DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

HISTORY III

FINAL DRAFT:

CHARTER OF 1726 V. MADRAS CHARTER OF 1687

SUBMITTED TO- SUBMITTED BY-

Dr. VANDANA SINGH SAURAV SINGH

Associate Professor, Roll no-122
Dr. RMLNLU. Sem- III,
Section B

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 ACKNOWLEDGEMENT

This project would not have been possible without the kind support and help of many
individuals and organizations. I would like to extend my sincere thanks to all of them.

I am highly indebted Dr. Vandana Singh for her guidance and constant supervision
and also for being a great source of inspiration and encouragement.

I would like to express my gratitude towards my parents for being there for me always
as a support system and motivation givers.

My thanks and appreciations also go to my colleagues in developing the project and

people who have willingly helped me out with their abilities.

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 CONTENTS

1. CHARTER OF 1726 ..4

Consequences of Charter of 1726
Main Reasons or Aims of Issuing the Charter of 1726
Defects in the Charter of 1726
2. CHARTER OF 16879
Corporation under company's Charter of 1687
Mayors Court
Jury System
Choultry Court
3. DISTINCTION BETWEEN THE MADRAS CHARTER OF 1687 AND THE CHARTER OF
1726.11
4. MAYOR'S COURT UNDER THE CHARTER OF 1687 AND 1726: COMPARISION........12
5. CONCLUSION: CHARTER OF 1726 V. MADRAS CHARTER OF 1687.13
6. BIBLIOGRAPHY..14

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 CHARTER OF 1726:

In less than twenty years after the United Company was established under the Act of Queen
Anne, its Court of directors represented by the petition to King George I that the existing
organizations for the administration of justice, both civil and criminal at Bombay, Madras and
Calcutta were not satisfactory, and it was realized that adequate provision should be made for
more speedy and effectual administration of justice in those places. Thereupon in the year 1726,
the Crown by letter Patent provided for the establishment of Corporations and the setting up of
or re-modeling of the Mayors court at the above places. The Charter of contained important
provisions, which inaugurated British system of Courts and administration of justice in India.
Fawcett has very correctly observed: that it means authoritative introduction of English Law in
the presidency Towns and foreshadowed the parliamentary interference that first took shape in
the regulating Act of 1773.
The reason responsible for bringing the establishment of Mayors court are briefly the
lack of uniformity of approach in legislation, the absence of the local legislating authority, lack of
testamentary jurisdiction of the courts in India and the King became the fountain the of justice,
the provision of appeal over which could since be made to the Privy Council.
In two respects, however, the charter of continued in the beaten grove. Firstly the
justice continued to be administered by the non-professionals Judges, and secondly, intimate
relations between the executive and the judiciary were maintained. Only after 1773, these two
deficiencies could be removed.

Establishment of Corporations And Mayors Court at Presidency towns-

The charter provided for the establishment of a corporation in each Presidency towns i.e.
Bombay, Madras and Calcutta. Each consisted of a mayor and 9 Aldermen, seven of whom with
the Mayor were required to be the natural born British Subjects and others might be subject of
some princely estates in India. The Mayor was to hold the office for one year only and the
Aldermen were to continue for life or so long as the resided in the town concerned, unless they
were removed on reasonable causes by the Governor in Council. However, they could appeal
against this removal to the King-in-Council. The Charter itself appointed the first Mayor and nine
Aldermen. The existing Aldermen and the Mayor held the election of a new Mayor every year.
Any vacancy that lay vacant among the provided for the establishment of Mayors Court in each
Presidency towns. Mayor and nine Aldermen had to sit as chief judge and Judges of the Mayors
Court. Mayor or Senior Aldermen together with two other Aldermen were required to fulfill the
quorum of the Court.

Administration of Civil Justice-

The Mayors Court was declared to be a court of record and was empowered to try, hear and
determine all civil suits, actions and pleas between party and party. The Court also exercised a
testamentary jurisdiction. It was empowered to grant probates of wills and administration to the
effects of intestates. Only this Court could deal with the suits that arose within the town and its
subordinate factories. Appeals from its decision might be made to the Governor and Council. In
causes involving under 1000 pagodas, the decision of the Mayor Court was final; if the sum
involved was above that amount, an appeal lay from the Mayor court to the King-in-Council.1 The
process of the Court was to be executed by the Sheriff; the junior members of that Court were
initially nominated but subsequently annually chosen by Governor in council.2
There was no reference in the charter as to what law the Mayors Court was to
apply in deciding the cases. It was merely provided that the decisions would be given according

1 Cowell: History and Constitution of the Courts and Legislative Authorities in India, p.15.
2 A.B. Kieth: A constitutional Legal History of India

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to justice and right. But in context of the Charter of 1661, it may be said that justice was to be
administered in accordance with the principles of English Law.

Administration of Criminal justice

The Mayors court had no criminal jurisdiction. It was conferred on the Governor and five senior
members of the council. They constituted a Court of Oyer, Terminer and Goal Delivery and were
authorized and required to hold Quarter sessions for the trial of all offences excepting high
treason. It meant that the concerned Court could undertake trials at least four times a year. The
Charter of George I recited that the criminal trials were to be conducted 'in the same or like
manner and from as near as the conditions and circumstances of the place and inhabitants will
admit as of any of our justices of the peace or commissioners of Oyer, Terminer and Goal delivery
do or may proceed by virtue of any commission by us granted for that purpose'.
Grant Jury and Petty Jury. -

Provisions were made for the help of the grand jury and petty jury. The two main
functions of the Grand jury were: -
A- to present the suspected person, and after a preliminary enquiry made and evidence
noted by the justice of the peace;
B- to decide on the evidence of the prosecution, whether the case was to be sent for the
trial or not. The function of the petty jury was to hear the both sides and try the issues of
fact. Only after returning a verdict of guilty by the Petty Jury, the Prisoner was to be
sentenced by the Court of Quarter sessions.
From the above discussion it appears that the executive
mainly shared the administration of Justice. The executive not only functions as a criminal court
but also heard appeals from the Mayor's Court. So far as the Mayor's Court is concerned the
principle of separation of judiciary and the executive was applied partially because the executive
exercised considerable influence in as much as Aldermen were either the servants of the
Company or such English Traders who were dependent upon Company's permission of their stay
in India.

Legislative powers-

Under the Charter of 1726 the Governor and Council of each presidency were authorized to make
by-laws, rules and ordinances for the good government of the Corporation and inhabitants of
their respective towns. They were also empowered to impose reasonable punishment and
penalties. The by-laws, rules and punishment for their breach was to be in conformity with
reason, and must also not be contrary to laws and statutes of England. They could be enforced
only after being confirmed in written by the Court of Directors of the company.

Working of Mayor Courts- conflicts between the Government and the Mayor's Courts: -

The period between 1726 and 1753 happened to be period of conflicts and disputes. The
independent attitude of Mayor's Courts at the presidency towns proved to be unpleasant to the
company. The Judges of Mayor's Court asserted themselves in the cases tried by them. The
Judges did not like executive interference of the company, because they thought that the crown
directly authorized them. There were cases where the government of a presidency directed by
the Mayor's Court to act in a particular direction and the latter paid no attention.

Conversion case- there arose a dispute between Governor Cowan and the Mayor's
Court in Bombay in 1739. A Hindu woman of Shimpi case was converted to Christianity.
Her son aged twelve years left her and went to live with a relative in Bombay. The

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 mother charged the relatives with an illegal detention of the boy and some jewels and as
a sequel the boy was ordered to be delivered to her mother by the Mayor's Court. The
heads of the caste of the Governor made a complaint. The Governor and Council held
the Mayor's Court had no jurisdiction to decide cases of religious nature of disputes
concerning castes among the natives. But the Mayor's Court observed that it had no
jurisdiction and the decision was not changed. The Governor reserved the decision of
Mayor's Court. This Conflict was referred to the Court of Directors of the Company in
England. The Court of Directors denounced the attitude of the Governor and Council and
issues orders to prevent repetition of such trany.

Case of Arab Merchant- In the same year another dispute arose. An Arab merchant
brought a suit in the Mayor's Court for the recovery of the valuable pearls, which were
alleged to have been extorted from him by a man who saved him from a burning boat at
the coast of Gujarat. The Defendant had already been tried for piracy and acquitted. The
Council made suggestions against the validity of the claim. But the Mayor's Court ignored
this suggestion and decreed the suit. In appeal the Governor in Council reversed this
decision by the casting vote of the Governor. Thus the relations between the two bodies
became very much strained. Similar events happened in Madras and Calcutta also.

Oath case of Bombay- In 1746 a dispute arose regarding the form of oath. In the case
the grand jury refused to make indictments unless the Hindu witnesses and the
interpreter were administered cow-oath instead of Geeta-oath and on that account two
successive sessions were held up while being sworn upon a cow a witness was to hold
the tail of a cow and to swear to speak truth.3
Another difficulty arose as a result of the trial of the natives. The Mayors Court
applied English Law while deciding the case among the natives and completely ignored
their peculiar customs and manners

Oath case of Madras - In 1736, in a Madras case the Mayor's Court insisted on
administering the pagoda Oath to two Hindus instead of the Geeta Oath but they
refused to take the pagoda Oath. The result was that they were imprisoned. This made
the Hindu residents very furious and they approached the Governor to interfere. The
result was release of the Hindus on parole for fear of breach of peace. Then a petition
was sent by the residents of Madras to the Directors of the Company to exempt them
from the jurisdiction of the Mayor's Court except in cases where both the parties had
agreed to have their case decided by the court. The Charter of 1753 removed this
difficulty.

Consequences of Charter of 1726

3 Fawcett: First Century of British justice.

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King George I issued a charter to the company on the 24th sep, 1726. The Charter became a
landmark in legal history of India due to its various vital provisions having far reaching
consequences. The year 1726 saw the abolition of the Court of Admiralty at Madras and
enlargement of powers of the Mayor's Court. By establishing the Mayor's Court at the three
presidency towns of Bombay, Madras and Calcutta. The charter introduced uniform judicial
machinery for justice in India. The Civil and Criminal Courts established under the Charter derived
their authority directly from the king and not from the company. In this respect, these courts
were superior to the Courts, which were established in 1686 by the Company. The King in
England, in whose name justice was administered in England, also became the fountain of justice
for courts in India. It added prestige and status to these Courts not only in India but also in
England. These Courts may therefore be said to be Royal Courts. The very fact that the Courts in
India derived from their authority from the king, gave rise to the introduction of new system of
appeals from Indian Courts to Privy Council in England. The common allegiance to the king, in the
field of judicial set up, paved the way for importing English ideas of law and justice, into India. It
was through the Privy Council that the principles of English Law were gradually applied in
deciding in Indian Cases where ever Indian Law was silent or defective according to English
Judges. Apart from this the deep-rooted English tradition of showing respect to the decisions of
the highest judiciary was also adopted in India. With the adoption of doctrine of precedent in
India, the principle of English law greatly influenced the Indian Law and legal Institutions. The
Charter of 1726 played an important role in introducing English Common and statute Law in
India. An important stage in the evolution of British Courts of Justice was reached with this
Charter. This appears to be the great truth and farsightedness in Fawcett's remark, " ...it meant
the authoritative introduction of English Law in the presidency towns and foreshadowed the
parliamentary interference that the first took shape in the Regulating Act of 1773," which laid the
foundation of codification of Indian Law. In words of Dr. Jain4 " thus was established a bridge
between the English and the Indian legal systems." turning 'a new leaf' in evolution of judicial
institutions. Due to tremendous significance the charter is usually characterized as "the judicial
charter."

Main Reasons or Aims of Issuing the Charter of 1726-

The main reasons which necessitated the issuing of Charter of 1726 are as follows

1. The judicial administration and the working of the courts, in the three Presidency towns
of India was unsatisfactory.

2. With the growth in Company's trade and commercial activities in India, the population of
British Settlements had increased considerably, and Therefore, more cases were coming
to the courts for adjudication.

3. The Company desired that the power of courts should be derived from a competent
authority so that their decisions would have a binding force and uniformity in judicial
administration could be achieved.

4. Encouraged by the successful working of the Corporation at Madras, the Company

wanted to establish similar Corporations at Bombay and Calcutta also.

5. Many Englishmen who settled in India died leaving behind them considerable movable
and immovable property. This created problems before the Company relating to
distribution and disposal of their assets. Although, the Mayor's Court of Madras
established in 1687 was empowered to decide testamentary cases but its decisions were
not recognised by the Court in England because it was a Court of the Company and not

4 Jain: Indian Legal history, 1972, Ch.6.

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 of British Crown. Therefore, the Company was involved in unnecessary litigation in
England at the instance of the relatives of the deceased who died intestate in India. To
avoid this, there was a need of a court in each Presidency which could take cognizance of
testamentary and intestate succession cases deriving their authority from the British
Crown. Thus, in order to solve the above mentioned problems and to establish an
effective administration of justice in the Company's settlements in the three
presidencies, the Judicial Charter was granted by the British King George I on September
24, 1726 at the instance of East India Company.

Defects in the Charter of 1726

After the Charter of 1726 was actually implemented and the Mayors Courts began their
functioning, gradually the defects and lacunae in the provisions of the Charter came into
limelight. It was realized that the Charter was not quite clear in its language. The working of the
Mayors Courts at Bombay, Calcutta and Madras created many difficulties for native Indians. For
the first time, the Mayors Court administered English law in India. The English law contained
both common law and the statute law. Nearly all the common law and statue law as it existed in
England in 1726 was introduced in the three presidency towns of India. It completely ignored the
Indian customs and traditions, and was hardly suitable to Indian conditions in those days. The
Mayor and Aldermen, who presided over the Mayors Court, were either senior servants of the
Company or dependent on the Companys pleasure for their stay in India. They had neither any
regular legal training nor any judicial experience to their credit. Evil consequences were therefore
bound to follow. As there was no specific mention about jurisdiction, the Courts decided that it
was empowered to exercise its jurisdiction even in such cases where both parties were native
Indians. All these created great dissatisfaction and unrest amongst the native inhabitants of each
presidency town.
The Charter of 1726 created a Corporation and a Mayors Court in each presidency town. The
Mayors Court was constituted to work independently but its relationship with executive.
Governor in Council was not stated clearly. In actual practice, the executive machinery
expressed its hatred and jealousy against the independent attitude of the Mayors Court. The
executive tried to dictate its terms to the judiciary. But the Mayor and Aldermen came into
conflict with the Governor in Council in many cases at Bombay, Calcutta and Madras. Instead
of the smooth working of these two wings executive and judiciary their relations became
severely strained in each presidency town.
The inhabitants of Bombay, Madras and Calcutta were the greatest sufferers due to the constant
conflicts between judiciary and the executive. It created an atmosphere of great unrest in all the
three presidency towns. A petition was sent to the Court of Directors of the Company, in its reply,
made it clear that conflicts should be decided among themselves (natives) according to their own
customs. If they request and choose them to be decided by English laws, then only the matter
can be pursued according to the directions of the Charter of 1726.

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 CHARTER OF 1687-

In 1687, James II delegated to the company the authority to establish a Municipal

Corporation at Madras. The Company passed a Charter on December 11, 1687 for the
establishment at Madras on English model, consisting of a Mayor, 12 Aldermen and 60 or
more burgesses. This Charter also created a Mayor's Court consisting of a Mayor and two
aldermen which formed the quorum. It exercised jurisdiction in civil matters where the value
of the cases exceeded 3 pagodas and in criminal cases with the assistance of juries. It was a
Court of Record and the Charter provided for the appointment of an expert in the law as a
recorder, to assist the Court.

Corporation under company's Charter of 1687-

In 1688, a Municipal corporation, a Western institution, was first set up in India in Madras
under a charter of 1687 issued by the company with the approbation of the King-in-Council.
The ideas was to associate the natives with Englishmen, both exercising certain powers and
privileges as Corporation, for municipal purposes of taxation in the town, to provide for the "
the speedier determination of small controversies of little moment, frequently happening
among the unarmed inhabitants" of the town, and instead of "the constant use of the law
martial in trivial concerns", to govern the inhabitants in a better way and increase the trade.
The corporation consisted of a Mayor, twelve Aldermen and sixty or more Burgesses. The
Mayor and three senior Aldermen were always to be covenanted English servants of the
company; nine Aldermen could belong to any nationality; and some of burgesses were to be
heads of several castes. The Mayor was to continue in office for one year and the Aldermen
during their lives or residence in Madras. A new Mayor was to be elected annually by the
Aldermen and Burgesses from amongst the Aldermen. Vacancies among the Aldermen were
to be filled by election from amongst the Burgesses, the Mayor, remaining Aldermen and
Burgesses voting. The Burgesses were to be elected by the Mayor and Aldermen. The
company nominated the first Mayor, Aldermen and twenty-nine Burgesses.

Mayors Court

The Mayor and Aldermen were to be a Court of record with the power to decide all civil and
criminal cases in a summary way according to justice and good conscience and the laws of
the Company. It granted probates of wills and letters of administration of the property of
deceased persons. It was to deal with offences by fine, imprisonment or corporal
punishment. A right of appeal to the Court of Admiralty was guaranteed in civil cases if the
offender was sentenced to lose life or limb. After the Court of Admiralty ceased to sit
regularly in 1704, appeals lay to the Governor-in-Council. Some uncertainly, however,
subsisted as to the power of the Mayor's Court to inflict capital punishment. In 1712, the
Governor-in-Council conceded that the Mayor's Court could, under the Charter, sentence a
criminal to death, and Court did so in certain cases of murder, but in 1718 the Governor-in-
Council expressed the view that the Mayor's Court could not award capital punishment in
cases of Englishmen, though it could do so in those of the native criminals.
The Mayor and two Aldermen formed the quorum of the Mayor's Court sitting
once a fortnight. An English covenanted servant of the Company, skillful in the laws, was to
be nominated by Mayor and Aldermen as the recorder of the court, but the first Recorder
was Sir John Biggs, nominated by the Charter, to assist it in its judicial work. An Englishmen,
well skilled in the native languages, was to work as the clerk of the peace. The Mayor and
three Aldermen were to be the justices of the peace. The power to retrieve execution and
grant pardons was reserved to the Governor in Council.

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Jury System

The Jury System appears to have been followed in the admiralty and Mayor's Courts in their
Criminal Proceedings.

Choultry Court

The Choultry court was continued with a diminished jurisdiction. Two of the Aldermen who
were justices of the Peace, the senior Justice being called the Chief Justice, were to sit twice a
week at Choultry to deal with cases of petty offences and small matters of civil nature up to a
valuation of 2 pagodas. Thus the Choultry became a Court of petty jurisdiction.
The Court of Requests took the civil jurisdiction of the Choultry Court of away
in1753, but it continued with its criminal jurisdiction till 1800.

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 DISTINCTION BETWEEN THE MADRAS CHARTER OF 1687 AND THE CHARTER OF 1726

I. Scope of Application-
The charter of 1687 applied to madras only whereas the 1726 charter applied to all
presidency towns.

II. Jurisdiction-
The old Mayors Court at Madras was empowered to exercise its jurisdiction over all civil
and criminal matters and appeal was allowed to go to the Admiralty Court. On the other
hand, the Mayors Court established in 1726 were entrusted with civil jurisdiction only,
and from their decision, first appeal was allowed to the Governor in Council in respective
presidency town, further appeal was allowed to go to the King-in-Council in all cases
involving a sum of 1000 pagodas or more.

III. Law and procedure-

No specific rules of law and procedure were laid down for the old Mayor's Court,
established by the Charter of 1726, were required to follow a well defined procedure
based on English Law and practice. Thus the former can be said to be governed more by
principles if equity whereas the latter was governed by English Law.

IV. Creation-
The Mayor's Court established in1687 was a Company's Court. Three Mayor's Court
established in 1726 were Royal Courts as they were created by King's Charter of 1726.
Naturally, the Courts in England recognized the status of these Courts.

V. Recorder-
A lawyer known as Recorder was attached to the old Mayor's Court at Madras in order to
advise the Court, while no such officer was attached to the three new Mayor's Courts.

VI. Participation of Indians-

In the old Mayor's Court at Madras some Indians were authorized to sit as judges
together with English Aldermen. The Charter of 1726 specifically provided for this
purpose but it may be stated that the representations of Indian under the Charter of
1726 was practically negligible. In fact no Indian was ever appointed.

VII. Position of Executive-

The Charter Act 1726 entrusted judicial powers to the Governor-in-Council who had all
the executive powers. This was not so under the provisions of the Charter of 1687. The
Charter of 1687 is considered to be superior than the Charter of 1726 as the modern
progressive ideas of separation of judiciary from the executive were deeply rooted in it.

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 MAYOR'S COURT UNDER THE CHARTER OF 1687 AND 1726: COMPARISION

Charter of 1687 had also established a Corporation and Mayor's Court in Madras. But apart from
the apparent similarity of names there was a vast difference between the two charters. The main
differences may be enumerated as under:

The Charter of 1687 applied to Madras only while the Charter of 1726 applied to the all
three presidencies.

Mayor's Court established under the Charter of 1726 had the Jurisdiction in Civil matters
only in addition to its testamentary and probate jurisdiction, while the court under the
Charter of 1687 had the jurisdiction in criminal matter also.

Appeals against the judgments of the Mayor's Court under the Charter of 1687 went to
the Court of Admiralty while from the Charter of 1687 went to Court of Admiralty while
from the Mayor's Court under the Charter of 1726, to the king-in-Council.

The Mayor's Court of 1687 was a court of the Company while the Court established
under the Charter of 1726 was the Court of the Crown.

The Mayor's Court under the Charter of 1687 was better in one respect that it had a
lawyer-member called Recorder while in the Court under Charter of 1726 there was no
provision for any lawyer-member.

In procedural matters, the Court under the Charter of 1726 had to observe the
technicalities of the Courts in England while the Court under the Charter of 1687 was
guided by its own procedure of convenience.

In the Court under the Charter of 1687 there was good representation of Indians while
under the Charter of 1726 in spite of the provision for two Indian members none was
ever appointed in practice.

Under the Charter of 1726 the Criminal jurisdiction was completely assigned to the
executive, i.e., the Governor and Council, while under the earlier Charter it belonged to
the Mayor's Court and the Admiralty Court.

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 CONCLUSION: CHARTER OF 1726 V. MADRAS CHARTER OF 1687

The Charter of 1726 followed the model of the Madras Charter of 1687 insofar as both created
the Corporation and the Mayor's Courts. But there were some notable difference between the
two Charters. The Charter of 1726 applied to all presidency Towns, while Charter of 1687 applied
to Madras only. The Mayor's Court of 1726 was to have jurisdiction in civil cases only while the
old Madras Mayor's Court had a wider jurisdiction and dealt with both civil and criminal cases.
Appeals from the new Court lay first to the Governor and Council and then to King-in-Council,
while appeals from the old Court went to Admiralty Court. The old Court was the company's
Court having been created through its own Charter; the new Court was a Royal Court having been
brought into existence by the King's Charter. The old has a lawyer attached to it as a Recorder to
advise it on legal matters; the new Court had no such officers although its judges were by no
means more learned in law than those of the old Court. The old Court was more a Court of equity
rather than of law, was not bound by any technical rules of law and procedure, and decided case
according to the judges' sense justice. The new Court was a Court of English law, followed English
procedure and, therefore, the absence of a lawyer as its adviser was a major drawback and a
source of weakness for it.
During the period of 1687-1726, the Mayors Court and the Admiralty Court
administered criminal justice in Madras. The executive did not participate in this task. The
Charter of 1726 vested criminal judicature in the executive and this certainly was 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 govt. is to keep judicial and executive powers separate in order to secure liberty and
property of the people. From this point of view, the Charter of 1726 was inferior to that of 1687.
Similar was the position with respect to the Indian participation. The
Madras Corporation of 1687 had a sizable Indian representation, while the Corporation of 1726
was to have only two non-English Aldermen and in practice, non-was ever appointed. The
Mayor's Court of 1726 was thoroughly English Court with no Indian participation and so it
compared unfavorably with the old Madras Mayor's Court in this respect.

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 BIBLIOGRAPHY

B.M. Gandhi, Landmarks in Indian Legal and Constitutional History.

J.K. Mittal, Indian Legal History.

M.P. Singh, Outlines of Indian Legal and Constitutional history.

J.K. Mittal, Indian And Constitutional Legal History.

M.P. Jain, 7th edn. ; Outlines of Indian Legal and Constitutional history.

M.P. Jain, 8th edn. ; Outlines of Indian Legal and Constitutional history.

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