Indian Legal History- Charter of 1726

Background

By 1726, there were three presidency town ie. Bombay, Calcutta and Madras. In earlier post, we discussed administration in those towns. There was different administration in each of those towns.
Laws applied were different, procedures were different and there was no uniformity of application of laws in those towns.
Court's decision and laws were not recognised in England, as Company used to apply random laws arbitrarily. Court's before 1726 derived their authority from Company and not from the crown.

English cases related to testamentary (Will related) and succession (Specifically intestate) increased with increase in territorial expansion and expansion of business of Company. Population under control of Company and these presidency town also increased.

So In short, due to increase in cases, increase in population, increase in business, trade and commerce, and lack of uniformity it was felt that reforms are needed. In these circumstances Charter of 1726 was issued by Crown, which established Corporation and Mayor's court in each presidency town.
Well, similar type of setup developed in last stage of Madras settlement as discussed here Madras Settlement

Corporation

Charter of 1726 provided for establishment of Corporation. Similar corporation was already in place in Madras before 1726 albeit for different purpose (To extract tax)

Some features of Corporation

• It was to consist of Mayor and 9 Aldermen
• Out of 9, 7 Aldermen to be from British. And two from presidency towns. (Only two..!!)
• First Mayor and Aldermen was nominated by Charter, but subsequently these posts were elected
• Tenure- Mayor's tenure was for year, whereas Aldermen could continue for life, or as long as he stays in Presidency town
• Governor and Council was empowered to dismiss any Mayor and Aldermen. 
• Appeal against such dismissal lie in King in Council.

Mayor's Court

Charter of 1726 also provided for establishment of Mayor's court.

Below are some characteristics of these courts.

• Mayor and Aldermen were to Constitute these courts. (Of course)
• Mayor or Senior Aldermen along with two other Aldermen were to form Quorum of the court. Quorum means minimum number of people to pass a judgement.
• Mayor's court was court of record. (What is court of record ? It's court which recorded their proceedings, like cases, judgements, testimony bla..bla..bla)
• These courts were to have jurisdiction over civil matters  in presidency town and subordinate factories.
• Appeal from these courts lie in Governor and Council, and appeal from Governor's court in Kings or Privy Council
• Decisions of Governor and Council below 1000 Pagodas was final. No appeal in such cases(Roughly 3500 Rs. Read here about Pagodas) 
• Mayor's court was also conferred with testamentary jurisdiction, meaning it can issue letters of administration to legal heir of Englishmen
• Mayor's court also has power to punish people who make contempt of such court.

Charter was not clear about which laws Mayor court to apply, it stated that court should give judgements based on justice and right. 

Procedures applied by these courts were similar to that of courts in England.

For example, Governor or executives was to appoint officer, Sheriff.

When aggrieved party wrote complaint to Court, Court issued summons directing the sheriff to order the defendant to appear before the Court on the day Time fixed by the Court.

When defendant refuse to obey order, this sheriff was ordered to arrest such defendant. 

Also bail on security was granted.

Criminal Jurisdiction

Mayor's court was conferred power to try civil cases. For criminal matters, there was different setup.

Governor and Five members of Governor's council were to act as Justice of Peace, which would try criminal cases.

They have power to arrest and punish persons for petty criminal offences.

4 times a year, they help quarter session, for trials of all criminal offences.

Procedure of these trials was similar to that of courts in England.

Along with these courts, certain by-laws, rules, ordinance power was given to governor and his council. This council could also provide for punishment in breach of such by-laws, rules and ordinances. 

Few Cases of Conflict between Judiciary and Executive (taken from Kailash Rai and other sources)

In  Bombay, conflict was related to interfere by Judiciary in religious matter. 

A Hindu woman of Shimpi caste changed her religion, and because of which her son left her and started staying with his other family. Woman filed a case that relatives unlawfully detained boy and some jewels.

Court order hand over of boy to mother. Governor and Council thought it as unnecessary intervention from judiciary in faith. Subsequently Mayor was dismissed from post of "Secretary to council".

In Madras also, conflict was over jurisdiction over religious matter. Court directed Hindu to take pagoda oath, instead of Gita(Holy book) Oath. 

Causes for above conflicts were many. First, Charter of 1726 itself was not clear about jurisdiction of Court as well as Governor and Council. There were also ego issues, as both Executive and Judiciary thought themselves superior. Author Kailash Rai even mentioned that they suffered from Superiority complex.

Conclusion

To conclude, Charter of 1726 tried to improve judicial administration in certain aspect. First, it brought uniformity in all presidency town. Second, for the first time (Or maybe second), there was an efforts made to separate judiciary from executives.

However there were some drawbacks too. Natives were not represented much, only two Aldermen out of 9 in Corporation. Also there was scant regard for local customs. Even if efforts were made to separation of power, Executive-Governor and his council would trump the Mayor and they used to dismiss the Mayor who don't tow their line. 

More reforms came in 1753.

Thanks,

Legalfundaa