement delivered could have binding force and
uniformity in judicial administration.
 After seeing a successful working of mayor’s court in Madras the company
wanted to adopt the similar corporations at Bombay and Calcutta.
 Many Englishmen died living movable and immovable property in India. This
created a problem for the company regarding the distribution and disposal of
their assets. No doubt, the mayor’s court of Madras established in 1687 was
authorized to deal in matters of testamentary cases but its decisions were not
recognized in England as it was the court of company and not of British Crown.
Therefore, to avoid unnecessary litigation in England regarding the disposal
and distribution of property who died back in India the Crown wanted to
establish a mayor’s court in each Presidency town.
MAIN PROVISIONS OF CHARTER OF 1727
1. Establishment of a Corporation at Bombay and Calcutta
 The mayor’s court consist of a mayor and nine aldermen.
 The mayor and seven aldermen were to be natural born British subject and
ither two can be of any nationality.
 The first mayor and aldermen were to be appointed by Charter itself.
Thereafter, the mayor was to be elected annually by the aldermen. The
 aldermen were to hold office for lifetime or till residence in the presidency
town.
 They could be removed from their office by Governor and Council on a
reasonable cause.
 An appeal against such removal could be made to the King and Council.
 The mayor and aldermen had to take oath of allegiance to the office before
Governor and Council.
2-Mayor’s Court in Presidency Towns
 The mayor and nine aldermen to each corporation formed a court of record
which was called ‘Mayor’s Court. It was empowered to decide all civil case
within the Presidency town. The mayor with other two aldermen formed the
quorum.
 The court also exercised testamentary jurisdiction and could grant probates of
will and letter of administration in case of intestacy.
 The court was to held sitting three times a week and an appeal from mayor’s
court could lie to Governor and Council. But in case involving the value of
subject matter above 1,000 pagodas, a further appeal lay to the King in
Council.
3-Crime and Punishment
 The mayor’s court has no criminal jurisdiction. It was only a court of civil and
testamentary jurisdiction.
 The Governor and five senior members of the Council were appointed as
Justice of Peace in each Presidency for the administration of criminal justice.
They also constituted court of Oyer, Terminer and Goal delivery and were also
required to hold quarter Sessions for, trial of all offences excepting high
treason for at least four times a year.
4-Jury trial in Criminal Cases
 The Charter of 1726 provided that criminal cases in Presidencies be decided
with the help of Grand Jury and Petty Jury.
 The Grand Jury which consisted of 23 persons, who entrusted with the task of
presenting persons suspected of having committed a crime. Therefore, it was
also called “Jury of Presentment”.
 It is significant to note that along with Charter of 1726, the Company sent to
each Presidency, a list of statutes, law-books and instructions etc., which
contained a list of procedure to be followed in civil, criminal cases and
testamentary. This was intended to maintain uniformity in the functioning of
the law courts in all presidencies and follow the English Law.
5-Legislative powers under the Charter
  Before passing of Charter of 1726 the law-making power was vested in the
hands of court of director of the company in England. But this was not
convenient because the directors hardly had any knowledge about the local
conditions in India and, therefore, the laws framed by them were ineffective.
 After Charter of 1726 this power was vested in the hands of Governor and
Council of each Presidency-town to make bye-laws, rules and ordinances for
the regulation of the Corporations and inhabitants of the Presidencies and
they would also prescribe punishment for the breach of such laws and rules.
DIFFERENCE BETWEEN CHARTER OF 1726 AND 1687
 The mayor’s courts established in Madras under the charter of 1687 was a
company’s court whereas the new mayor’s court under the charter of 1726
were crown’s court.
 The charter of 1687 has a wider scope has it had jurisdiction to both civil and
criminal matters whereas the charter of 1726 has only civil jurisdiction.
 Under the charter of 1687, appeals from mayor’s court lay to the admiralty
court whereas in charter of 1726 an appeal from mayor’ court could lay down
to Governor and Council and second appeal would go to King and Council.
 The mayor’s court established in 1687 has no testamentary jurisdiction
whereas the courts established under the charter of 1726 had testamentary
jurisdiction.
 The recorder in the mayor’s court under the charter of 1687 were
professional’s lawyers to advise the court in legal matters whereas the
recorder appointed under the charter of 1726 does not belong to legal
background.
 The mayor’s court established in Madras under the charter of 1687 consisted
of twelve aldermen out of which at least three were to be Englishmen. But the
new corporations set up under the charter of 1726 consisted of nine
aldermen, out of which seven were to be Englishmen. Thus, the new mayor’s
courts were far more English dominated than the earlier one.
 The mayor’s court established in Madras under the charter of 1687 were not
bound to follow specific procedure and technical rule of law in the
administration of justice but the courts established under the charter of 1726
were bound to follow the laws and procedure of English courts.
 Under the charter of 1687, the executive has no interference with the
administration of justice but the charter of 1726 invested powers in the hand
of Governor and Council to decide criminal cases.
CONCLUSION
To sum up, it may be stated that the administration of justice in the settlements of the
East India Company before 1726 had no demarcations between executive and
judiciary which resulted in overlapping of functions and sometimes in resulted in
conflict between executive and judiciary showing superiority on one another. Other
characteristics feature of the judicial administration before 1726 was lack of
professional’s judges in the court. Though some efforts were made when a person
well-versed in law was appointed as Judge-Advocate in Madras and Bombay but the
experiment was not encouraging and the company was reluctant to appoint lawyers as
judges in its courts. Yet another aspect of the administration of justice was the
judgements delivered by the Company’s court was not recognized by the courts in
England as the judges of the company court were laymen and had no knowledge of
law and legal procedure and hence their judgements were mostly erratic and
controversial. That apart, the judicial system in the company court lacked uniformity
and certainty as each settlement had its own judicial arrangement quite distinct from
others. These problems were only solved when charter of 1726 was passed by the
Crown which set up mayor’s court in each presidency town.

Mayor’s Court under the

Charter of 1687 and 1726
Mayor’s Court under the Charter of 1687
A Corporation was set up by the Company at Madras on 29 Sep., 1688,
under the Charter of 1687. It was created with the purpose of
associating natives with the Englishmen. In order to fulfill this purpose,
the Company wanted to undertake certain public welfare activities for
which funds were needed. The Corporation collected taxes and raised
funds from the inhabitants of Madras.

Composition– The Madras Corporation consisted of an English Mayor,

twelve Aldermen and sixty or more Burgesses. Out of the twelve
Aldermen, three were to be the covenanted English servants of the
Company while the rest could be of any nationality. The Mayor was to
hold office for one year and he was elected by the Aldermen from
amongst themselves. The Aldermen held office for life or till, their
residence in Madras. The vacancy of an Alderman was to be filled up
by election from amongst the Burgesses. The Burgesses were to be
elected by the Mayor and Aldermen while few of them were nominated
by the Company from the heads of the various castes.
Civil and Criminal Jurisdiction– The Mayor and Aldermen
constituted a civil court, while the Mayor and three senior Aldermen
were Justices of Peace having criminal jurisdiction. The Mayor and two
Aldermen formed the quorum. The Court held its sitting only once in a
fortnight and decided criminal cases with the help of jury, The Court
could award the sentence of imprisonment or fine, Appeals from the
decisions of the Mayor’s Court lay to the Admiralty Court in case the
value of the civil case. Exceeded three pagodas, and in criminal cases,
where the offender was sentenced to death or loss of limb.

Court of Record– The Mayor’s court constituted a Court of Records

since a Recorder was also attached to the Court. As all the members of
the Mayor’s Court were lay persons without expertise in law, it
dispensed justice “in a summary manner according to equity, justice
and good conscience” and law enacted by the Company. Obviously,
this was bound to result into uncertainty and lack of uniformity in laws.

For the purpose of providing the services of a person having legal

knowledge, the Company appointed Sir John Biggs, the Judge-Advocate
of the Admiralty Court, as the Recorder of Mayor’s Court in 1688. This
appointment of Sir John Biggs as a Recorder of the Mayor’s court
created an anomaly because as a Judge-Advocate of the Admiralty
Court, he was also heard appeals from the Mayor’s Court, with which
he was associated as a Judge. However, this anomaly did not last long
since Sir John Biggs died in 1689 and thereafter the Company did not
appoint any Recorder in the Mayor’s Court.

Mayor’s Court under the Charter of 1726

The Mayor and nine Aldermen of each Corporation formed a Court of
Record which was called the Mayor’s Court’. It was empowered to
decide all the civil cases within the Presidency town and the factories
subordinate thereto. The Mayor together with two other English
Aldermen formed the quorum. The Court also exercised testamentary
jurisdiction. It could grant probates of will and Letters of Administration
in case of intestacy. The Court was to hold its sitting not more than
three times a week. An appeal from the decision of the Mayor’s Court
lay to the Governor and Council. But in cases involving the value of
subject-matter above 1,000 pagodas, a further appeal lay to the King
in Council.
Being a Court of Record, the Mayor’s Court could punish persons for its
contempt. The process of the Court was to be executed by the Sheriffs,
the junior members of the court who were initially nominated but
subsequently chosen annually by the Governor and Council. There was
no specific mention in the Charter of 1726 as to the law which was to
be applicable in the Mayor’s Court but since the earlier Charter of
1661provided that justice was to be administered in accordance with
the English law, it was presumed that the same law was to be followed
by the Mayor’s Court in deciding the cases.

Working of the Mayor’s Court of 1726- The Charter of 1726

adopted the principle of independence of judiciary to a considerable
extend which was a fortunate development in the legal history of
India. But the constant assertion of judicial independence by the
judges of the Mayor’s court proved irksome to the Governor and
Council which resulted into constant conflict and hostility between the
two. As rightly observed by Kaye, this made the Corporations, and
consequently the Courts, largely autonomous but the Council at times
sought to interfere · with the functioning of the Mayor’s Court and tried
to dictate its terms which the Courts did not like. The strained relations
between the Mayor’s Court and the Governor and Council also led to
serious differences between the Government and the Corporation
which are reflected in the following cases:–

The Bombay Case of 1730- A Hindu woman of shimpi caste

converted herself to Christianity and became a Roman Catholic. On
account of this, her son aged twelve years left her and went to live
with his Hindu relatives at Bombay. The woman filed a suit against the
Hindu relative in the Mayor’s Court charging him for illegal detention of
her son and some jewels. The Court ordered the relative to hand over
the boy to his mother. Thereupon, the heads of the caste complained
to the Governor Cowan who brought the matter before the Council. The
Governor and Council held that the Mayor’s Court had no authority to
decide cases involving disputes relating to caste or religion of natives
and warned the Mayor’s Court not to interfere in such cases.

The Case of Arab Merchant- In 1930 a dispute arose between the

Court and the Council. An Arab merchant brought a suit in the Mayor’s
Court for recovery of the valuable pearls which were alleged to have
been extorted from him by the men who saved him from a burning
boat from the coast of Gujarat. The defendants had already been tried
earlier for piracy and acquitted. The Council made suggestion to the
Mayor’s Court against the validity of merchant’s claim. But the Mayor’s
Court ignored the suggestion and decreed the suit. On appeal, this
decision was reversed by the Governor and Council by the casting vote
of the Governor.

The Oath Case of Bombay- In Bombay, a dispute arose in 1746 over

the issue of form of oath to be prescribed for Hindu witnesses. The
Mayor and Aldermen of Bombay were usually the members of the
Grand Jury at a Quarter sessions. A conflict arose between the Bombay
Council and the Mayor’s Court as to the form of oath for Hindu
witnesses. The Grand Jury held up two successive sessions by refusing
to find and ‘true bills’, unless the Hindu interpreter and witnesses were
sworn upon the ‘Cow instead of the holy ‘Geeta’. This touched the
sentiments of the Hindu natives and they felt aggrieved.

The Oath Case of Madras- In Madras also the relation between the
Governor and Council and Mayor’s Court were strained as is evident
from a dispute that arose over the form of oath in 1736. In this case
two Hindu merchants were imprisoned by the Mayor’s Court for
refusing to take the Pagoda-oath. The Hindus were opposed to the
pagoda oath on the ground that it was contrary to their religion and
asserted that they were prepared to take ‘Geeta-oath’. This action of
Mayor’s Court annoyed the Hindus and they complained to the
Governor who ordered release of the imprisoned Hindus on parole. The
Court was directed not to meddle unnecessarily with the religious rites
and ceremonies of the natives and keep itself within limits prescribed
by the Charter of 1726.

The major causes of constant clashes, between the Council and the
Mayor’s Courts were lack of adequate judicial training and discipline
among the judges of the Courts, attitude of the Governor and Council
to treat Mayor’s Court subordinate to it, and above all, both suffered
from superiority complex and considered themselves independent to
each other. The uncertainties and ambiguities of the Charter were also
responsible for the above noted conflicts.

Comparison of the Mayor’s Court Established

Under Charter of 1687 and 1726
Although the Mayor’s Court of 1726 were established on the parallel
lines to the Mayor’s Court of 1687 yet the two differed in the following
respects–

1. The Charter of 1687 being a Company’s Charter, the Mayor’s Court

of Madras established under it was a Company’s Court whereas the
new Mayor’s Court under the Royal Charter of 1726 was a Crown’s
Court.

2. The earlier Charter of 1687 conferred both, civil and criminal

jurisdiction on the Mayor’s Court but the new Charter of
1726 empowered the Courts to try and hear only the civil cases. Thus
the Charter of 1687 had a wider scope as compared with the Charter of
1726.

3. Under the Charter of 1687 appeals from the Mayor’s Court lay to the
Admiralty Court while the Charter of 1726 provided that appeals from
Mayor’s Court lay to the Governor and Council and a second appeal to
the Court of King in Council of England. There was, however, no
provision for second appeal in the earlier Charter of 1687.

4. The Mayor’s Courts established under the Charter of 1726 possessed

testamentary jurisdiction which the Charter of 1687 had not provided
for.

5. The Charter of 1687 provided for a ‘Recorder’ in the Mayor’s Court

who was to be a professional lawyer to advise the court in legal
matters. But the Recorder of the Mayor’s Courts established under the
Charter of 1726 was not necessarily to be a legal expert and judges
appointed in the Court were mostly lay persons without any legal
training or experience. In this sense, the Charter of 1687 was more in
tune with the imperatives of justice as compared with the Charter of
1726.

6. The Madras Corporation established under the Charter of 1687

consisted of twelve Aldermen out of which at least three were to be
Englishmen. These Aldermen acted as judges of the Mayor Court, But
the new Corporations set up under the Charter of 1726 consisted of
nine Aldermen, out of which seven were to be Englishmen, Thus the
new Mayor’s courts were far more English dominated than the earlier
one.
7. No specific procedure and technical rules of law were provided for
administration of justice in the old Courts but the Mayor’s Court of
1726 was bound by the laws and procedure of English Courts of the
Crown.

8. Under the Charter of 1687, the Executive Government had nothing

to do with the administration of justice but the Charter of 1726
invested the Governor and Council with the power to appeals and
decide criminal cases,

In what respect the Charter of 1726 was

inferior to the Charter of 1687
It may be noted that criminal justice in Madras was administered by
the Mayor’s Court and Admiralty Court established under the Charter
of 1687 whereas the Charter of 1726 vested criminal judicature in the
executive and this was certainly a retrograde step. Having once
divested the executive of its judicial powers, it could not be regarded
as a progressive step by any test or standard, to re-invest it with
judicial powers.

A cardinal principle of good government is to keep judicial and

executive powers separate in order to secure liberty and property of
the people. Form this point of view the Charter of 1726 was inferior to
that of 1687. Besides, similar was the position with respect to the
Indian participation. The Madras Corporation of 1687 had a sizable
Indian representation whereas the corporation of 1726 was to have
only two non-English Aldermen and, in practice, none was ever
appointed. The Mayor’s Court of 1726 was thoroughly an English Court
with no Indian participation and it compared unfavorably with the old
Madras Mayor’s Court in this respect also.