History of Courts Notes | B.A. LL.B. (Five Year Course) Semester 3 | Mumbai University | munotes

An Act of Parliament is a statute passed by the Parliament at Westminster. From 1773 onwards Parliament legislated for India directly, and the Regulating Act, the Charter Acts, the Indian Councils Acts, the Government of India Acts and the Indian Independence Act are all Acts of Parliament. Several of them are called "Charter Acts" because they renewed the Company's charter, which is a name that has confused generations of students. A Charter Act is an Act of Parliament, not a charter.

A regulation was a law made in India by the Governor-General in Council for the Company's own territories. Cornwallis's forty-eight regulations of 1793 are the famous example. They were not Acts, because until 1833 the Indian legislature could not make Acts; they were subordinate law, made under a power given by an Act.

Jurisdiction means the authority of a court: what it may decide, over whom, and where. Almost every dispute in Module I is a dispute about jurisdiction, and it is worth noticing early that jurisdiction has three separate dimensions. There is jurisdiction over subject matter (may this court hear a revenue case at all?), over persons (may it summon this defendant?), and over territory (does its writ run in this district?). The Supreme Court at Calcutta and the Governor-General in Council quarrelled about all three at once.

Original jurisdiction means the power to hear a case for the first time, as a trial court. Appellate jurisdiction means the power to hear an appeal against another court's decision. A single court can have both, and in India the High Courts do: that is exactly what the Act of 1861 gave them, because it merged a trial court with an appellate one.

A Presidency Town meant Madras, Bombay or Calcutta: the three settlements where the Company had its headquarters, each under a President and Council. The mofussil meant everywhere else, the interior, the country districts. That single distinction runs through the whole of Modules I and II. For a century, English law and King's courts applied in the Presidency Towns and Indian law and Company courts applied in the mofussil, and the boundary between them was the source of every quarrel in this paper.

A Crown court was a court created by the Crown's charter, whose judges were appointed by the Crown and whose authority came from the King. A Company court was created by the Company, staffed by the Company's servants, and answerable to the Company. The Mayors' Courts of 1726 were Crown courts, because a royal charter created them. The Adalats of 1772 were Company courts. The Supreme Court of 1774 was a Crown court and the Sadar Diwani Adalat was a Company court, and that is why they could not be made to agree.

Two more words you will meet constantly. The Diwani was the right to collect the revenue of a province and to administer civil justice in it; it was a Mughal office, and the Company obtained it for Bengal, Bihar and Orissa in 1765. The Nizamat was the criminal side of the same government: the maintenance of order and the punishment of crime. Diwani courts are therefore civil courts and Nizamat courts are criminal courts, and the Sadar Diwani Adalat and the Sadar Nizamat Adalat are the chief civil and chief criminal courts of the Company's territories.

How this book is arranged, and why in this order

The book follows the University's own four modules and its own order, which is not chronological and is not meant to be.

Module I is the beginning: the charters from 1600, the Mayors' Courts, Warren Hastings's plans, the Regulating Act of 1773 and the Supreme Court it created, the seven famous proceedings that showed what was wrong with it, the Settlement Act of 1781 that answered them, and Cornwallis's three judicial plans.

Module II is the consequence: two systems of courts in one country, how they collided, how the Indian High Courts Act 1861 ended the split, and the appeal to the Judicial Committee of the Privy Council in London that sat above everything until 1949.

Module III jumps to 1950 and asks what the Constitution made of all this: the Supreme Court, the High Courts, the subordinate courts, the writs, and the three ideas the whole structure is supposed to serve, the rule of law, the independence of the judiciary and the separation of powers.

Module IV goes back to the beginning twice more, once to follow the legislature from the Charter of 1600 to the Indian Independence Act 1947, and once to follow the legal profession from pre-British India to the Advocates Act 1961 and the law reports.

So you will meet the Charter of 1600 in chapter 2 and again in Module IV, and the Government of India Act 1935 in Module II and again in Module IV. That is not repetition. The same document is being read for two different questions: what did it do to the courts, and what did it do to the legislature.

The one date that organises everything else

If you remember nothing else from this chapter, remember this. India did not have one system of courts until 1861.

From 1726 there were King's courts in the three Presidency Towns applying English law. From 1772 there were Company courts in the mofussil applying Hindu law to Hindus and Muslim law to Muslims. Those two systems ran side by side for nearly ninety years, with different judges, different procedure, different law, and separate appeals to London. Everything in Module I is about how the two came into existence and collided; the first half of Module II is about how they were finally merged.

A worked example

You are asked, in an examination, "Trace the development of the courts in India from 1600 to 1950." That is the whole paper in one line, and here is how a student who has read this book would build the answer.

Fix the two systems and the date they end. English law and King's courts in the Presidency Towns; Indian law and Company courts in the mofussil; and 1861, when one court replaced both.

Then take the King's side in order. The Charter of 1600 and the power to make law; 1661, the power to judge all persons living under the Company according to the laws of England; 1687, the first Mayor's Court at Madras under the Company's seal; 1726, Mayors' Courts at all three towns under the Great Seal, with an appeal to the King in Council; 1753, the amended charter; 1773 and 1774, the Regulating Act and the Supreme Court at Fort William; 1781, the Settlement Act.

Then take the Company's side. Hastings's plan of 1772 and the Adalats; the plans of 1774 and 1780; Cornwallis in 1787, 1790 and 1793.

Then join them. The conflict of the two systems, the Indian High Courts Act 1861, the letters patent of 1865, and the appeal to the Privy Council until 1949.

Then finish under the Constitution. The Supreme Court, the High Courts, the subordinate courts, the writs, and the three ideas of Module III.

Notice what the answer is made of: dates attached to instruments, and instruments attached to institutions. That is what this subject rewards, and it is why every chapter in this book names the charter, the Act or the regulation it is about in its own heading.

What beginners get wrong

"The Company was given the power to hold courts in 1726." No. The power to make laws and impose punishments was in the Charter of 1600 itself, and courts of a kind existed at Madras from 1687. What 1726 did was to create Crown courts on a uniform pattern at all three settlements.

"The Supreme Court at Calcutta became the Supreme Court of India." No. The Supreme Court at Fort William was abolished in 1862, when the Calcutta High Court replaced it. The Supreme Court of India was created by the Constitution in 1950, out of the Federal Court. The two are different institutions with the same name, ninety years apart.

"British India had no rule of law." Too simple, and the paper will not reward it. British India had courts that decided against the Government, and a Council that once sent sepoys to stop a sheriff. Module III asks you to weigh both, which is a different exercise from choosing a side.

Quick revision

• The subject runs from the Charter of 1600 to the Constitution of 1950, in four modules.
• A charter is a Crown grant, also called letters patent; an Act is passed by Parliament; a regulation was made in India under a power given by an Act.
• Presidency Towns are Madras, Bombay and Calcutta; the mofussil is everywhere else.
• Diwani is civil and revenue; Nizamat is criminal.
• Crown courts came from a royal charter; Company courts were the Company's own.
• Two separate systems of courts ran from 1772 to 1861, and 1861 is the date they were merged.

Test yourself

1. What is the difference between a charter and a Charter Act? A charter is a grant by the Crown under the Great Seal, creating a corporation or a court or a privilege. A Charter Act is an Act of the British Parliament renewing the Company's charter, and is a statute. The Charter of 1726 is a charter; the Charter Act of 1833 is an Act of Parliament.

2. What did "mofussil" mean, and why does it matter to this paper? Everywhere in the Company's Indian territories outside the three Presidency Towns. It matters because for nearly ninety years the law and the courts in the mofussil were entirely different from those in the Presidency Towns, and the boundary between them produced the disputes in Module I and the reform in Module II.

3. Name the two dimensions of jurisdiction that the Supreme Court at Calcutta and the Governor-General in Council quarrelled about. All three, in fact: subject matter (whether a revenue matter could be examined by the Court at all), persons (who counted as being in the Company's service, and so suable), and territory (whether the Court's process ran outside Calcutta).

4. Why is the same document, the Charter of 1600, taught twice in this book? Because MU's syllabus asks two questions of it. Topic 1.1.1 asks what it did for the administration of justice; topic 4.1.1 asks what it did for the legislature. It granted both powers in the same sentence.

The repugnancy rule, and why it never went away

Two conditions were imposed, and it is worth separating them because students commonly merge them into one.

1. The law made must be reasonable.
2. It must not be contrary or repugnant to the laws, statutes or customs of England.

The second condition is called the rule against repugnancy, and it is the first restriction ever placed on law-making for India. A rule made by the Company that contradicted English law was void.

That rule outlived the Company by a century and a half. The Charter Act of 1833 gave the Indian legislature power to make laws that had the same force as Acts of Parliament, but only subject to restrictions; the Indian Councils Act 1861 listed what the Council could not touch; the Government of India Act 1935 provided for repugnancy between Federal and Provincial laws; and article 254 of the Constitution of India is a repugnancy clause today. The idea that a subordinate legislature's law fails where it conflicts with a superior law starts here, in a charter granted to a spice-trading corporation.

What the charter did NOT do

It gave the Company no power over anybody except its own members and servants. A merchant of Surat, a weaver of Bengal or a servant of the Mughal Emperor was outside it entirely. The Company had no territory, no subjects and no jurisdiction over anyone but its own employees, and would have none for sixty years.

It created no court. The power to fine and imprison had to be exercised by somebody, and in practice it was exercised by the Governor and Council of a factory. A factory, in this subject, is not a place where things are manufactured: it is a trading post, the place where the Company's factors, meaning its agents, lived and did business. Surat was a factory; so was Madras before it became a fortified settlement.

It gave no power to punish crime. Fines and imprisonment for breaches of the Company's own orders are a long way from trying a man for murder, and the Company spent most of the next century acquiring, charter by charter, the criminal powers it needed. That story is the next chapter.

A worked example

Imagine a Company servant at Surat in 1615, a factor named Thomas Aldworth, who trades privately on his own account in defiance of the Company's standing orders.

Under the charter the Company's general assembly in London may make an ordinance forbidding private trade. That ordinance may impose a fine, or imprisonment, on a servant who breaks it. The President and Council at Surat may then fine Aldworth, or confine him, and ship him home.

Now change the facts. Aldworth kills a fellow factor in a quarrel. Nothing in the Charter of 1600 permits the President and Council to try him for murder or to hang him. The power granted is over the Company's own discipline, and homicide is not a matter of Company discipline. In practice such a man had to be sent to England for trial, which across a voyage of six months was no remedy at all. Closing that gap took the Company most of a century, charter by charter: the charter of 31 May 1609 confirmed and extended the Company's privileges without altering its constitution, twenty-four more followed between 1609 and 1639, and the powers that made a real criminal jurisdiction possible came with the charter of 1661 and the Admiralty charters of 1683 and 1686. Those are the next chapter.

Distinctions worth having straight

What beginners get wrong

"The Charter of 1600 established the East India Company's courts in India." It did not. It gave a power to make rules and to punish breaches of them. Courts, in any sense a lawyer would recognise, arrive with the Charter of 1661 and, on the civil side, with the Madras charter of 1687.

"The monopoly was permanent." It was granted for fifteen years, renewable, and it was renewed and enlarged many times. It ended piece by piece: for India by the Charter Act of 1813 and altogether by the Charter Act of 1833.

"Repugnancy meant the Company had to apply English law in India." No. It meant the Company's rules could not contradict English law. Applying English law to inhabitants of India is a much later and much more contentious development, and it arrives with the Mayors' Courts.

Limits and criticism

The charter is a commercial instrument and reads like one. Its drafters were thinking about ships, customs duties and bullion exports, not about justice. The power of legislation is squeezed into one clause among many, and the words "reasonable" and "not repugnant" are the only guidance given about how it was to be used. For a body that would in time govern a subcontinent, that is a slender foundation, and the looseness is not accidental: nobody in 1600 imagined it would ever be needed for more than a few hundred men in a few trading posts.

The deeper criticism belongs to Module IV rather than here. A power to legislate for India was granted by an English Queen to an English corporation without a single Indian being consulted, and the same fact is true of every instrument in this book until the Indian Councils Act 1861 and, in any real sense, until much later than that.

Quick revision

• Granted 31 December 1600 by Queen Elizabeth I.
• Incorporated "The Governor and Company of Merchants of London, Trading into the East Indies", with perpetual succession and a common seal.
• Monopoly of trade beyond the Cape of Good Hope, for fifteen years.
• Power to make "Laws, Constitutions, Orders and Ordinances" and to impose imprisonments, fines and amerciaments.
• Limited by the repugnancy rule: the laws must be reasonable and not contrary or repugnant to the laws, statutes or customs of England.
• Power extended over the Company's own servants only. No court, no territory, no criminal jurisdiction over strangers.

Test yourself

1. State the two conditions the Charter of 1600 attached to the Company's power of legislation. That the laws be reasonable, and that they be not contrary or repugnant to the laws, statutes or customs of England.

2. Over whom could the Company exercise the powers granted in 1600? Over its own members and servants only. It had no authority over Indians, over servants of the Mughal Emperor, or over Englishmen not in its employment.

3. Why is the repugnancy rule important beyond 1600? Because it is the first limit ever placed on law-making for India, and the same idea reappears in every constitutional instrument down to article 254 of the Constitution.

4. Was the Charter of 1600 a statute? No. It was a grant by the Crown under the Great Seal, that is, letters patent. Parliament did not begin legislating for India until 1773.

5. If a Company servant at Surat in 1620 committed murder, could the President and Council try and hang him under the Charter of 1600? No. The charter gave power to fine, imprison and amerce for breaches of the Company's ordinances, not to try capital crime. Criminal powers were acquired in later charters, beginning with 1615 and enlarged in 1661 and 1683.

What matters for this paper is not the year but the point chapter 20 made about the Charter of 1600: a factory is a trading post, not a jurisdiction. The Company's men at Surat lived under the Mughal Emperor's government and under the Company's own ordinances as against each other, and it was the Charter of 1661 that first gave a Governor and Council power to judge all persons living under them.

The Charter of 1609, and the twenty-four that followed

James I confirmed and extended the Company's privileges by the charter of 31 May 1609, making the trade monopoly perpetual instead of terminable at fifteen years, but making no remarkable alteration in the Company's constitution. Twenty-four further charters were granted between 1609 and 1639, and none of them changed the judicial position.

It is worth knowing that the monopoly itself was challenged and upheld. The Court of King's Bench decided in favour of the Company in East India Company v. Sands, known as the great case of monopolies, on the narrow ground explained in a later case that the charter only prohibited trade with infidels, with whom the King's subjects were not to communicate without his licence. We name the case for that single point and no more; our source records the decision and its ground, not its reasoning.

The Charter of 1661: the turning point

The charter of 3 April 1661 (13 Charles II) is the one to remember from this chapter, and the reason is a single grant of power.

Until 1661 the Company's charters had conferred nothing that could not have been given to any ordinary trading company. The Charter of 1661 gave privileges of an entirely new kind. It placed the Company's factories under its own Governors, authorised it to appoint Governors and other officers, and gave the Governor and Council of each settlement power to judge all persons living under them, in all causes whether civil or criminal, according to the laws of England, and to execute judgment accordingly.

Read that clause slowly, because four things in it are new.

1. All persons living under them, not only the Company's servants. For the first time an Indian resident of a Company settlement was within the Company's judicial power.
2. All causes, civil or criminal. Not merely fines for breaches of the Company's orders: theft, assault, debt, contract, homicide.
3. According to the laws of England. The law to be applied is named, and it is English law.
4. And to execute judgment. A power to sentence is worth nothing without a power to carry the sentence out, and it is given expressly.

A worked example: how a settlement used the power

The clause sat unused at Madras for seventeen years, which is itself instructive: a power in a charter is not a court until somebody sets one up.

On 18 March 1678, the inhabitants of Madras having greatly increased and complaints having been made that there was no way of deciding cases beyond the reach of the existing petty court, the Agent and Council resolved that under the Charter of 13 Charles II they had power to judge all persons living under them in all cases, civil or criminal, according to English law. They resolved that the Governor and Council should sit in the Chapel in the Fort every Wednesday and Saturday to hear and judge all causes, and that the Justices of the Choultry and the constables under them should execute the court's orders, meaning its writs, its summonses for jurymen, its executions after judgment and its arrests of criminals.

That body is sometimes called the High Court of Judicature at Madras, and it is a court in every ordinary sense: fixed sitting days, a place, a defined jurisdiction, jurors, process and officers to execute it.

It did not replace what already existed. A Choultry was a public building in a south Indian town, used as a resting place and as a court, and the Court of the Justices of the Choultry at Madras had been deciding small matters for years: small misdemeanours, breaches of the peace, and actions for debt not exceeding fifty pagodas. A pagoda was a gold coin of southern India, and the figure fixes the Choultry court as a small-causes court. It kept that work after 1678.

So by 1678 Madras had two courts: a superior court of the Governor and Council for serious civil and criminal causes, and an inferior court of the Justices of the Choultry for small ones. That two-tier shape is the shape the Charter of 1726 would give to all three settlements.

Bombay: territory, and a court for it

The island of Bombay came to Charles II from the crown of Portugal as part of the dowry of Catherine of Braganza, whom he married in June 1661. The King found it expensive to hold, and granted it to the Company in 1668, in the twentieth year of his reign.

Bombay therefore differs from Madras and Calcutta in a way worth noticing: it came to the Company as territory of the Crown transferred to the Company, not as a settlement acquired from an Indian ruler. The Commissioners sent from Surat to take possession asked for a Judge Advocate to be appointed, because the inhabitants were accustomed to the civil law, that is, the Roman-based law the Portuguese had administered.

As a temporary measure two courts were formed: an inferior court of a Company civil officer assisted by Indian officers, taking cognisance of disputes under two hundred xeraphins (a silver coin of Portuguese India), and a superior court of the Deputy Governor and Council whose decisions were to be final and without appeal except in cases of the greatest necessity. The Court of Committees in London approved the plan generally, asked that trial by jury be introduced, and declined to appoint a judge learned in the civil law, fearing that such a person might promote litigation and might not obey orders.

That refusal, and the reason given for it, is the theme of the whole of Module I in one sentence. The Company wanted courts, and did not want judges it could not control.

The Admiralty charters of 1683 and 1686

The charter of 9 August 1683 (35 Charles II) authorised the establishment of Courts of Admiralty at such places as the Company should think fit. Admiralty jurisdiction is jurisdiction over maritime matters, principally over ships, seamen, freight, salvage and, importantly for the Company, prize, meaning enemy ships and cargo captured at sea and condemned by a court before they can lawfully be sold. The charter of 12 April 1686 (2 James II) reconstituted those courts and extended their jurisdiction.

Two things follow from these charters that matter to this paper.

First, they brought the first professional lawyers from England to hold judicial office in India. A Judge Advocate was the judge of such a court. Dr John St John, the only person learned in the civil law sent out under the 1683 charter, was appointed judge of the court at Surat, to which Bombay was then subordinate, by a commission from the King of 6 February and one from the Company of 7 April 1684. Sir John Biggs, formerly Recorder of Portsmouth, was appointed Judge Advocate at Madras under the charter of 1686.

Second, and more revealing, both men fell out with the Governors at once. Dr St John became involved in disputes with Sir John Child, the Governor, who confined his jurisdiction to maritime cases and appointed a Mr Vaux to be judge in civil actions. At Madras, because no Judge Advocate had arrived, the President of the Council was appointed to fill the office, which caused such dissatisfaction that the President and Council resolved instead to continue the old court under the Charter of 13 Charles II until a Judge Advocate should arrive, which did not happen until 1687.

Distinctions worth having straight

What beginners get wrong

"The Company got the power to try criminal cases in 1726." It got it in 1661. What 1726 supplied was a uniform court structure created by the Crown rather than by the Company.

"The Charter of 1661 created courts." It created a power. Madras acted on it in 1678, seventeen years later, and only after complaints from the inhabitants. A charter is an authority to act, not the act.

"Admiralty courts were about shipping and so are irrelevant to a history of courts." They are relevant for two reasons: they were the first courts in India presided over by a trained judge sent from England, and the pattern of what happened to those judges, sidelined by the Governor within a year, is the pattern that repeats in 1780 on a much larger scale.

Limits and criticism

The judicial arrangements of this period have one incurable defect and it is not a technical one. In every settlement the judge was, or was appointed by and removable by, the executive that was also the Company's trading management. The Governor sat as judge in the morning and bought pepper in the afternoon, and the parties before him were frequently his own colleagues, his subordinates, or the Company itself.

The Court of Committees said so in terms when it refused Bombay a civil lawyer: such a person might promote litigation and might not obey orders. A judge who obeys orders is not exercising judicial power, and the Company understood that perfectly well. It preferred obedience, and would go on preferring it until Parliament took the choice away in 1773.

Quick revision

• The Company's first factory in India was at Surat, the Mughal Empire's chief western port; the year is not settled in the sources here, 1612 to 1613 being the years usually given.
• 31 May 1609, James I: privileges confirmed and extended, monopoly made perpetual; no change in judicial powers. Twenty-four further charters to 1639.
• 3 April 1661, Charles II: power to judge all persons living under them, in all causes civil or criminal, according to the laws of England, and to execute judgment. The turning point.
• 1668: Bombay granted to the Company by Charles II, having come to the Crown in Catherine of Braganza's dowry. Two courts formed there; London asked for trial by jury and refused a civil lawyer.
• 18 March 1678: Madras acts on the 1661 charter. Governor and Council sit in the Fort chapel on Wednesdays and Saturdays. The Justices of the Choultry keep small causes up to fifty pagodas.
• 9 August 1683 and 12 April 1686: Courts of Admiralty; the first professional judges in India, Dr John St John at Surat and Sir John Biggs at Madras. Both were sidelined by the Governors.

Test yourself

1. What exactly did the Charter of 1661 add to the Company's powers? Power in the Governor and Council of each settlement to judge all persons living under them, in all causes whether civil or criminal, according to the laws of England, and to execute judgment. It extended the Company's judicial reach from its own servants to everybody in its settlements, and it named English law as the law to be applied.

2. Why did seventeen years pass between the Charter of 1661 and the Madras resolution of 1678? Because a charter confers a power and does not exercise it. The Agent and Council acted only when the population had grown and complaints were made that cases beyond the Choultry court's small jurisdiction could not be decided at all.

3. What was the Court of the Justices of the Choultry, and what was left to it after 1678? The petty court of Madras, sitting in the choultry. After 1678 it retained small misdemeanours, breaches of the peace, and actions for debt not exceeding fifty pagodas.

4. Name the two professional judges sent to India under the Admiralty charters, and say what happened to each. Dr John St John, judge of the court at Surat from 1684, whose jurisdiction Governor Sir John Child confined to maritime cases while appointing Mr Vaux to try civil actions; and Sir John Biggs, Judge Advocate at Madras under the charter of 1686, who arrived only in 1687 and was made Recorder of the new Mayor's Court there.

5. What does the Court of Committees' refusal to send a civil lawyer to Bombay tell you about the Company's idea of a judge? That it wanted a court whose decisions it could predict and whose officer would obey its orders. It gave both reasons openly: that a trained lawyer might promote litigation and might not obey the orders sent to him.

The Company's seal, and why it decides everything

The most important fact about the 1687 charter is not in its terms. It is in how it was issued.

At a Cabinet Council held on Sunday 11 December 1687, the question was discussed whether this charter should proceed from the King under the Great Seal of England. The Governor of the Company was commanded to attend, and advised against it. His reason is worth having in mind for the rest of Module I: he said that no person in India should be employed by immediate commission from His Majesty, because "the wind of extraordinary honour in their heads" would probably make such men so haughty and overbearing that the Company would have to remove them, as had happened with Dr St John and Sir John Child.

The King agreed, on the footing that if the charter went under the Company's seal the corporation would always be in some measure subject to the control of the Company's President and Council. And so it was settled.

That single decision is the difference between 1687 and 1726, and the consequences run through the whole paper.

A court set up by the body it is expected to judge is not independent of that body, and the Company said in terms that this was the object. A court set up by the Crown is a different thing, and the men who sit on it know it.

A worked example

Take two disputes, forty years apart, and follow each.

Madras, 1690. A Portuguese merchant sues an English factor for the price of goods. The suit is heard by the Mayor and Aldermen under the 1687 charter. If the merchant is dissatisfied, his complaint lies within a structure the Company controls, because the corporation itself exists at the Company's pleasure under the Company's seal. If the factor is a servant whom the President wishes to protect, the President is not without means.

Madras, 1730. The same dispute is heard by the Mayor's Court under the Charter of 1726. If the merchant is dissatisfied, he appeals to the Governor in Council; if the value exceeds one thousand pagodas, he may appeal from there to the King in Council in England. The Company's servants in Madras cannot stop that appeal, because neither the court nor the appeal is theirs to control. That is what a Crown court adds.

What beginners get wrong

"The Mayor's Court was established in 1726." The first one was established at Madras in 1687. The 1726 charter established three Mayors' Courts, at Madras, Bombay and Calcutta, on a uniform pattern, and, decisively, made them Crown courts. Say both, in that order, and the answer is complete.

"The 1687 court was a royal court because it was called a Mayor's Court." No. It was granted under the Company's seal, deliberately, so that the corporation would remain subject to the Company's President and Council.

"A Court of Record just means a court that keeps records." It means more: a court of record's proceedings are enrolled as a permanent memorial and it has an inherent power to punish contempt. Every Mayor's Court in this book, and every High Court in Module II, is a court of record, and article 129 of the Constitution says the same thing of the Supreme Court today.

Limits and criticism

The 1687 court had two defects and they are worth stating plainly because they are the defects the 1726 charter was meant to cure and did not.

The judges were merchants. A Mayor and twelve Aldermen drawn from the trading community of Madras, sitting with one professional Recorder, were not trained in law, and after Sir John Biggs died the Recordership lapsed and the court sat without any lawyer at all.

And its authority was doubtful outside the settlement. A charter under the Company's seal could confer no more than the Company itself possessed, and what the Company possessed came from the Charter of 1661: a power over persons living under it. Nothing in that reaches a Mughal subject at Madras who was not living under the Company, and the point was never squarely settled.

Quick revision

• Charter dated 30 December 1687 (3 James II), published at Madras 29 September 1688.
• Created a Municipal Corporation at Madras: a Mayor, twelve Aldermen, sixty or more Burgesses.
• The Mayor and Aldermen were a Court of Record: the first Mayor's Court in India.
• Sir John Biggs, formerly Recorder of Portsmouth, was its Recorder.
• Issued under the Company's seal, not the Great Seal, deliberately, after a Cabinet Council on 11 December 1687, so that the corporation would remain subject to the Company's President and Council.
• The Aldermen were deliberately mixed in community; London's 1692 attempt to widen them further failed for the reasons recorded above.

Test yourself

1. When and where was the first Mayor's Court in India established? At Madras, by a charter dated 30 December 1687, published there on 29 September 1688. It was thirty-nine years before the Charter of 1726, which a student who reads only MU's topic label will misdate.

2. Under what seal was the 1687 charter granted, and why does it matter? Under the Company's seal, not the Great Seal. It matters because a grant under the Company's seal made the corporation and its court subject in some measure to the Company's own President and Council, whereas a grant under the Great Seal creates a Crown court which the Company cannot control. The reason was given openly at a Cabinet Council on 11 December 1687.

3. What is a Recorder, and who was the first at Madras? A lawyer appointed to sit with a mayor and aldermen and supply the legal knowledge they lack. Sir John Biggs, formerly Recorder of Portsmouth and Judge Advocate at Madras under the Admiralty charter of 1686.

4. Give one reason the 1687 court could not be a satisfactory court of justice. Its judges were merchants of the settlement with no legal training, sitting in a court created by, and subject to, the body whose servants were frequently before them. The single professional member, the Recorder, was not replaced after the office lapsed.

What the Mayor's Court could do

Civil suits. The Mayor's Court, or any three of them of whom the Mayor or senior Alderman had to be one, could try, hear and determine all civil suits, actions and pleas between party and party arising within the town or within any factory subordinate to it.

Probate and administration. It could grant probate of wills, that is, the court's certificate that a will is valid and that the executor named in it may act, and letters of administration, the corresponding authority given to somebody to administer the estate of a person who died without a will. That is why so much of the litigation you meet in Module I is about estates: the Mayors' Courts were the probate courts of the Presidency Towns.

Nothing criminal. The Mayor's Court was a civil court. Crime was dealt with separately, and by different people.

The criminal side: Justices of the Peace and Quarter Sessions

The same charter provided that at each place the Governor or President and the five senior members of Council, according to their precedence, should be Justices of the Peace.

A Justice of the Peace is a magistrate: an officer who may commit for trial, take security for keeping the peace, and try small offences. Any three or more of them, the Governor or President or in his absence the senior member of Council being one, might hold Sessions of the Peace, that is, Quarter Sessions, and hold courts of record.

They were also made Commissioners of Oyer and Terminer and General Gaol Delivery. These are two ancient English commissions and the words are worth unpicking because they appear throughout this paper. Oyer and terminer is Norman French for "to hear and determine", and is the commission to try serious crime. General gaol delivery is the commission to try everybody then held in the gaol, so that the gaol is emptied of untried prisoners. Together they amount to full criminal trial jurisdiction.

So the shape of justice in a Presidency Town after 1726 is this: a civil court of merchants sitting as the Mayor's Court, and a criminal court of the Governor and his Council sitting as Justices and as Commissioners of Oyer and Terminer. The executive government of the settlement was the criminal court. Remember that when you reach the Regulating Act, because it is exactly what Parliament decided in 1773 had to stop.

The appeal, in two steps

Step one. Any person aggrieved by a judgment, sentence or decree of the Mayor's Court might appeal to the Governor or President and Council, who were themselves constituted a Court of Record for the purpose of receiving and determining such appeals. No person interested in the suit was to sit as judge on the appeal; where the voices were equal, the Governor or President had two voices.

Step two. The determination of the Governor in Council was final if the debt, damages or matter in dispute did not exceed 1,000 pagodas. If it exceeded 1,000 pagodas, the party aggrieved might, within fourteen days after the appellate decree was entered of record, appeal to the King in Council, "as is usual in cases of appeal from any of Our Colonies in the West Indies", on giving security to pay the sum adjudged with interest at eight per cent and the costs of the appeal.

A pagoda was a gold coin of southern India, so 1,000 pagodas was a substantial sum. The effect was that ordinary litigation ended in India and only large cases crossed the sea.

A worked example

Ramchandra, a Hindu merchant of Calcutta, sues Mr Holwell, an English trader of the same town, for the price of saltpetre delivered in 1730. The claim is for 1,500 pagodas.

1. The suit is filed in the Mayor's Court of Calcutta. Three of its members, the Mayor being one, hear it. Neither party is a member of the court, so nobody has to withdraw.
2. The court gives judgment for Ramchandra.
3. Holwell appeals to the Governor and Council at Fort William, sitting as a Court of Record. If any councillor has an interest in the saltpetre contract, he does not sit.
4. The Council affirms. The sum exceeds 1,000 pagodas, so Holwell may appeal to the King in Council within fourteen days of the decree being entered, giving security for the sum, interest at eight per cent and costs.
5. That appeal is heard in London, before the King in Council, and the decision binds the courts at Calcutta.

Now change one fact. The claim is for 700 pagodas. The Council's decision is final, and no appeal lies to England.

The one silence that caused everything afterwards

Ask the obvious question: what law was the Mayor's Court to apply to a Hindu merchant and an English trader?

The charter does not say. It creates courts, gives them jurisdiction over "all civil suits between party and party", and stops. Because these were the King's courts and the judges were Englishmen, they applied English law, which is what an English court naturally does. And because the charter drew no distinction between an English defendant and an Indian one, English law was applied to Indians in the Presidency Towns in matters of contract, of inheritance and of family, in which they had their own law and had always been governed by it.

That silence is the single most consequential feature of the Charter of 1726, and everything MU asks about the next fifty years follows from it: the complaints of the inhabitants, the amended charter of 1753, Warren Hastings's rule of 1772 that Hindus be governed by Hindu law and Muslims by Muslim law, and the provision in the Settlement Act of 1781 that finally said so for the Supreme Court.

Distinctions worth having straight

What beginners get wrong

"The Charter of 1726 introduced the Courts of Requests." It did not. Courts of Requests for small causes came with the amended Charter of 1753, and the next chapter deals with them.

"The Mayor's Court tried criminal cases." It did not. Crime belonged to the Governor and the five senior councillors sitting as Justices of the Peace and as Commissioners of Oyer and Terminer and General Gaol Delivery.

"1726 gave Indians a court of their own law." The reverse. It gave them a court that applied English law to them, which is what the inhabitants complained of and what 1753 partly answered.

"The appeal went to the Privy Council." In 1726 the appeal lay to the King in Council. The Judicial Committee of the Privy Council, as a statutory body with a fixed constitution, was not created until 1833. The destination is the same institution in a loose sense, but the answer is more accurate if you say King in Council for this period.

Limits and criticism

The judges were still merchants, and now they were merchants applying a law they had not studied to people who had never heard of it.

The Company disliked the arrangement from the beginning, and for a reason it did not conceal: a Crown court with an appeal to England was outside its control. Within a generation it had procured an amended charter that took some of that back.

And the criminal jurisdiction was worse than the civil. The Governor and the five senior members of his Council were the executive government of the settlement, its principal traders, and now its criminal court. There was no separation of any kind, and the point was made forcibly by Parliament in 1773 when it created a court whose judges were sent from England and could not be dismissed by the Company.

Quick revision

• Charter of 24 September 1726 (13 George I), granted by George I under the Great Seal: a Crown charter.
• Corporations and Mayors' Courts at Madras, Bombay and Calcutta: Mayor and nine Aldermen, seven of them natural-born British subjects.
• Mayor's Court: civil suits, probate and letters of administration. Courts of Record.
• Governor or President and five senior councillors: Justices of the Peace, holding Quarter Sessions, and Commissioners of Oyer and Terminer and General Gaol Delivery: the criminal court.
• Appeal: Mayor's Court to Governor in Council; above 1,000 pagodas to the King in Council within fourteen days, on security with interest at eight per cent.
• The charter is silent on what law applies, so English law was applied to Indians. That silence is the origin of most of Module I.

Test yourself

1. Why is the Charter of 1726 more important than the Madras charter of 1687, when 1687 came first? Because it was granted under the Great Seal by the King, so the Mayors' Courts were Crown courts beyond the Company's control; because it made the arrangements uniform at all three Presidency Towns; and because it created an appeal to the King in Council in England.

2. Set out the appellate ladder from the Mayor's Court, with the money limit. Mayor's Court, then the Governor or President in Council sitting as a Court of Record, whose decision was final up to 1,000 pagodas; above 1,000 pagodas an appeal lay to the King in Council within fourteen days of the decree being entered, on security for the sum, interest at eight per cent and costs.

3. Who exercised criminal jurisdiction in a Presidency Town after 1726? The Governor or President and the five senior members of Council, as Justices of the Peace holding Quarter Sessions, and as Commissioners of Oyer and Terminer and General Gaol Delivery. They could try all offences except high treason. The Mayor's Court had no criminal jurisdiction.

4. What law did the Mayors' Courts apply, and what does the charter say about it? They applied English law. The charter says nothing at all about the law to be applied, and that silence is why English law came to be applied to Indians in the Presidency Towns in matters governed by their own personal law.

5. What is the difference between "oyer and terminer" and "general gaol delivery"? Oyer and terminer is the commission to hear and determine serious criminal charges. General gaol delivery is the commission to try all prisoners then in the gaol, so that none is left untried. Together they confer full criminal trial jurisdiction.

The occasion was accidental and the reform was not. Madras had to have its court re-created whatever anybody thought of the 1726 scheme. What turned a re-creation into a reform is the second recital: the defects found by experience, which are the three problems set out above.

And the charter provided for the same thing happening again. It made provision for the event of the Company losing for a time the possession of any of its principal settlements, and the provision was needed almost at once: Calcutta was taken by Siraj-ud-Daula on 20 June 1756 and was not recovered until 2 January 1757, by the forces of the Crown and the Company under Colonel Clive and Admiral Watson. Module I's next chapters begin in the Bengal that came out of that.

What the Charter of 1753 did

It reconstituted the courts under the Company's hand. The Mayors' Courts at Madras, Bombay and Calcutta were re-established, again with a Mayor and nine Aldermen, seven of them natural-born British subjects and the other two permitted to be foreign Protestants, subjects of any country in amity with England. The decisive change is in the appointment. Where the 1726 charter had left the corporation to fill its own vacancies, in 1753 an Alderman who died or was removed was replaced by a person nominated by the Governor and Council, and an Alderman might be removed by the Governor or President and Council, subject to an appeal to the King in Council.

It took Indian disputes out of the Mayor's Court. This is the change to remember. The court's civil jurisdiction was granted in the same wide words as before, "all Civil Suits, Actions and Pleas between Party and Party", but with an express exception: "except such Suits or Actions shall be between the Indian Natives of Madraspatnam only, in which Case We will that the same be determined among themselves, unless both Parties shall by Consent submit the same to the Determination of the said Mayor's Court." The same exception was written into the Bombay and Calcutta clauses.

Read it carefully, because two things are being done at once. A suit between two Indians is outside the court unless both of them agree to bring it there. And where they do not agree, the charter does not send them anywhere in particular: it says the matter is to be "determined among themselves", which means by their own caste, community or arbitration arrangements, and it says nothing about what happens if those fail.

It created Courts of Requests. At each of the three settlements a Court of Requests was established, so called because it was the old English name for a small-debts court, "for the providing a more easy and speedy Method for recovering of small Debts". The Governor or President and Council were to appoint not fewer than eight and not more than twenty-four of the principal inhabitants to be Commissioners. Any three or more of them sat every Thursday from ten to twelve in the forenoon, or longer if business required, and heard and determined in a summary way, meaning without the formal pleadings and process of a full court, all suits where the debt or matter in dispute did not exceed five pagodas. The commissioners held office for two years, in rotation. The Mayor's Court was forbidden to proceed on any cause of suit not exceeding five pagodas.

It kept the appellate ladder, with a repair. The appeal from the Mayor's Court still lay to the Governor or President in Council, whose decision was final up to 1,000 pagodas, and above that to the King in Council. Two improvements were made. Where the voices on the appeal were equal, the Governor or President, or in his absence the senior disinterested councillor, had two voices; and where there were not enough disinterested members of Council to hear the appeal at all, the party aggrieved might appeal directly to the King in Council within twenty-one days of the Mayor's Court decree, even if the sum was below 1,000 pagodas. Interest on the security was no longer fixed at eight per cent but at the current rate at the time of the decree.

It made the courts enforce each other's orders. If the Mayor's Court refused or neglected to execute a judgment given on appeal within fourteen days of being asked, the Governor or President and Council were required to execute it themselves.

A worked example

Two Hindu merchants of Calcutta, Gopal and Krishna, quarrel in 1755 over an account. Gopal wants to sue.

Before 1753, he would file in the Mayor's Court, which would try the suit and apply English law to it, whether or not either party had any notion what English law required.

After 1753, the Mayor's Court cannot take the suit at all, because it is between Indian natives only. It becomes triable there only if Krishna also consents. If he does not, Gopal's remedy is whatever his community provides: the arbitration of elders, the caste panchayat, or nothing.

Change the facts. Gopal sues an English trader for three pagodas. The Mayor's Court is forbidden to proceed, because the sum does not exceed five pagodas. He must go to the Court of Requests, where three commissioners will hear him on a Thursday morning and decide the matter summarily.

Change them again. Gopal sues an English trader for 1,200 pagodas and loses in the Mayor's Court. He appeals to the Governor in Council; but four of the councillors have dealings with the defendant and cannot sit, and there are not enough disinterested members left to hear the appeal. Under the 1753 charter Gopal may go straight to the King in Council, within twenty-one days of the Mayor's Court decree.

Distinctions worth having straight

What beginners get wrong

"The 1753 charter abolished the Mayors' Courts." It re-established them. What it altered was who appointed their members, what they could hear, and what was taken away to a smaller court.

"1753 gave Indians their own courts." It did not. It took their disputes out of the Mayor's Court and left them to be "determined among themselves". That is an exclusion, not a provision, and the absence of any forum is one of the reasons the Supreme Court in 1774 found itself dealing with Indians at all.

"The Court of Requests was an appellate court." The opposite: it was the lowest court, for debts of five pagodas or less, sitting one morning a week and deciding summarily.

"After 1753 the Mayors' Courts were Company courts again." Not in form. The charter was still a Crown charter under the Great Seal, and the appeal to the King in Council survived. What changed was the practical control, through the appointment and removal of Aldermen by the Governor and Council. That distinction between the form of a court and the practical control of it is worth carrying into Module III, where the same question is asked about the independence of the judiciary today.

Limits and criticism

The 1753 charter is a settlement in the Company's favour and it should be described as one.

It solved the Company's problem, which was control, more thoroughly than it solved the inhabitants' problem, which was justice. Excluding suits between Indians removed the grievance of English law being applied to them, at the price of leaving them without any court at all in the settlement where they lived. Taking small claims to a court of commissioners sitting for two hours a week was an improvement in speed and a reduction in the quality of the tribunal.

And the criminal side was untouched. The Governor and the five senior members of Council remained the criminal court, which was the arrangement Parliament would find intolerable twenty years later.

Quick revision

• September 1746: the French took Madras, which put an end to the Mayor's Court there; restored in 1749 under the Treaty of Aix-la-Chapelle. The new charter was granted for all three Presidencies because defects had been found by experience in the Charter of 1726.
• Charter of 8 January 1753 (26 George II), amending the Charter of 1726.
• Mayors' Courts re-established; Mayor and nine Aldermen, seven natural-born British subjects, the other two may be foreign Protestants.
• Aldermen now nominated by the Governor and Council, and removable by them subject to appeal to the King in Council.
• Suits between Indian natives only are excluded, to be determined among themselves, unless both parties consent.
• Courts of Requests at each settlement: 8 to 24 Commissioners, any three sitting every Thursday, ten to twelve, deciding summarily, for suits not exceeding five pagodas. The Mayor's Court may not take such a suit.
• Appeal ladder kept: Governor in Council, final to 1,000 pagodas, then the King in Council; plus a direct appeal within 21 days where the Council has no disinterested quorum.

Test yourself

1. Name the three changes the Charter of 1753 made, in one sentence each. It put the appointment and removal of Mayors and Aldermen in the hands of the Governor and Council; it excluded suits between Indian natives only from the Mayor's Court unless both parties consented; and it created Courts of Requests to decide suits up to five pagodas summarily.

2. What happened to a dispute between two Indians in Calcutta after 1753 if one of them refused to consent? The Mayor's Court could not hear it. The charter said such matters were to be determined among themselves, and provided no forum, so the parties were left to their community's own arbitration or to no remedy at all.

3. What was a Court of Requests, who sat on it, and what could it decide? A small-causes court at each Presidency Town, staffed by between eight and twenty-four commissioners chosen by the Governor and Council from the principal inhabitants, any three of whom sat every Thursday from ten to twelve and decided suits summarily where the debt or matter did not exceed five pagodas.

4. In what circumstances could a litigant go to the King in Council in a case worth less than 1,000 pagodas? Where there were not enough disinterested members of the Governor's Council to hear the appeal, so that no judgment could be given. The party aggrieved might then appeal directly, within twenty-one days of the Mayor's Court decree, whatever the amount.

5. Was the Mayor's Court after 1753 a Crown court or a Company court? In form a Crown court: the charter was granted under the Great Seal and the appeal to the King in Council remained. In practice the Company controlled it, because the Governor and Council appointed and could remove its Aldermen.

The dual government, and why it failed

What Clive constructed on that grant is called the dual government, and it is best understood as a deliberate division of the two halves of provincial government between two different people.

• The Diwani, the revenue and civil justice, went to the Company.
• The Nizamat, criminal justice and order, remained nominally with the Nawab, exercised through a deputy whom the Company in fact appointed.

The attraction for the Company was obvious. It got the revenue without having to answer for the government, and without alarming Parliament, the Emperor or its European rivals by openly assuming sovereignty.

The defect is equally obvious once stated. Power was separated from responsibility. The Company had the money and no duty to govern; the Nawab had the duty and no money and no power. Nobody was answerable for the ordinary administration of the country, and each could blame the other.

For the first few years the Company collected through Indian officers and did not interfere directly, which meant in practice that the collection was made by whoever could extract most. The famine of 1770, in which a large part of the population of Bengal died, was made worse by the revenue being collected as though nothing had happened.

What "civil justice" looked like in that period

There was no vacuum. Bengal had courts before the English arrived and they went on sitting: the kazi administering Muslim law, the pandit advising on Hindu law, the zamindar's own court in his zamindari, the village panchayat, and the Nawab's officers above them.

What there was not was any effective supervision or appeal, any protection for a litigant against the officer who was also collecting his revenue, or any way for an English inhabitant of the interior to be sued at all. And there was one particular gap the Company could not ignore: no judicial coercion over Europeans outside the Presidency Towns. A servant of the Company in the districts was, in practice, beyond the reach of any court in Bengal.

A worked example

Take a cultivator in Burdwan in 1770 who says the amil has taken more than the revenue due.

He can complain to the zamindar, who is the person on whose behalf the collection was made. He can complain to the amil's superior, who is a servant of the Company and whose own performance is measured by the amount collected. He can go to the kazi, who has no power over a revenue officer. He can go to the Nawab's officers, who have no money and no authority over the Company's servants.

None of those is a court in the sense of a tribunal separate from the person complained of. That is the state of affairs Warren Hastings inherited in 1772, and it is the reason his first act was to build courts rather than to reform the ones that existed.

Distinctions worth having straight

What beginners get wrong

"The Company became the ruler of Bengal in 1765." It became the Diwan of Bengal, Bihar and Orissa, which is a Mughal office. It carefully did not claim sovereignty, and the pretence lasted until 1772 in form and much longer in theory.

"The dual government means two governments." It means one government split into its two halves, revenue and criminal, held by two different persons. The problem is not duplication; it is that neither half was accountable.

"There were no courts in Bengal before the British." There were, and the Company's own plans of 1772 kept much of what it found: Muslim criminal law, the kazi and the mufti, Hindu and Muslim personal law, and the local jurisdiction of zamindars. What was new was the structure above them.

Limits and criticism

It is worth being careful here, because the paper invites a lazy answer in either direction.

The dual government was indefensible and the Company's own servants said so at the time. But the picture of total anarchy owes a good deal to the men who ended it and had an interest in describing what they replaced as chaos. What can be said with confidence is narrower and more useful: revenue was being collected by people with no obligation to administer justice, and justice was being administered, where it was administered at all, by people with no power over the revenue collectors. A system in which the same officer is both the tax gatherer and the judge is bad; a system in which nobody at all is the judge is worse. India would spend the next sixty years oscillating between those two, which is exactly what Cornwallis's three plans are about.

Quick revision

• 1765: Shah Alam II grants the Company the Diwani of Bengal, Bihar and Orissa: revenue plus civil justice.
• The Nizamat, criminal justice and order, stayed nominally with the Nawab: this is the dual government.
• Its defect: power without responsibility, and responsibility without power.
• No effective appeal, no protection against the collector, and no judicial coercion over Europeans in the interior.
• The famine of 1770 exposed the whole arrangement.
• The existing courts, the kazi, the pandit, the zamindar's court and the panchayat, continued and were partly absorbed into the plan of 1772.

Test yourself

1. What exactly did the Company acquire in 1765, and what did it not acquire? It acquired the Diwani of Bengal, Bihar and Orissa: the right to collect the revenue and to administer civil justice. It did not acquire the Nizamat, which is criminal justice and the maintenance of order, and which remained nominally with the Nawab.

2. State the central defect of the dual government in one sentence. It separated power from responsibility: the Company had the revenue and no duty to govern, while the Nawab had the duty and neither money nor power.

3. Why does the difference between Diwani and Nizamat matter for the rest of this paper? Because the court structure built in 1772 is built on it: the Diwani produced the Mofussil Diwani Adalat and the Sadar Diwani Adalat on the civil side, and the Nizamat produced the Mofussil Faujdari Adalat and the Sadar Nizamat Adalat on the criminal side.

4. Who is a zamindar, and why did his exact status become a legal question? A holder of land with a hereditary right to collect its revenue and to pay a fixed sum to the government. His status mattered because the Supreme Court's jurisdiction after 1774 extended to persons employed by the Company, and whether a zamindar was such a person was the question at the heart of the Cossijurah dispute.

The chief courts at Calcutta. Above them sat the Sadar Diwani Adalat, the chief civil court, consisting of the President and two members of Council, hearing appeals from the district civil courts in suits above a fixed value; and the Sadar Nizamat Adalat, the chief criminal court, nominally under an Indian judge, the daroga-i-adalat, with the kazi and muftis, but in fact supervised by the Governor and Council.

Notice what that means. The executive government of Bengal was the highest court of Bengal, on both sides. The Governor and his Council collected the revenue, governed the provinces, and sat as the final civil and criminal court. It is the arrangement of the Presidency Towns after 1726 repeated across three provinces, and Parliament would find it as unacceptable here as there.

The rule about personal law

The most durable single provision of the plan is the rule that in suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran were to be applied to Muslims and those of the Shastra to Hindus.

Three things follow from it and are worth stating separately.

1. It is the origin of the personal laws as a category of Indian law. The idea that some subjects are governed by the law of the party's religion, and the list of what those subjects are, begins here as an administrative instruction.
2. It answered, for the mofussil, exactly the complaint the Presidency Towns had made about the Charter of 1726: that English law was being applied to people who had never heard of it.
3. It made the pandit and the kazi necessary. An English Collector could not find the law of the Shastra for himself, so the court had to contain somebody who could, and the law officers sat with the judge for that purpose. That arrangement lasted until the courts had enough translated texts and reported decisions to do without them.

A worked example

Ramkanta, a Hindu of the Burdwan district, dies in 1773. His widow and his nephew both claim the estate.

1. The suit goes to the Mofussil Diwani Adalat of Burdwan, because it is a civil suit and it arises in that district.
2. The Collector presides. The suit concerns inheritance, so the applicable law is the law of the Shastra, and the pandit attached to the court expounds it. The Collector decides according to that exposition.
3. If the value exceeds the appealable limit, the losing party appeals to the Sadar Diwani Adalat at Calcutta, where the President and two members of Council sit.
4. If the same Ramkanta had been murdered, the trial would have been in the Mofussil Faujdari Adalat, under Muslim criminal law, and a sentence of death would have gone to the Sadar Nizamat Adalat for confirmation.

Now notice the difficulty that is already visible. The Collector who decides the inheritance suit is also the officer collecting the revenue from the same estate, and the Company has an interest in who holds it. Nobody in 1772 pretended otherwise, and Cornwallis would spend the 1790s trying to separate the two functions.

Distinctions worth having straight

What beginners get wrong

"The plan of 1772 was made by Parliament." It was made by the President and Council of Bengal, under the Company's own legislative power. Parliament's first intervention is the Regulating Act of the following year, and it changed much of what Hastings had built.

"The Sadar Diwani Adalat was a court of judges." It was the Governor and two members of his Council. The first time a professional judge sat in it as such is much later.

"Hastings introduced English law into the districts." He did the reverse in the matters the plan lists: Muslim law for Muslims and Hindu law for Hindus in inheritance, marriage, caste and religious usage. Outside those matters the courts decided by usage, custom and what they thought equitable, which is the origin of the phrase "justice, equity and good conscience" in later Indian statutes.

"The plan lasted." It did not survive three years intact. The Regulating Act arrived in 1773, the new Councillors arrived in 1774 and outvoted Hastings, and the plan was substantially altered in 1774 and again in 1780. That is the next chapter.

Limits and criticism

The plan has one structural defect and one practical one, and the paper usually asks about both.

Structurally, it put the Collector at the head of the civil court of his own district and the Governor in Council at the head of both chief courts. Revenue and justice were in the same hands at every level, from the district to Calcutta. A litigant who complained of the Company's revenue administration was complaining to the Company's revenue administration.

Practically, it was built by a government whose own composition Parliament was about to change. Hastings's plan assumed a Governor with authority over his Council; the Regulating Act gave him a Council that could and did outvote him. A plan of administration is only as durable as the administration that made it.

What survives is larger than what failed: the four-court structure, the vocabulary, and above all the personal-law rule, which is with us still.

Quick revision

• Made in 1772 by the President and Council of Bengal, not by Parliament, after the Directors resolved that the Company should "stand forth as Diwan".
• District: Mofussil Diwani Adalat (civil, under the Collector, with kazi, mufti and pandit) and Mofussil Faujdari Adalat (criminal, Muslim criminal law).
• Calcutta: Sadar Diwani Adalat (President and two members of Council) and Sadar Nizamat Adalat (criminal, in fact under the Governor and Council).
• Death and forfeiture sentences required confirmation by the Sadar Nizamat Adalat.
• The personal-law rule: in inheritance, marriage, caste and other religious usages and institutions, the Koran for Muslims and the Shastra for Hindus.
• Defect: revenue and justice in the same hands at every level.

Test yourself

1. Name the four courts of the 1772 plan and say what each did. Mofussil Diwani Adalat, the district civil court under the Collector; Mofussil Faujdari Adalat, the district criminal court under Indian law officers; Sadar Diwani Adalat, the chief civil court at Calcutta consisting of the President and two members of Council; and Sadar Nizamat Adalat, the chief criminal court, nominally under an Indian judge but supervised by the Governor and Council.

2. State the personal-law rule of 1772 and say why it matters. That in suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran were to be applied to Muslims and those of the Shastra to Hindus. It matters because it is the origin of the personal laws as a category of Indian law and because it answered, for the districts, the complaint that English law was being applied to people governed by their own.

3. Why did the plan need pandits and kazis on the bench? Because the presiding officer was an English Collector who could not ascertain Hindu or Muslim law for himself, and the plan required that law to be applied in the listed matters. The law officers expounded it and the judge decided on their exposition.

4. Give the one criticism of the 1772 plan that the later history proves. That it united revenue collection and civil justice in the same officer, and executive government and the highest courts in the same body. Cornwallis separated them in 1793 precisely because of it, and the Regulating Act of 1773 was passed because Parliament would not accept a Governor in Council as a criminal court.

That is the arrangement that produced the Patna Case and Sarup Chand's case, both of which are proceedings against a Provincial Council for what it did while acting as a court. When you reach those chapters, remember that the Council in each was doing exactly what the 1775 arrangement told it to do.

The reform of 1780: separating civil justice from revenue

By 1780 two pressures had made a change unavoidable. The Supreme Court, established at Calcutta in 1774, was suing the Provincial Councils and their officers for what they did in their judicial character, and the collection of revenue was suffering. And the Councils themselves, being revenue bodies with judicial work added, were doing the judicial work badly.

In 1780 the Governor-General and Council, "considering that important changes had taken place in the constitution and civil government of those provinces since 1772", passed Regulations for the more effectual and regular administration of justice in the provincial civil courts. The central change was the separation of civil jurisdiction from revenue jurisdiction: the Provincial Councils kept the revenue, and civil justice was given to a separate set of courts, with the Sadar Diwani Adalat above them.

Later in the same year all existing regulations respecting the Sadar and Provincial Courts were consolidated and amended, and early in 1781 a revised Code was issued.

Two features of these Regulations are worth noticing for later chapters. They were expressed to be binding only until a new arrangement should be made by authority of Parliament, which is an admission that the Company knew the question was above its head. And they were not registered in the Supreme Court, and probably were never registered, which under the Regulating Act meant that the Supreme Court was not bound to recognise them at all. Both facts point straight at the Settlement Act of 1781.

Why MU calls it "recognition in 1780"

The syllabus label is "Reforms under the plan of 1774 and Recognition in 1780", and students often ask what is being recognised.

Two things, and an answer can safely give both.

The Company recognised that justice is not a branch of revenue collection. From 1772 to 1780 the man who collected was the man who judged. The Regulations of 1780 accepted that the two functions had to be in different hands, and gave the civil courts a separate existence with the Sadar Diwani Adalat at their head.

And the Sadar Diwani Adalat was recognised as a real court, given a settled constitution and a body of rules, instead of being merely the Governor and two Councillors hearing appeals when they had time. It is from this point that it can be described as an institution, and by the Settlement Act of the following year Parliament itself would recognise it, which is the strongest sense of the word.

A worked example

Follow one dispute through all three arrangements.

Bhagwan, a tenant in the Dinajpur district, says the revenue officer has distrained his crop wrongly.

Under the plan of 1772. He sues in the Mofussil Diwani Adalat. The judge is the Collector, who is the superior of the officer complained of. Appeal to the Sadar Diwani Adalat, which is the Governor and two Councillors.

Under the changes of 1775. He sues before the amil, who is himself a revenue officer. Appeal to the Provincial Council of Dinajpur, which supervises the revenue of the division. Appeal from there, with restrictions, to the Governor-General and Council as the Sadar Adalat.

After 1780. He sues in a civil court which is not part of the revenue establishment, and appeals to the Sadar Diwani Adalat. The Provincial Council keeps the revenue and loses the judicial work.

The complaint is the same in all three. Only in the third is he complaining to somebody other than the department complained of.

Distinctions worth having straight

What beginners get wrong

"The plan of 1774 was a new judicial plan by Hastings." It was not Hastings's plan and there is no single document called the plan of 1774. What MU's label refers to is the series of changes made by the new Council after the Regulating Act took effect, of which the principal ones are the arrangements of 1775 described above.

"1780 abolished the Provincial Councils." It did not. They kept the revenue. What they lost was the judicial work.

"The Regulations of 1780 bound the Supreme Court." They did not. They were not registered in the Supreme Court, and under the Regulating Act a regulation that was not registered there was not something the Court had to recognise. That is one of the reasons the quarrel could not be settled in India.

Limits and criticism

The period from 1774 to 1780 is the least tidy in this paper and it is worth saying why rather than apologising for it.

Bengal had, at the same time, a Company government whose members were at war with each other, a brand new Crown court that did not accept the Company's courts as courts, and a plan of administration being rewritten every second year. Nobody was in a position to make a settlement, because no authority in India was superior to both the Council and the Court.

The Regulations of 1780 themselves say so, in the clause that limits their operation until Parliament should make a new arrangement. The Company had reached the end of what it could do by itself, and everything after this chapter, the Settlement Act of 1781 and the Cornwallis plans, is done under an authority the Company did not have.

Quick revision

• The plan of 1772 was altered because the Regulating Act gave Hastings a Council that outvoted him; the new members arrived in October 1774.
• 1775: revenue superintendence to six Provincial Councils (Calcutta, Burdwan, Dacca, Murshidabad, Dinajpur, Patna); Collectors recalled; civil justice in the districts to Indian amils; appeal to the Provincial Council, then to the Governor-General and Council as the Sadar Adalat.
• 1780: civil jurisdiction separated from revenue jurisdiction; the Sadar Diwani Adalat given a settled place. Regulations consolidated later that year; a revised Code in 1781.
• The 1780 Regulations were expressed to last only until Parliament made a new arrangement, and were not registered in the Supreme Court.

Test yourself

1. Why was the plan of 1772 altered so soon after it was made? Because the Regulating Act gave the Governor-General a Council of four, and under section 8 the majority decided. The three Councillors who arrived in October 1774 voted together and outvoted Hastings, and the changes of 1775 are theirs.

2. What did the changes of 1775 do to the district civil courts? They recalled the European Collectors, transferred civil justice to Indian amils, and made the six Provincial Councils the appellate courts, with a further appeal to the Governor-General and Council as the Sadar Adalat. Revenue and justice were more closely united than before, not less.

3. What is meant by the "recognition in 1780"? The separation of civil jurisdiction from revenue jurisdiction, and the recognition of the Sadar Diwani Adalat as a settled court with rules of its own rather than an occasional sitting of the Governor and two Councillors.

4. Why did the 1780 Regulations not settle the quarrel with the Supreme Court? Because they were made by the Company, were expressed to last only until Parliament acted, and were not registered in the Supreme Court, so the Court was not bound to recognise them. Only an Act of Parliament could settle it, and that is the Settlement Act of 1781.

A government that could not govern itself. In Bengal the Governor could be, and was, overruled by his Council; Madras and Bombay acted independently of Bengal and sometimes against it, making war and treaties on their own account. Nobody in India was in charge of India, and nobody in England was in charge of the men in India.

What Parliament decided to do about it

The Act works on three levels at once, and an answer that separates them is much easier to follow than one that does not.

In England, it altered the Company's own constitution: the qualification for voting in the Court of Proprietors, that is, the general body of shareholders, was raised, and Directors were to be elected for four years with a quarter retiring annually instead of the whole body being elected each year. The object was to make the Directors less dependent on shifting majorities of shareholders.

In India, it created a Governor-General of Fort William in Bengal with a Council of four, gave that government a power of superintendence over Madras and Bombay, and gave it a power to make rules, ordinances and regulations.

Above both, it created a Supreme Court of Judicature at Fort William, of a Chief Justice and three other judges appointed by the Crown, and required the Company to transmit its correspondence about revenue and civil and military affairs to the Government in England.

Why a court, and why a Crown court

This is the question the paper most often asks in some form, and the answer has two halves.

The first half is that a government of servants could not be controlled by a court of servants. Every court in the Presidency Towns was staffed by the Company's own people; every court in the mofussil was the Collector, the amil or the Provincial Council. If the object was to make the Company's servants answerable, an answerable court had to come from outside the Company.

The second half is that Parliament was thinking about Englishmen in India, not about Indians. The abuses complained of in England were abuses committed by the Company's servants, and the remedy chosen was a court that could try them. That is why the Act's own jurisdiction clause, section 14, speaks of British subjects and of persons in the Company's service.

The consequence of that focus is the whole of the next six chapters. A court designed to control Englishmen was placed in a country of twenty million Indians, with no clear rule about which of them it could judge or by what law, and the collision was immediate.

A worked example

Put yourself in the House of Commons in 1773 with the Committees' reports in front of you. Three complaints have been proved to your satisfaction.

1. A Governor has taken presents from an Indian ruler, and no court in India will try him for it.
2. A Council in Bengal has made war on its own account, and the Company in London learned of it months later.
3. The Company cannot pay its debts, and asks the Treasury for a loan.

The Act answers each. Section 23 forbids presents and private trade to the Governor-General, the Councillors and the judges. Sections 9 and 10 put Madras and Bombay under the superintendence of a Governor-General named in the Act, and sections 36 and 37 require the rules made in Bengal to be sent home. Sections 39 and 40 make an offence committed in India by a Governor-General, a Councillor or a judge triable in the Court of King's Bench in England. And section 13 creates a court in Calcutta that is not the Company's.

What beginners get wrong

"The Regulating Act was passed to reform the administration of justice in India." It was passed to regulate the East India Company. Its long title says so. The Supreme Court is one provision among many, and the Act's preamble does not mention justice at all.

"The Act made the Crown the ruler of India." It did not. The Company kept its territories and its revenues. What Parliament took was a measure of supervision, and even that was indirect. Crown government arrives in 1858.

"The Act created the Supreme Court." Strictly, it did not. Section 13 empowered His Majesty to erect and establish a Supreme Court by charter. The court itself was created by the Charter of 26 March 1774, and the distinction between the Act and the Charter is one that examiners like.

Limits and criticism

The most damaging criticism of the Act is not that it did too little but that it was drafted without anybody asking what it would do when it arrived.

It gave a Governor-General a Council that could outvote him, and then named the Councillors in the Act itself so that he could not be rid of them for five years. It created a court with English process and English judges and did not say what law that court was to apply to Indians. It gave the Council a power to make regulations and made those regulations void until registered in the very court whose jurisdiction was in dispute.

The judges of the Supreme Court themselves said later that the legislature had passed the Act without sufficiently investigating what it was doing, and that if the Act did not say more than was intended, it at least said more than was well understood. That is a fair summary, and the next six chapters are the proof of it.

Quick revision

• Long title: "An Act for establishing certain Regulations for the better Management of the Affairs of the East India Company, as well in India as in Europe."
• Causes: the Company's financial crisis and application for a loan; scandal over presents and private trade; the reports of the Select and Secret Committees; and a government in India that no one controlled.
• In England: the qualification to vote in the Court of Proprietors raised; Directors elected for four years, a quarter retiring annually.
• In India: a Governor-General and Council of four at Fort William, with superintendence over Madras and Bombay, and a power to make rules.
• A Supreme Court of Judicature to be erected by royal charter.
• The preamble mentions neither justice nor the people of Bengal.

Test yourself

1. Give the two reasons the Act's own preamble states. That the powers granted by charter had proved insufficient to prevent abuses in the government and administration of the Company's affairs at home and in India, to the injury of public credit and of the Company's commercial interests; and that the annual election of Directors weakened their authority and produced instability.

2. Why did Parliament think a Crown court was necessary, when courts already existed in Calcutta? Because every existing court was staffed by the Company's own servants, and the object was to make those servants answerable. A court of the Company could not control the Company.

3. Distinguish the Act from the Charter of 1774. Section 13 of the Act empowered the Crown to erect a Supreme Court by charter; it did not itself create one. The court was created by the Charter of 26 March 1774 granted under that power.

4. What was the Act's chief drafting weakness? It said who the Court could judge without saying what law it should apply, gave the Governor-General a Council that could outvote him and then named the Councillors in the statute, and made the Council's regulations depend on registration in the court with which the Council was in dispute.

A casting voice is a second vote given to the presiding member to break a tie. It is the only special power the Act gives the Governor-General, and it is worth understanding exactly what it is worth. With five members present and three against him, a casting voice is worth nothing. It becomes decisive only when the Council is reduced to an even number and split.

That is not a technicality. Hastings was in a minority of one against Clavering, Monson and Francis from October 1774. Monson died in September 1776, leaving Hastings, Barwell, Clavering and Francis, an even number, and the casting voice made Hastings master of the Council for the first time. Clavering died in August 1777. Every event MU asks about in topic 1.2, from the trial of Nandkumar to the Cossijurah crisis, sits somewhere on that arithmetic.

Section 9: superintendence over Madras and Bombay

Section 9 gives the Governor-General and Council, or the major part of them, power of superintending and controlling the government and management of the Presidencies of Madras, Bombay and Bencoolen, so far that it shall not be lawful for any President and Council of those places to make any orders for commencing hostilities, or declaring or making war, against any Indian princes or powers, or for negotiating or concluding any treaty of peace or other treaty with them, without the consent and approbation of the Governor-General and Council first had and obtained, except in cases of such imminent necessity as would render it dangerous to postpone the hostilities.

This is the beginning of a central government for British India, and it is worth noticing how narrow it is. The control is over war and treaties, not over revenue, justice or ordinary administration. Madras and Bombay remained separate governments in everything else, and would remain so, with the central power growing by stages, until the Charter Act of 1833 made the Governor-General of Bengal the Governor-General of India.

Section 9 also required the subordinate Presidencies to correspond constantly and diligently with Bengal, transmitting an exact particular of all advices, intelligence and transactions coming to their knowledge relating to the government, commerce, revenues or interest of the Company.

Section 10: the four men, and the five years

Section 10 names them. Warren Hastings is to be the first Governor-General; Lieutenant-General John Clavering, the Honourable George Monson, Richard Barwell and Philip Francis are to be the four first Councillors. Each is to hold office for five years from his arrival at Fort William and taking upon himself the government, and is not removable in the meantime except by His Majesty, upon a representation made by the Court of Directors. After the five years, the power of nominating and removing the Governor-General and Council is vested in the Directors.

Naming the men in the statute was meant as a guarantee of independence, and in one sense it was: the Company could not simply recall a Councillor who displeased it. What Parliament did not foresee is that it also made the government of Bengal unalterable for five years even when it had ceased to function.

A worked example

It is November 1774. The Council of Fort William must decide whether to accept the accusation Maharaja Nandkumar has made against the Governor-General, that he has taken presents.

• Who decides? Under section 7 the government is vested in the Governor-General and Council; under section 8 the majority of those present decides.
• Count the votes. Hastings and Barwell on one side; Clavering, Monson and Francis on the other. Three to two.
• Does the casting voice help Hastings? No. It operates only on an equal division, and the division is three to two.
• Can Hastings dissolve the Council or remove a member? No. Section 10 fixes them for five years, removable only by His Majesty on a representation of the Directors.
• Result. The Council receives the accusation against its own President, over his objection, and proceeds to examine it. That is exactly what happened, and it is the beginning of the sequence that ends on the gallows in August 1775.

Now change one fact. Suppose Monson had died a year earlier. The Council is then Hastings, Barwell, Clavering, Francis: two against two, the casting voice operates, and the accusation is not received. The whole of Module I's most famous chapter turns on the arithmetic of section 8.

Distinctions worth having straight

What beginners get wrong

"The Regulating Act made the Governor-General the ruler of India." It made him the head of a five-member board for the Presidency of Fort William, with a limited superintendence over Madras and Bombay in war and treaties. The office of Governor-General of India dates from the Charter Act of 1833.

"The casting vote gave Hastings control of his Council." It gave him a second vote only when the Council was equally divided. For his first two years he was in a minority of three to two and the casting voice was worthless to him.

"Parliament appointed the Council to check the Governor-General." Parliament appointed them because it distrusted the Company's own patronage; the effect of naming them in the Act was to make the Council immovable, which is a different thing and turned out to be worse.

Limits and criticism

The government created by sections 7 to 10 had an internal contradiction that no amount of good faith could have cured. It made one man responsible in the eyes of Parliament for the government of three provinces and gave him one vote in five. It then fixed the five men in place for five years, so that a majority which would not work with its President could not be changed.

The Act of 1781 did not repair this. It was repaired only in 1786, when Parliament gave the Governor-General power to override his Council in matters affecting the safety, peace or interest of the empire, and that power is the ancestor of the Governor-General's special responsibilities in every later constitutional statute down to 1935.

Quick revision

• s.7: a Governor-General and four Councillors for Fort William; the whole civil and military government of the Presidency, and the territorial acquisitions and revenues of Bengal, Bihar and Orissa, vested in them.
• s.8: decision by the majority of those present; a casting voice to the Governor-General only on an equal division.
• s.9: superintendence and control over Madras, Bombay and Bencoolen in war and treaties only, plus a duty to correspond.
• s.10: Warren Hastings Governor-General; Clavering, Monson, Barwell, Francis the first Councillors; five years, removable only by His Majesty on the Directors' representation.
• Sections 11 and 12 are omitted from our reprint and nothing is claimed about them.

Test yourself

1. In whom did section 7 vest the government of Bengal, and of what exactly? In the Governor-General and Council of Fort William, of the whole civil and military government of the Presidency and of the ordering, management and government of the territorial acquisitions and revenues in Bengal, Bihar and Orissa while they remained in the Company's possession.

2. Explain the casting voice, and say why it did not help Warren Hastings until 1776. It is a second vote for the presiding member when the Council is equally divided. It did not help Hastings while Clavering, Monson and Francis outvoted him three to two, because there was no equal division. It became decisive after Monson's death in September 1776 left an even number.

3. What control did section 9 give Bengal over Madras and Bombay? Only over war and treaties: those Presidencies could not commence hostilities, declare or make war, or negotiate or conclude a treaty with any Indian prince or power without Bengal's consent, except in cases of imminent necessity. They also had to correspond and transmit intelligence.

4. What was the effect of naming the first Councillors in the Act itself? It secured them for five years against removal by the Company, which was intended to make them independent, and it also made the government of Bengal unchangeable for five years when its members would not work together.

Four of those words need unpacking, and a student should be able to give each in a line. Civil jurisdiction is over suits between subject and subject. Criminal jurisdiction is over offences. Admiralty jurisdiction is over maritime matters, including prize. Ecclesiastical jurisdiction is over matters that in England belonged to the Church courts, chiefly wills and the administration of the estates of the dead. To those the Court's own charter would add equity, so that the Court is commonly described as having five jurisdictions. Court of record, oyer and terminer and gaol delivery are explained at [The Charter of 1726: Mayors' Courts at Madras, Bombay and Calcutta].

Notice what is not in section 13. It does not say what law the Court is to apply. That silence, the same silence as in the Charter of 1726, is the origin of the trial of Nandkumar and of most of what follows.

Section 14: over whom

Section 14 is the jurisdiction clause, and it is the section that produced the quarrel. It provides that the new charter, and the jurisdiction, powers and authorities to be established by it, shall extend to all British subjects who shall reside in the kingdoms or provinces of Bengal, Bihar and Orissa, or any of them, under the protection of the said United Company, and that the Supreme Court shall have full power and authority:

1. to hear and determine all complaints against any of His Majesty's subjects for any crimes, misdemeanours or oppressions committed or to be committed; and
2. to entertain, hear and determine any suits or actions whatsoever against any of His Majesty's subjects in Bengal, Bihar and Orissa; and
3. any suit, action or complaint against any person who shall, at the time when the debt or cause of action or complaint arose, have been employed by, or have been directly or indirectly in the service of, the Company.

The third limb is the trap. "Directly or indirectly in the service of the said United Company" is a phrase without edges. Was a revenue farmer in the Company's service? A zamindar who collected revenue and paid it to the Company? A banker who held the Company's money? A servant of a servant? Every one of the seven proceedings MU names in topic 1.2 turns, somewhere, on that phrase.

And notice a second difficulty. Limb 1 speaks of complaints against His Majesty's subjects for crimes, misdemeanours or oppressions. Were the inhabitants of Calcutta His Majesty's subjects? The Act does not say, the Charter does not say, and the judges of the Supreme Court later complained that the questions of who was a subject, and whether the territorial acquisitions amounted to an acquisition of sovereignty, were left doubtful to be decided by the Court whenever they should arise.

Section 15: the immunity of the Government

Section 15 provides that the Court shall not be competent to hear, try or determine any indictment or information against the Governor-General or any of the Council for the time being, for any offence, not being treason or felony, which he shall be charged with having committed in Bengal, Bihar and Orissa.

An indictment is a formal written accusation of crime presented to a court; an information is a similar accusation preferred without a grand jury. So the section is about criminal proceedings only, and it leaves two things untouched.

It does not protect the Governor-General or a Councillor from a charge of treason or felony. And it does not protect them from civil suits at all. That gap is exactly what the plaintiff in the Cossijurah dispute used when he sued Warren Hastings and the members of Council personally, and it is why the Settlement Act of 1781 had to go further than section 15.

A worked example

A merchant in Murshidabad in 1777 wants to sue for a debt. Can he do it in the Supreme Court at Calcutta?

Case one. The defendant is an English free merchant living at Murshidabad. Yes: he is a British subject residing in Bengal under the Company's protection, and section 14 covers him.

Case two. The defendant is an Indian banker who has never had anything to do with the Company. Section 14 gives no jurisdiction unless he is one of His Majesty's subjects, which was doubtful outside Calcutta, or was employed by the Company. The right answer is that the Court had no jurisdiction, and in practice a plea to the jurisdiction succeeded.

Case three. The defendant is an Indian who farms the revenue of a district for the Company. Now limb 3 of section 14 is arguable: was he "directly or indirectly in the service of" the Company at the time the debt arose? The plaintiff files an affidavit saying he was; the defendant says he was a contractor and not a servant. That single question is the Cossijurah dispute.

Case four. The plaintiff wants to prosecute a member of the Council for oppression, not amounting to felony, committed at Patna. Section 15 shuts the door: the Court is not competent to try such an indictment or information.

Distinctions worth having straight

What beginners get wrong

"The Regulating Act established the Supreme Court." Section 13 empowered the Crown to establish it by charter. The Court was established by the Charter of 26 March 1774.

"The Supreme Court had jurisdiction over all Indians." It did not, and it never claimed to. Its jurisdiction over Indians depended on their being in the Company's service, or on their submitting to it, and where a zamindar pleaded to the jurisdiction the plea was ordinarily sustained.

"Section 15 protected the Governor-General from everything." It protected him from criminal indictments and informations for offences other than treason or felony. It did not protect him from a civil action, which is what he was in fact sued by in 1780.

"The judges were Company servants." They were barristers of at least five years' standing, appointed by the Crown, and paid, but not appointable or removable, by the Company. That independence is the whole point of the Court and the whole cause of the quarrel.

Limits and criticism

The criticism the judges themselves made is the one to remember, because it is both fair and precise: the Act made subjection to the English Crown the test of liability to the jurisdiction of the Court, and then said nothing about who was a subject.

There was no declaration, in the statute or in the charter, about which of the inhabitants of Bengal were subjects, nor whether the Company's territorial acquisitions amounted to an acquisition of sovereignty or only to powers exercised within the territories of the Mughal, nor whether Calcutta itself was so far within the King's allegiance that persons born there were natural-born subjects. Questions of the first importance were left doubtful, to be decided by the Court whenever they arose, and the Court had to decide them while being accused of usurpation for doing so.

Add to that the silence about the applicable law and the elastic words of the third limb of section 14, and the Act had built a court that could not avoid a collision with the government beside which it sat.

Quick revision

• s.13: His Majesty may erect a Supreme Court of Judicature at Fort William by charter under the Great Seal; a Chief Justice and three judges, barristers of England or Ireland of five years' standing; civil, criminal, admiralty and ecclesiastical jurisdiction; power to make rules of practice; a court of record; a court of oyer and terminer and gaol delivery for Calcutta and its subordinate factories.
• s.14: jurisdiction over all British subjects resident in Bengal, Bihar and Orissa under the Company's protection; over His Majesty's subjects for crimes, misdemeanours or oppressions and in suits; and over any person employed by, or directly or indirectly in the service of, the Company.
• s.15: no indictment or information against the Governor-General or a Councillor for an offence not being treason or felony committed in those provinces.
• The Act is silent on the law to be applied and on who is a subject.

Test yourself

1. What did section 13 actually enact? That it should be lawful for His Majesty by charter under the Great Seal to erect and establish a Supreme Court of Judicature at Fort William, of a Chief Justice and three judges who must be barristers of at least five years' standing, with all civil, criminal, admiralty and ecclesiastical jurisdiction, power to make rules of practice, the status of a court of record, and the commissions of oyer and terminer and gaol delivery for Calcutta.

2. Set out the three classes of person section 14 brought within the Court's jurisdiction. British subjects residing in Bengal, Bihar and Orissa under the Company's protection; His Majesty's subjects, against whom complaints for crimes, misdemeanours or oppressions and suits and actions might be entertained; and any person who at the time the cause of action arose was employed by, or was directly or indirectly in the service of, the Company.

3. What did section 15 protect, and what did it leave exposed? It protected the Governor-General and Councillors from indictments and informations for offences other than treason or felony committed in the three provinces. It left them exposed to charges of treason or felony, and to civil actions, and the civil action is what was used against them in the Cossijurah dispute.

4. Name the two silences in the Act that caused the quarrel with the Council. It did not say what law the Court was to apply, and it did not say who was a British subject or whether the Company's acquisitions amounted to sovereignty. Both were left to be decided by the Court in the course of litigation.

5. Was a zamindar within the Court's jurisdiction? Not as a zamindar. He came within it only if he was in fact employed by or in the service of the Company, or if he submitted to the jurisdiction. Where a zamindar pleaded to the jurisdiction the plea was ordinarily sustained.

Section 37: transmission and disallowance

Section 37 required the Governor-General and Council, from time to time, to transmit copies of all such rules, ordinances and regulations to one of His Majesty's principal Secretaries of State. His Majesty might, from time to time as he thought necessary, signify to the Company under his sign manual his disapprobation and disallowance of any of them; and from the time such disallowance was duly registered and published in the Supreme Court at Fort William, the rules disallowed became null and void. If the Crown did not disallow within two years of the making of the rules, they stood.

A Secretary of State is a minister of the Crown; the sign manual is the sovereign's own signature, the formal instrument by which such an act is authenticated; disallowance is the annulment of a law by a superior authority, as distinct from a veto, which prevents it coming into force at all.

Learn this pair, section 36 and section 37, together, because they are the earliest form of a mechanism that runs through the whole of Module IV. Indian legislation is subordinate: it is made under a power, limited by repugnancy, and subject to disallowance from England. The Charter Act of 1833, the Indian Councils Act 1861 and the Government of India Acts all repeat the pattern with different names, and it does not finally disappear until 1947.

Section 23: presents and private trade

Section 23 provides that no Governor-General, no member of the Council, and no Chief Justice or judge of the Supreme Court shall, directly or indirectly, by themselves or by any other person for their use or on their behalf, accept, receive or take, from any person, in any manner or on any account whatsoever, any present, gift, donation, gratuity or reward, pecuniary or otherwise, or any promise or engagement for one; and that none of them shall carry on, be concerned in, or have any dealing or transaction by way of traffic or commerce of any kind whatsoever, for his own benefit or for anybody else's, the trade and commerce of the Company alone excepted, any usage or custom to the contrary notwithstanding.

The two prohibitions answer the two scandals that had brought the Company to Parliament's attention: the fortunes made from presents given by Indian rulers to the Company's servants, and the private trade carried on by men who were also the government and could give themselves advantages no competitor could match.

Section 23 is not an antiquarian detail. It is the section under which Maharaja Nandkumar accused Warren Hastings in March 1775 of having taken presents, and that accusation is where the most famous proceeding in this paper begins.

Section 17: the persons of the rulers and the judges

Section 17 provides that nothing in the Act shall extend to subject the person of the Governor-General, of any Councillor, or of the Chief Justice or judges, to be arrested or imprisoned upon any action, suit or proceeding in the Supreme Court.

It is a personal immunity from arrest and imprisonment, not an immunity from being sued. A Councillor could be sued, and judgment could go against him; what could not be done was to take his body. Put section 15 and section 17 side by side and the protection given to the Government becomes clear and also clearly incomplete: no criminal indictment except for treason or felony, and no arrest, but civil liability intact. That is precisely the gap the Cossijurah plaintiff used.

Sections 39 and 40: trial in England

Section 39 provides for an offence committed in India by a Governor-General, President, Governor or member of Council of any of the Company's settlements, or by the Chief Justice or any judge of the Supreme Court.

Section 40 explains why it was needed. It recites that the provisions made by former laws for hearing and determining in England offences committed in India had been found ineffectual, by reason of the difficulty of proving in this Kingdom matters done there, and enacts that in all cases of indictments or informations laid or exhibited in the Court of King's Bench for misdemeanours or offences committed in India, special provision might be made for the trial.

The Court of King's Bench was the principal common law court in England. The point of these two sections is accountability of a particular kind: the highest officers in India were to be answerable, but answerable at Westminster, not in Calcutta. Section 15 had taken them out of the Supreme Court's criminal jurisdiction, and sections 39 and 40 supply where they were to be tried instead.

An answer that puts sections 15, 39 and 40 together as a single scheme, immunity in India balanced by liability in England, is the answer that shows understanding rather than recall.

A worked example

The Council of Fort William resolves in 1777 to make a regulation fixing the fees of pleaders in the provincial courts.

1. Is there power? Yes, under section 36: it is a rule for the good order and civil government of the settlement and its subordinate places.
2. Is it within the limit? It must not be repugnant to the laws of the realm, and a scale of fees is not.
3. Is it in force? Not yet. Under section 36 it is of no force until registered and published in the Supreme Court. If the Court declines to register it, it is not law.
4. What next? Under section 37 a copy goes to a Secretary of State. If the Crown signifies disallowance under the sign manual, and the disallowance is registered and published at Fort William, the regulation becomes null and void. If nothing is done within two years, it stands.
5. And if a Councillor takes 500 rupees from a pleader to have his name included? That is a present within section 23. He cannot be indicted for it in the Supreme Court, because of section 15, unless it is treason or felony; he cannot be arrested, because of section 17; but he may be prosecuted in the Court of King's Bench in England under sections 39 and 40.

Distinctions worth having straight

What beginners get wrong

"Section 36 made the Governor-General in Council the legislature for India." It made him a rule-making authority for the settlement of Fort William and its subordinate places, limited by repugnancy and dependent on registration in a court. A legislature for the whole of British India arrives with the Charter Act of 1833.

"The Supreme Court could veto legislation." In substance, yes, and that is the point worth making, but the mechanism was registration, not veto. A regulation not registered simply never became valid.

"Section 23 was a dead letter." It was the section Nandkumar invoked against Hastings, and the accusation was received by the Council. Whatever one thinks of what followed, the section was used.

Limits and criticism

Two criticisms are worth making and both are structural rather than moral.

The registration requirement put a court in the legislative process. A court exists to decide disputes about laws, and cannot do that impartially if it has already had to approve or refuse them. The Settlement Act of 1781 removed the requirement for regulations affecting the provincial courts, which is an admission that it had been a mistake.

The accountability provisions were unenforceable in practice. Section 40 itself says that trying Indian offences in England had already failed once because of the difficulty of proving in England what had been done in India, and it is not obvious that the new provisions cured it. An officer who could not be tried in Calcutta and could not realistically be convicted in London was, for most practical purposes, not triable at all. That gap is the reason impeachment, a political rather than a judicial remedy, was the route eventually used against both Hastings and Impey.

Quick revision

• s.17: no arrest or imprisonment of the Governor-General, Councillors, Chief Justice or judges on any proceeding in the Court. Not an immunity from suit.
• s.23: no presents and no private trade for the same officers; the Company's own trade excepted. The section Nandkumar invoked against Hastings.
• s.36: power to make rules, ordinances and regulations, not repugnant to the laws of the realm, with reasonable fines; void until registered and published in the Supreme Court.
• s.37: copies to a Secretary of State; the Crown may disallow under the sign manual, effective when registered at Fort William; two years' silence validates.
• ss.39 and 40: offences in India by the highest officers triable in the Court of King's Bench, because trial in England under former laws had proved ineffectual.

Test yourself

1. Why could the Governor-General in Council not make a valid regulation by itself? Because section 36 provided that its rules, ordinances and regulations were of no force until duly registered and published in the Supreme Court. Registration by the Court was a condition of validity.

2. What happened to a regulation that London did not like? Under section 37, copies went to a Secretary of State; the Crown could signify disallowance under the sign manual, and once that disallowance was registered and published at Fort William the regulation was null and void. If the Crown did not act within two years, the regulation stood.

3. What did section 23 prohibit, and to whom did it apply? The acceptance of any present, gift, donation, gratuity or reward, and the carrying on of any private trade or commerce, by the Governor-General, any member of Council, and the Chief Justice and judges of the Supreme Court. Only the Company's own trade was excepted.

4. How do sections 15, 17, 39 and 40 fit together? Sections 15 and 17 keep the Governor-General, the Councillors and the judges out of the Supreme Court's criminal process and free from arrest; sections 39 and 40 supply the forum where they were instead to be tried, the Court of King's Bench in England. Immunity in India was balanced by liability at Westminster.

5. Why did the Settlement Act of 1781 have to change section 36? Because the regulations the Council made for the provincial courts in 1780 were not registered in the Supreme Court and so were not binding on it, and no settlement of the quarrel was possible while the Court had to approve the rules by which the rival courts were constituted. The Act of 1781 empowered the Council to frame regulations for the provincial courts without reference to the Supreme Court.

The five jurisdictions

The Court is usually described as having five jurisdictions, and an answer that lists them with a line each is doing what the question asks.

As a court of common law, it heard ordinary civil actions, in contract, in debt, in trespass and the rest, with English forms of action, English pleading and, for issues of fact, a jury.

As a court of equity, it exercised the jurisdiction of the Court of Chancery in England: trusts, mortgages, accounts, specific performance, injunctions and the administration of estates. Equity is the body of principles developed to soften the rigidity of the common law, and the Court's equity side made it the forum for the complicated estate litigation that fills the reports of the period.

As a court of criminal jurisdiction, it sat with the commissions of oyer and terminer and gaol delivery, tried indictments with a grand jury and a petty jury exactly as at the Old Bailey, and could pass sentence of death. The trial of Nandkumar was conducted in that character.

As an ecclesiastical court, it exercised the jurisdiction that in England belonged to the Church courts, principally the grant of probate and letters of administration.

As a court of admiralty, it exercised maritime jurisdiction, including prize.

To those the Charter added the powers of the Court of King's Bench, which is the provision that gave the Court its prerogative writs: habeas corpus, mandamus, certiorari and prohibition. That single addition is the reason two of the seven proceedings MU names are habeas corpus cases, and it is also the direct ancestor of the writ jurisdiction you will study in Module III, because the Calcutta, Madras and Bombay High Courts inherited it in 1861 and article 226 generalised it in 1950.

Appeals

An appeal lay from the Supreme Court to the King in Council in England. That is the same destination as the appeal from the Mayors' Courts under the Charter of 1726, and it is the route that in 1833 became the Judicial Committee of the Privy Council. Module II follows it.

A worked example

An English merchant at Calcutta dies in 1776, leaving a will, an English partner, an Indian agent who says he was never paid, and a ship at sea that has been captured by a French privateer.

The ecclesiastical side grants probate of the will. The equity side administers the estate and takes the accounts between the partners. The common law side hears the agent's action for his wages, if the agent can bring himself within section 14 of the Act. The admiralty side deals with the ship. And if the executor imprisons the agent to stop him suing, the King's Bench powers supply a writ of habeas corpus.

One court, five hats, and every one of them English. Now imagine the same court applying the same five bodies of English law to a zamindar of Midnapore who has never left his district, and the whole difficulty of Module I is in front of you.

What beginners get wrong

"The Regulating Act established the Supreme Court." Section 13 authorised the King to establish it. The Charter of 1774 established it.

"The Supreme Court replaced the Mayor's Court at Calcutta." The Mayor's Court at Calcutta was superseded, and the new Court took its work; but the Mayors' Courts at Madras and Bombay continued, because the Charter of 1774 was for Bengal alone. Supreme Courts came to Madras in 1801 and to Bombay in 1823, and Module II deals with them.

"The Court's power to issue writs came from the Regulating Act." It came from the Charter, which gave the Court the powers of the Court of King's Bench. The Act is silent about writs.

"Impey was a Company man." He was a Crown appointee whom the Company could not dismiss, and the friction that produced is the subject of the next seven chapters. What is true, and is the fair criticism, is that in 1780 he accepted from the Council the office of Judge of the Sadar Diwani Adalat, with a salary held at their pleasure, and that acceptance became an article of his impeachment.

Limits and criticism

The criticism to make is not that the Charter was badly drafted but that it could only be as good as the Act it was made under, and the Act had left the two central questions open: what law the Court was to apply, and to whom.

The Charter answered neither. It gave the Court English jurisdictions, English process and English writs, and set it down in a province where the Company's own courts were applying Hindu and Muslim law under the plan of 1772. Two systems of law and two systems of courts were now operating in the same territory, neither subordinate to the other, and no authority in India could decide between them.

Cowell's verdict, written a century later, is worth carrying into the next chapters: the attempt to introduce an English superintendence of law and justice on the part of the Crown, and an administration of English rules of law and equity by an English court modelled on English fashion, was made rashly and without sufficient preparation, and without any measures to secure the co-operation of the local authorities. He adds, in fairness, that the Court afterwards won its way, with diminished powers, to greater authority and respect among Europeans and Indians alike than any other tribunal that has ever existed in India.

Quick revision

• Granted 26 March 1774, under section 13 of the Regulating Act. The Act authorised; the Charter established.
• Sir Elijah Impey Chief Justice; Chambers, Lemaistre and Hyde puisne judges. English barristers, appointed by the Crown, paid by the Company.
• Opened at Calcutta in October 1774, the same month the new Councillors arrived.
• Five jurisdictions: common law, equity, criminal, ecclesiastical, admiralty; plus the powers of the Court of King's Bench, which carried the prerogative writs.
• Appeal to the King in Council.
• It did not extend beyond Bengal: Madras got a Supreme Court in 1801 and Bombay in 1823.

Test yourself

1. What is the correct relationship between the Regulating Act and the Charter of 1774? Section 13 of the Act made it lawful for the King to erect a Supreme Court and described what it was to have; the Charter of 26 March 1774, granted under that power, actually erected the Court, appointed its judges and settled its constitution.

2. Name the first four judges. Sir Elijah Impey as Chief Justice, with Robert Chambers, Stephen Caesar Lemaistre and John Hyde as puisne judges.

3. List the Court's jurisdictions and say what the King's Bench powers added. Common law, equity, criminal, ecclesiastical and admiralty. The powers of the Court of King's Bench added the prerogative writs, habeas corpus, mandamus, certiorari and prohibition, which is why habeas corpus appears in two of the seven famous proceedings and why the writ jurisdiction descends from this Court to the High Courts and then to article 226.

4. Why is the coincidence of dates in October 1774 worth noticing? Because the Supreme Court opened in the same month that Clavering, Monson and Francis arrived and took their seats. The Court and a Council divided against itself began work together, and neither had any settled way of dealing with the other.

5. What did the Charter fail to settle? The same two things the Act failed to settle: what law the Court was to apply, and to whom its jurisdiction extended. It supplied English jurisdictions and English process without answering either.

June 1775. The trial. The indictment contained twenty counts, framed on the English statute 2 Geo. II c. 25, which made it a capital felony to forge or publish a bond, promissory note or writing obligatory with intent to defraud. The reason for so many counts is technical and worth knowing: by the rules of criminal pleading each count had to charge one offence and no more, and an indictment for forgery had to state the person intended to be defrauded, so the same act produced counts for forging and for publishing, against a bond, a writing obligatory and a promissory note, and against each of several persons who might have been defrauded. Only the nineteenth and twentieth counts turned out to matter.

All four judges sat. A grand jury found the bill, and a petty jury of twelve Englishmen tried the case. Nandkumar's counsel challenged the first jury impanelled, and the challenge was allowed. The jury convicted.

5 August 1775. Nandkumar was hanged at Calcutta. The judges had power to respite, that is, to postpone, a capital sentence and refer the case to the Crown for mercy, and they did not use it. Clavering's own minute in the Bengal Secret Consultations records that a paper sent to him by Nandkumar on the 4th was left unread on his table until the 6th, "which was the day after his execution".

The legal objections, stated fairly

There are four, and a good answer states each and gives the answer to it.

One: the statute did not apply. Forgery was made a capital felony in England by an Act of 1728. Was that Act in force at Calcutta, and did it reach a Brahmin who was not an Englishman? The Court held that it was, and the strongest support for that view is the fact recorded in the next chapter: Radhacharan Mitra, a Hindu of rank, had been convicted and sentenced to death for forgery at Calcutta in 1765, ten years before the Supreme Court existed, and pardoned. The statute had been applied there before, and to a man of the same community and rank.

Two: the act was done before the Court existed. The alleged forgery was of 1770; the Court was created in 1774. The answer is that the Court's jurisdiction was over the offence and the offender, not over the date, and the statute creating the offence was already in force at Calcutta; but a student is entitled to think the point uncomfortable.

Three: the punishment was disproportionate and alien. Hanging for forgery was English law, and severe even in England; it was unknown to Hindu and Muslim law, and shocking to Indian opinion, particularly as applied to a Brahmin. That objection is unanswerable as a matter of policy, and it is the real force of the criticism. It is an objection to the Regulating Act's silence about the applicable law, more than to the judges.

Four: the timing. A man who accuses the Governor-General in March is prosecuted for conspiracy by the Governor-General in April, arrested for an old forgery in May, tried in June and hanged in August. Even if every step was regular, the sequence looks like what Macaulay said it was.

What can be said on the other side

The case against a conspiracy between Hastings and Impey, argued at length by Sir James Fitzjames Stephen, rests on facts rather than on character, and these are the ones to know.

The prosecutor for forgery was Mohan Prasad, not Hastings. Mohan Prasad was Nandkumar's own enemy, had made the same charge five years earlier, and had acted as attorney in the earlier civil litigation between the parties, so he knew details of the transaction that Hastings could not have known.

The deed alleged to be forged was in the custody of the Court until about 24 April, and Nandkumar was arrested on 6 May. To have got up such a prosecution in ten or twelve days, in a matter of accounts in several languages, would have required investigations of which there is no evidence and which nobody suggested to Hastings when he was cross-examined about the prosecution on oath.

The trial was before all four judges and a jury, and the verdict was the jury's.

Against all that stands the plain fact that the man hanged was the Governor-General's accuser, and that the Governor-General's own conspiracy prosecution was running at the same time. The honest answer says both.

A worked example: how to answer the question

Suppose the question is: "Discuss the trial of Raja Nandkumar. Was it a judicial murder?"

1. State the facts in order, with the four dates: March 1775 the accusation, April the conspiracy prosecution and bail, 6 May the arrest for forgery, June the trial, 5 August the execution.
2. State the legal basis: twenty counts on 2 Geo. II c. 25, tried by the Supreme Court in its criminal jurisdiction under the Charter of 1774, with a grand jury and a petty jury.
3. State the four objections, as above.
4. State the answers to them, including the 1765 conviction of Radhacharan Mitra, which is the fact most students do not know and which is worth a good deal in an answer.
5. Conclude honestly. The forms of English criminal law were observed. The application of English criminal law to an Indian for an Indian transaction, with a capital penalty unknown to his own law, was the fault of the Regulating Act rather than of the judges, and it is the reason the Settlement Act of 1781 had to provide expressly for the personal law of Hindus and Muslims.

What beginners get wrong

"Hastings prosecuted Nandkumar for forgery." He prosecuted him for conspiracy. The forgery prosecution was brought by Mohan Prasad. Merging the two is the commonest error in answers on this case.

"Nandkumar was tried for accusing Hastings." He was tried for forging a bond in a private transaction with a banker's estate. Whether the accusation caused the prosecution is exactly the question in dispute.

"The judges convicted him." The jury convicted him. The judges tried the case and passed sentence, and the criticism of them is that they did not respite the sentence, not that they returned the verdict.

"Impey was later convicted for it." He was impeached in the House of Commons and was acquitted of the charges. Impeachment is a political proceeding before Parliament, not a trial in a court, and Hastings too was impeached and acquitted.

Limits and criticism

The lasting significance of the case is not who was to blame. It is what it proved about the system.

The Supreme Court could try an Indian, on English criminal law, for an act committed before the Court existed, and hang him, and no authority in India could review it. The only appeal from a capital conviction was the judges' own power to respite, which they held and did not use. The Council could not intervene, and did not.

That is a court with no check on it in the country where it sits, applying a law the country does not know. Whatever one concludes about Impey, the arrangement itself was indefensible, and Parliament effectively conceded as much six years later.

Quick revision

• March 1775: Nandkumar accuses Hastings before the Council of taking presents, contrary to s.23 of the Regulating Act. Hastings is outvoted under s.8.
• April 1775: Hastings prosecutes Nandkumar, Fowke and Radhacharan for conspiracy; Nandkumar and Fowke held to bail.
• 6 May 1775: arrested for forgery of a bond of Bulaki Das, at the instance of Mohan Prasad, who had made the same charge about five years earlier in the Mayor's Court.
• June 1775: tried on twenty counts under 2 Geo. II c. 25 before all four judges; grand jury and petty jury; convicted.
• 5 August 1775: hanged. The judges' power to respite was not used.
• The strongest fact for the defence of the Court: Radhacharan Mitra was convicted of forgery at Calcutta in 1765 under the same statute and pardoned.

Test yourself

1. Who prosecuted Nandkumar for forgery, and who prosecuted him for conspiracy? Mohan Prasad prosecuted the forgery; Warren Hastings prosecuted the conspiracy. They are two different proceedings and merging them is the commonest mistake.

2. On what statute was the indictment framed, and how many counts did it contain? On 2 Geo. II c. 25, which made it a capital felony to forge or publish a bond, promissory note or writing obligatory with intent to defraud. There were twenty counts, because each count had to charge a single offence and to name the person intended to be defrauded.

3. State the four legal objections to the trial. That the English forgery statute did not apply at Calcutta or to a Hindu; that the act preceded the Court's creation; that a capital penalty for forgery was unknown to Hindu and Muslim law and shocking to Indian opinion; and that the sequence of accusation, prosecution, arrest and execution within five months makes the proceedings look directed.

4. What is the strongest answer to the first objection? That Radhacharan Mitra, a Hindu of rank, had been tried, convicted and sentenced to death for forgery at Calcutta in 1765 under the same statute, and pardoned. The statute had been applied at Calcutta to an Indian of the same rank ten years before the Supreme Court existed.

5. What does the case prove about the system, whatever one concludes about the judges? That a Crown court applying English criminal law could try and hang an Indian in Bengal with no appeal, no review by any authority in India, and no rule telling it what law to apply. That is a defect of the Regulating Act, and the Settlement Act of 1781 had to correct it.

So the case is cited, and should be cited by a student, as evidence on a disputed question: whether the application of English criminal law to Indians at Calcutta in 1775 was a novelty invented for Nandkumar, or the continuation of what had been done there for a decade.

What it does not prove

Be careful here, because an answer that overstates the point is as wrong as one that omits it.

Radhacharan Mitra was pardoned. Nandkumar was hanged. If a student uses the 1765 case to argue that Nandkumar's execution was ordinary and unremarkable, the reply is immediate: the earlier man's life was spared and the later man's was not, and the judges of 1775 had the same power to respite that had been exercised in 1765.

Nor does the case answer Macaulay's third proposition. That hanging a Brahmin for forgery was shocking to Indian notions is a statement about Indian opinion, and it is not refuted by showing that it had happened before. If anything the 1780 petition of the British inhabitants of Bengal supports Macaulay on that point: it records the "general consternation" and astonishment with which Indians of all ranks were seized by the example of Radhacharan Mitra, because they understood from it that they might be tried by a law they did not know for an act their own law did not treat as capital.

The 1765 case therefore proves that the practice existed, and simultaneously shows what the practice did to Indian confidence in the courts. Both halves belong in an answer.

A worked example

Two questions, and the same case answers each differently.

"Was the application of English criminal law to Nandkumar unprecedented?" No, and Radhacharan Mitra's conviction in 1765 is the proof. English criminal law had been administered at Calcutta under the Charters of 1726 and 1753 by the Governor and Council as Commissioners of Oyer and Terminer, and it had been applied to a Hindu of rank in a capital case.

"Did Indians accept the application of English criminal law to them?" No, and the same case is the proof of that too. The contemporary petition of 1780 records the consternation the conviction caused among Indians precisely because it showed them what could be done.

That is the discipline this paper rewards: the same fact, used for the two different propositions it actually supports, rather than for the one a textbook happens to have attached to it.

What beginners get wrong

"Radha Charan was tried by the Supreme Court." The trial that matters was in 1765, and the Supreme Court was created in 1774. The 1775 proceeding against a man of that name was a charge of conspiracy, not a trial for forgery.

"He was hanged." He was convicted and condemned, and then pardoned.

"The case is about Radha Charan." In practice the case is about Nandkumar: it is cited by both sides in that controversy, and it has no other significance in this syllabus.

Limits and criticism

The honest thing to say about this topic is that MU has printed a case name whose reference is not certain, and that the sources treat it as a footnote to a larger argument rather than as a leading case in its own right. Stephen gives it a paragraph; the Impey Memoirs give it a sentence and a footnote; the contemporary petition gives it a page because of the alarm it caused.

A student should therefore not try to build a large answer out of it. What is worth having is the date, the statute, the outcome, the pardon, and the use to which the case is put in the Nandkumar debate. That is what an examiner can reasonably ask.

Quick revision

• 1765, at Calcutta, before the Supreme Court existed: Radhacharan Mitra, a Hindu of rank, tried for forgery under 2 Geo. II c. 25, convicted and condemned to death, then pardoned by the King.
• Period spellings: Radachurn Mettre, Radachund Mettre.
• Cited by Stephen and by the Impey Memoirs to answer Macaulay's claim that the English forgery statute had never been enforced against Indians at Calcutta.
• The 1780 petition of the British inhabitants records the "general consternation" the conviction caused among Indians.
• A different Radhacharan was charged with conspiracy in the Supreme Court in 1775 along with Nandkumar and Fowke. Distinguish the two.

Test yourself

1. In what year and in what court was Radhacharan Mitra tried, and what was the outcome? In 1765, at Calcutta, before the criminal jurisdiction exercised by the Governor and senior members of Council as Commissioners of Oyer and Terminer under the Charters of 1726 and 1753. He was convicted of forgery under 2 Geo. II c. 25 and condemned to death, and was pardoned.

2. Why is the case cited in the controversy over Nandkumar? Because it shows that the English forgery statute had been applied at Calcutta to a Hindu of rank in a capital case ten years before Nandkumar, which contradicts the claim that it had never been put in execution against Indians there.

3. What does the case NOT prove? It does not show that Nandkumar's execution was unremarkable, because Radhacharan Mitra was pardoned and Nandkumar was not; and it does not show that Indians accepted the application of English criminal law, because the contemporary petition of 1780 records the consternation this very conviction caused.

4. What is the ambiguity in MU's label, and how should it be handled? MU lists the case among cases showing the working of the Supreme Court, but the trial that matters was in 1765, before that Court existed; a different Radhacharan was charged with conspiracy in the Supreme Court in 1775. An answer should give the 1765 trial as the case, state its significance, and distinguish the 1775 conspiracy charge in a sentence.

That objection sounds like a quibble and Impey took some trouble to explain, in his letter to the Court of Directors of 19 September 1775, that it was not. The omission of words alleging a right to imprison without bail was intentional, because if those words had been inserted the return would have been false: Mr Cottrell, the President of the Revenue Council, had said that bail was in fact taken in such cases. Impey added that in cases of disputed demands nothing could be more unjust and oppressive than a power to imprison without bail.

What the Court ordered

The Court ordered the President of the Council to admit Kamaluddin to bail, and directed that he was not to be taken into custody again until the under-renter had been called upon to pay the arrears and had proved insolvent.

Two things are being done. The first is the ordinary work of habeas corpus: a man imprisoned on an insufficient return is admitted to bail. The second is more intrusive: the Court is telling the revenue authority in what order it must pursue its debtors. Impey's justification was that this was the ordinary practice where an under-tenant had been recognised by the revenue authorities, and that it was what common sense required.

The Council's answer, and how far it went

The Governor-General in Council treated the order as an invasion of their rights as Diwan. Their argument was textual, and a student should be able to state it: section 7 of the Regulating Act vested in them "the ordering, management and government of the revenues", and they read that as vesting it exclusively, so that the Supreme Court was, in their words, "not empowered to take cognizance of any matter or cause dependent on or belonging to the revenue".

On that footing they resolved, by a majority, that they ought to direct the Provincial Council to imprison Kamaluddin and his surety and keep them in custody until they paid, and further that the Provincial Councils should give no attention to any order of the Supreme Court or of any judge in matters solely concerning the revenue.

The resolution never took effect, and the reason is worth knowing. One member of the majority declared that he would not assent unless the Governor-General concurred, and Hastings refused his support. So a resolution instructing the whole revenue establishment of Bengal to disobey the King's court was defeated by one man's condition and one man's refusal.

The observation that is worth more than the facts

Stephen's comment on the Council's position is the most useful single sentence in the whole of topic 1.2, and it deserves to be in an answer.

The Court's decision was subject to appeal to the King in Council. The Council's act in refusing to submit to the Court's jurisdiction was, in its nature, subject to no appeal at all.

That is the whole difference between a legal claim and an assertion of power. The Court might have been wrong about the extent of its jurisdiction; if it was, there was a way of correcting it, and the Council had five years in which to use that way and never did. What the Council did instead was to decide the question of jurisdiction in its own favour and propose to enforce that decision by directing its officers to ignore the Court. Stephen calls it an outrageous assertion of military power against law, and says it would have led straight to civil war in the streets of Calcutta. Four years later, at Cossijurah, it very nearly did.

A worked example

Follow the two competing arguments as they would be put today.

For Kamaluddin. I am imprisoned. The writ of habeas corpus requires my gaoler to show lawful authority. The return does not show a power to detain me without bail, and my gaoler's own President admits that bail is taken in such cases. Therefore the return is bad and I must be admitted to bail. Nothing in this argument requires the Court to decide anything about revenue at all: it decides only whether a return to a writ is good.

For the Council. Section 7 vests the ordering, management and government of the revenues in us. Whether an arrear is due, and how it is to be enforced, is management of the revenue. The Court has no jurisdiction over the subject matter, and the writ should never have issued.

Where the argument actually breaks down. The Council is right that it has the management of the revenue; it does not follow that it has the power to imprison a subject without any court examining the authority for the imprisonment. Those are different propositions, and the Council treated them as one. That confusion, between having a power and being unaccountable in the exercise of it, is what every one of the seven proceedings is really about.

Distinctions worth having straight

What beginners get wrong

"The Supreme Court released Kamaluddin." It admitted him to bail, on a defective return. That is a smaller order than a release, and the difference matters when you are asked whether the Court exceeded its jurisdiction.

"The Council ordered the Provincial Councils to disobey the Court." It resolved to, and the resolution failed, because one member made his assent conditional on the Governor-General and Hastings refused. Say "resolved but did not carry out".

"The case was about whether the Court had jurisdiction over Indians." It was about whether it had jurisdiction over a revenue matter, and about the sufficiency of a return to habeas corpus. Kamaluddin was a farmer of the revenue and so arguably in the Company's service under section 14; nobody's status was the difficulty here. The difficulty was subject matter.

Limits and criticism

There are two fair criticisms of the Court in this case, and an answer that makes them is stronger than one that simply defends it.

The direction that Kamaluddin was not to be retaken until the under-renter had been pursued and found insolvent goes beyond deciding whether a return is good. It tells a revenue authority how to conduct its collection. Impey's answer, that this was the recognised practice, is a good answer to a charge of arbitrariness but not to a charge of overreach.

And the Court had no way of knowing, and no means of finding out, what the practice of the revenue administration was, except from the people it was in dispute with. A court that must decide the limits of another authority's powers, on that authority's own evidence, in a system where nobody above them both can decide between them, is in an impossible position. That is a criticism of the Regulating Act, and it is the criticism the Settlement Act of 1781 finally acted on when it excluded revenue matters from the Court altogether.

Quick revision

• 1775. Kamaluddin, period spelling Commaul O Dien, farmer of the revenue for Hidgelee.
• Committed in execution by the Calcutta Council of Revenue for an arrear of revenue; obtained habeas corpus from the Supreme Court.
• The return was excepted to as defective in form: it did not express a power to commit without bail or mainprize, and the omission was deliberate because the President admitted bail was taken in such cases.
• The Court ordered the President to admit him to bail, and that he not be retaken until the under-renter had been called on and proved insolvent.
• The Council said s.7 gave them the revenues exclusively; a majority resolved to direct the Provincial Councils to ignore the Court in revenue matters; the resolution failed because one member conditioned his assent on the Governor-General and Hastings refused.
• The Court's decision was appealable to the King in Council. The Council's refusal was appealable to nobody.

Test yourself

1. What is habeas corpus, and what question does it ask? A writ commanding whoever detains a person to produce him and show the cause of the detention. It asks whether the detention is lawfully authorised, not whether the prisoner is guilty.

2. Why was the return defective, and why was that not a technicality? Because it did not express a power in the Council of Revenue to commit without bail or mainprize. It was not a technicality because the omission was deliberate: inserting those words would have made the return false, since the President of the Revenue Council admitted that bail was in fact taken in such cases.

3. What did the Court actually order? That the President admit Kamaluddin to bail, and that he not be taken into custody again until the under-renter had been called upon to pay the arrears and had proved insolvent.

4. State the Council's argument and the answer to it. That section 7 of the Regulating Act vested the ordering, management and government of the revenues in the Governor-General and Council exclusively, so the Court could take no cognizance of a revenue matter. The answer is that having the management of the revenue is not the same as being unaccountable for imprisoning a subject, and that if the Court was wrong about its jurisdiction the remedy was an appeal to the King in Council, which the Council never attempted.

5. Why did the Council's resolution to ignore the Court come to nothing? Because one member of the majority would not assent unless the Governor-General concurred, and Hastings refused his support.

What the Company's own attorney did

This is the detail that decides how the case should be described, and it comes from the Company's own papers.

The matter was referred to the Company's attorney, who wrote to the Governor-General and Council on 31 August 1777. He said that he had shown the judge, Mr Justice Hyde, "such part of the proceedings as I thought were proper for him to see". He had not chosen to show him the part where the Board resolved to confine Sarup Chand for the balance due as treasurer, because it was not clear to him that the Board was authorised to do that. He added that he could have wished that the ostensible reason for the confinement should be stated as the Rs 10,000 due for revenue.

In plain words: the Company's attorney kept back from the court the true reason for the imprisonment, and wished the Company's servants to give a false account of their conduct.

What the Court decided

Mr Justice Le Maistre delivered an elaborate judgment, which in the end did no more than allow Sarup Chand to give bail. In it he restated the principles Impey had laid down in Kamaluddin's case, and added two propositions that are the substance of the case.

A body cannot be judge in its own cause. As regards the debt due from Sarup Chand as treasurer, the matter in dispute was one of contract, and the Council ought not to be judges in their own cause, nor to enforce what they regarded as their rights by the arbitrary imprisonment of their debtor.

A body claiming a power to imprison must claim it in a name the law knows. Le Maistre observed that a man "might as well say that he was commanded by the King of the Fairies" as by the chief and Provincial Council of Dacca, because that body was not a corporation known to the law. James Mill censured the remark as flippant, and Stephen defends it: there is a clumsy attempt at playfulness in it, but the meaning is clear and is good sense. When a person asserts a right to imprison another, he must claim it either in his own name or in some corporate or official name that the law recognises. The Provincial Council of Dacca was an administrative arrangement of the Company, not a body with legal personality, and it could not point to any instrument that gave it a power to imprison.

A worked example

Set the case out as a modern lawyer would.

• Who detains? The Chief and Council of Dacca.
• Under what authority? None that they can name. They are not a corporation, they hold no commission to imprison, and the statute vests the revenues in the Governor-General and Council at Fort William, not in them.
• For what? Two sums. One is a revenue arrear; the other is a contractual debt to the Company as banker.
• Is the second within their competence at all? No. It is a claim in contract, and the claimant is themselves.
• Is the claimant impartial? No. The member whose loan created the shortfall sat on the board that ordered the imprisonment.
• What relief? Not liberty outright: the Court allowed bail, which leaves the Company's claim intact and takes away only the imprisonment.

Notice how modest the relief is, and hold that thought when you read the Council's complaints of interference.

What the case shows

Stephen's own summary is the sentence to remember: this case shows that there were grievous scandals to be remedied among the provincial Councils, and that their complaints of the interference of the Court were much more natural than justifiable.

That is a precise formulation and it is worth copying. The Councils' irritation was natural: they were being sued, examined and overruled by a court that had arrived from England three years earlier and did not understand revenue administration. It was not justifiable: the thing the Court stopped them doing was imprisoning a man to recover a private debt owed partly to one of their own members, on no authority they could name.

What beginners get wrong

"The Court released Sarup Chand." It allowed him to give bail, after an elaborate judgment. The relief in these habeas corpus cases is consistently narrower than students assume.

"The Council imprisoned him for revenue arrears." For two things: an arrear of revenue as surety, and a balance as treasurer. The second is the one that mattered, and it is the one the Company's attorney kept out of the judge's sight.

"The King of the Fairies remark shows the judges were contemptuous of Indian institutions." It was said about a Provincial Council of the Company, that is, about a body of Englishmen, and its point was legal: a body that is not a corporation known to the law cannot claim a power to imprison. Mill's criticism of the phrasing is fair; the criticism of the substance is not.

Limits and criticism

The case is the best available answer to the charge that the Supreme Court was simply oppressing the Company's administration, and a student should use it that way.

But it also shows the structural problem from the other side. The Court could correct a particular abuse in a particular case, at the instance of a man rich enough and bold enough to come to Calcutta and hire counsel. It could not reform the Provincial Councils, which is what was actually needed, and it had no way of knowing how many Sarup Chands there were in Dacca, Patna and Murshidabad who never applied to it.

That is the argument for the answer eventually adopted in 1780 and 1793: not a court supervising an unreformed administration case by case, but an administration reorganised so that the officer who collects is not the officer who judges. Sarup Chand's case is the strongest evidence for the need, and the weakest possible remedy for it.

Quick revision

• 1777, Dacca. Sarup Chand, period spelling Seroop Chund: malzamin, surety for revenue, Rs 10,000; and kazanchi, treasurer to the Dacca Council, Rs 66,745.
• He could not pay because he had lent the Company's money to the Company's servants, including Rs 10,000 to Mr Shakespeare, a member of the Dacca Council.
• The Board ordered him confined; Shakespeare sat on the board that ordered it.
• The Company's attorney withheld from the judge the part of the proceedings showing the true reason, and wished the ostensible reason to be the revenue arrear.
• Le Maistre J.: the Council may not be judge in its own cause in a matter of contract, and a body claiming a power to imprison must claim it in a name the law knows, the Dacca Council being no corporation known to the law.
• Relief: bail.
• Stephen: the Councils' complaints of interference were more natural than justifiable.

Test yourself

1. In what two capacities was Sarup Chand liable, and for how much? As malzamin, surety for the payment of revenue, for Rs 10,000; and as kazanchi, treasurer to the Dacca Council, for Rs 66,745.

2. Why could he not pay the treasury balance? Because he had lent a considerable part of it to servants of the Company, including Rs 10,000 to Mr Shakespeare, a member of the very Council that ordered his confinement.

3. What two principles did Le Maistre state? That a body may not be judge in its own cause and may not enforce what it regards as its rights by arbitrarily imprisoning its debtor, the matter being one of contract; and that a body claiming a right to imprison must claim it in its own name or in a corporate or official name known to the law, which the Provincial Council of Dacca was not.

4. What did the Company's attorney do, and why does it matter? He showed the judge only part of the proceedings, deliberately withholding the resolution to confine Sarup Chand for the treasury balance because he doubted the Board's authority to do it, and wished the revenue arrear to be given as the ostensible reason. It matters because it shows that the Company's own legal adviser knew the imprisonment could not be justified.

5. How should the case be used in an answer about the conflict between the Court and the Council? As the clearest evidence that the Councils' complaints of interference were, in Stephen's words, more natural than justifiable: the interference complained of consisted of stopping an imprisonment ordered without authority by a board that included the debtor whose loan had caused the shortfall.

What the Council did, and why it is the point of the case

The Governor-General in Council refused the compromise. Their minute records three things.

That this was the first instance in which the members of a Diwani court had been sued as individuals in the Supreme Court for acts done in their judicial characters.

That to compromise the suit would weaken the authority of the courts.

And that the suit ought to take its course, so that it could be ascertained by a legal decision whether such an action lay.

Read that again, because it is the opposite of what the Council did in every other case in this chapter. Here they wanted the question litigated. They were right to, and it is the single strongest answer to the charge that the Council simply resisted the Court's jurisdiction whenever it was inconvenient: when they thought the law was on their side, they asked for a decision.

The question, and the answer the Court had already given

The question is one every legal system has to answer: is a judge liable to be sued for what he does as a judge?

Every system answers no, or nearly no, and for a reason that has nothing to do with protecting judges. A judge who can be sued by the losing party will decide cases with an eye to the risk of being sued, which means he will not decide them on their merits. The immunity exists for the litigant's benefit, not the judge's.

The difficulty in 1779 was that the Company's adalats were not obviously courts. They had been set up by the Company under a plan of 1772 that Parliament had not authorised, their presiding officers were revenue servants, and the Regulations of 1780 were not registered in the Supreme Court. If they were not courts, their officers were merely officials doing acts, and an official who imprisons or dispossesses somebody without lawful authority is liable like anybody else.

Stephen summarises the effect of the decisions the Supreme Court had in fact given up to 1779, from the report of Touchet's Committee, and it is not the answer the Council complained of:

• The courts established by the Company were recognised as courts of justice, whose judges were not liable to actions for their judicial proceedings, even if irregular, unless corrupt.
• They had a right to hold revenue debtors to bail for revenue debts, and to confine them by putting peons on them or in prison until bail was given to appear before the Diwani court.
• But they had no right to imprison them without bail in order to secure payment of what might ultimately be found due.

That is a coherent and rather moderate position: the adalats are courts, their judges are protected, and what is not protected is imprisonment without bail to secure a disputed sum.

A worked example

Apply the Supreme Court's stated position to the three cases you have now read.

Kamaluddin. Imprisoned to secure payment of a disputed arrear, on a return that did not show a power to commit without bail. Within the third proposition: no right to imprison without bail. Bail ordered.

Sarup Chand. Imprisoned by a body that was not a corporation known to the law, to recover a debt owed partly to one of its own members. Not a judicial act at all; the Council was acting as a creditor. Bail ordered.

Dutt v. Hosea. A judge of a Diwani Adalat sued for the manner in which he conducted a suit. Within the first proposition: a judicial proceeding, irregular perhaps but not alleged to be corrupt, and so protected.

Three cases, one consistent rule, applied to three different situations. A student who can do that has understood topic 1.2 better than one who has memorised seven stories.

What beginners get wrong

"The Supreme Court held that the Company's courts were not courts." It held the opposite, and Stephen sets the propositions out from the record. The belief that it held otherwise is the received account and it is wrong.

"The Council resisted the Court in this case." In this case the Council asked for the question to be decided and refused a compromise its own Advocate-General recommended. That is the fact that makes the case worth teaching.

"Gora Chand Dutt was the defendant." He was the person against whom the adalat's proceedings had been taken. The defendant in the Supreme Court was Hosea, the judge.

Limits and criticism

The case exposes the deepest defect of the whole arrangement, which is not about jurisdiction at all.

The Supreme Court was being asked to decide whether the Company's courts were courts. Whatever it decided, it was deciding on the status of a rival institution in a dispute to which the Company was a party, with no superior tribunal in India to review it and no statute that answered the question. The Council was right that a legal decision was needed. It was wrong to suppose that a decision by one of the two contending bodies could settle anything.

Only Parliament could, and in 1781 Parliament did: the Settlement Act declared that no action should lie in the Supreme Court against any judicial officer of the country courts in respect of any judgment or order of his court, nor against any person for an act done in pursuance of such an order, it being considered reasonable to render the provincial magistrates, Indian and British alike, more safe in the execution of their office. That provision is the direct answer to Dutt v. Hosea, and a student who can say so has connected topic 1.2 to topic 1.3.

Quick revision

• 1779. Dutt v. Hosea, MU's "Gora Gopichand's Case".
• Hosea, head of the Diwani Adalat at Murshidabad, sued personally in the Supreme Court for irregularities in the proceedings against Gora Chand Dutt.
• The irregularity: claim and counterclaim heard together, judgment for the defendant for more than the plaintiff had claimed, then execution against body, goods and outstanding debts.
• Advocate-General Sir John Day advised that the Council would lose and recommended a compromise.
• The Governor-General in Council refused, because it was the first such suit against judges of a Diwani court as individuals for judicial acts, and the question ought to be decided.
• What the Supreme Court had in fact held by 1779: the Company's courts are courts; their judges are not liable for judicial acts unless corrupt; they may hold revenue debtors to bail; they may not imprison without bail to secure a disputed sum.
• The Settlement Act 1781 later barred such actions by statute.

Test yourself

1. Who sued whom, and for what? Gora Chand Dutt's litigation produced a suit in the Supreme Court against Mr Hosea, the head of the Diwani Adalat at Murshidabad, for irregularities in the procedure that court had followed, namely hearing claim and counterclaim together, giving judgment against the plaintiff for more than had been claimed against him, and enforcing it against body, goods and outstanding debts.

2. Why did the Governor-General in Council refuse to compromise? Because it was the first instance of the members of a Diwani court being sued as individuals for acts done in their judicial characters, because a compromise would weaken the authority of the Company's courts, and because they wanted the question settled by a legal decision.

3. State the three propositions the Supreme Court had in fact laid down by 1779. That the Company's courts were recognised as courts of justice and their judges were not liable to actions for judicial proceedings, even irregular ones, unless corrupt; that they might hold revenue debtors to bail and confine them until bail was given; and that they might not imprison such debtors without bail to secure payment of what might ultimately be found due.

4. How did Parliament answer the question this case raised? By providing in the Settlement Act of 1781 that no action should lie in the Supreme Court against any judicial officer of the country courts in respect of any judgment or order of his court, nor against any person for an act done in pursuance of such an order.

5. Why is a judge's immunity from suit granted for the litigant's benefit rather than the judge's? Because a judge who may be sued by the loser will decide with an eye to that risk instead of on the merits, and it is the litigant who then suffers.

The Kazi and Muftis went to the house, after difficulty and a dispute about whether Khwaja Zakaria was the widow's attorney, got in, locked it up and sealed some of the doors. They returned a few days later and made an inventory. It was said that on that occasion they behaved very roughly, compelling the plaintiff by threats of force to leave one room after another until she took refuge in a filthy outhouse open to a common bazaar, and that after further indignities she retired to the dargah of Shah Azam, a shrine inhabited by faqirs who gave her hospitality.

A guard was set on her by the Council there, in the words of a letter from Mr Law to Hastings, "to intimidate her to give up the slave-women, papers, and seal of the deceased". She remained under restraint for about three months. At first the guards would not even allow the faqirs to give her food, and they did so secretly; the strictness was afterwards relaxed.

The report the officers were never asked for

The Kazi and Muftis then held an inquiry and sent in a report, delivered before 20 January 1777.

It began by describing itself as a report "on the right of inheritance claimed by the widow and nephew", and described its authors as having been "appointed in an inquiry relative to the right of inheritance claimed respectively by the widow and nephew".

That was not the fact. They had been appointed only to take an inventory, lock up the goods under seal, and report to the Council. Deciding a disputed right of inheritance is an entirely different thing.

The report then stated the nature of the dispute for the first time: that Bahadur Beg claimed as adopted son, that the widow claimed under a will and a deed of gift, and that both the will and the deed of gift were forged. It recommended that the property, excluding the altamgha (a revenue-free grant, which they said formed no part of the inheritance), be divided into four shares, three to Bahadur Beg and one to the widow.

How the facts were ascertained is the part a law student should dwell on. There was no proceeding in the nature of a trial. The most important facts were established by statements made in casual conversation, not on oath, and in some instances by writing notes to persons regarded as witnesses and receiving verbal answers back. Impey observed with justice that they accepted the bare statement of the claimant as proof of his claim because it "appeared clear and explicit", without any evidence at all. Stephen's own conclusion is that the report betrays such an absolute unconsciousness of the plainest requirements of evidence as to give an impression of innocence and good faith.

The suit and the judgment

The widow sued the members of the Patna Provincial Council and the law officers in the Supreme Court at Calcutta.

The Court gave judgment for the plaintiff, and assessed the damages on the principle that she had been deprived of property in her possession, to which she was not shown not to be entitled, by an act corrupt and oppressive in its essence and executed in a way needlessly brutal and offensive.

The damages were three lakhs of rupees. Some of the law officers were afterwards sued separately and Rs 15,000 damages were given.

What the case proves, on the evidence

Four points are clear on the record and an answer that gives them is well grounded.

The widow was treated with great harshness and underwent great indignities, and she never received even the quarter of the property the report had assigned to her.

The report was, whether made in good faith or not, to the last degree weak and poor, and rested on no evidence in any recognisable sense.

The Patna Council was guilty of a gross desertion of duty. The proof is not the Supreme Court's judgment but a letter from Warren Hastings to the Patna Council of 12 January 1778, who certainly had no leaning towards the Supreme Court, taking notice of great irregularity in the proceedings of the law officers, whose business had been solely to take an inventory.

And if Patna was a fair specimen, the Provincial Councils considered as courts of justice were worthless, and no system of justice deserving the name existed at that time outside Calcutta. That is Stephen's conclusion and it is the conclusion the case is set for.

What can fairly be said on the other side

Impey's view was that the proceeding was gross oppression and plunder of a helpless widow, effected by a false accusation of forgery. Mr Law, of the Patna Council, wrote to Hastings that the struggle was really between Khwaja Zakaria and others on one side and Bahadur Beg on the other, for the charge of the widow and the possession of the estate, "and this is ever the case where the widow has a claim to any considerable inheritance". Warren Hastings, in a minute, gave reasons for thinking that the deeds really were forged and that the report was not only made in good faith but was true.

Stephen says frankly that he has not studied the question enough to give an opinion, and that strong observations arise on both sides. A student is entitled to say the same. Whether the widow's deeds were genuine was never properly tried by anybody, and that is the point: the objection to what the Patna Council did is not that they reached the wrong result but that they reached a result without a trial.

Distinctions worth having straight

A worked example

Take the same facts and change one of them at a time, to see exactly which fact decided the case.

As it happened. Shahbaz Beg Khan dies at Patna, in the mofussil. His nephew Bahadur Beg petitions the Patna Provincial Council; the Council orders its Kazi and Muftis to take an inventory and report; they go far beyond that order, and the widow Nadirah Begum sues the members of the Council and the law officers in the Supreme Court at Calcutta, which entertains the suit, gives judgment for her and assesses damages at three lakhs of rupees.

Change one fact: the property is in Calcutta. Then the Supreme Court's jurisdiction is not open to doubt at all. Everything contentious in the case comes from the property and the parties being in the mofussil, where the Company's own courts sat under the Company's own regulations.

Change another: the defendants are not the Company's servants. The Supreme Court's jurisdiction over persons in the mofussil rested on their being in the Company's service, and it was that link, and how far it reached, that the Regulating Act had left unclear.

Change a third: the case is heard after 1781. Then the Settlement Act's protection of provincial judges applies: no action lies in the Supreme Court against a judicial officer of a country court in respect of a judgment or order of his court, nor against any person for an act done in pursuance of such an order. Whether the bar reaches these facts depends on how the law officers' acts are characterised, which the chapter has already discussed; what is certain is that the inheritance itself would be decided by Muslim law, as that Act directs.

That is the point of the case in one line. The Patna case is not about whether the Council decided the inheritance rightly; it is about whether a court in Calcutta could sit in judgment on the Company's officers for the way they had decided it in Patna, and Parliament's answer in 1781 was to protect them.

What beginners get wrong

"The Supreme Court interfered with a decision of a Company court." It gave damages against officials for acts done outside the authority they were given. The Kazi and Muftis were told to take an inventory and instead decided an inheritance, and the Council acted on it. Compare [Gora Chand's Case: Dutt v. Hosea, 1779], where the act complained of really was a judicial act and the Court's stated position protected it.

"The damages were against the Kazi and Muftis." The suit was against the members of the Provincial Council and the law officers, and the three lakhs was the award in that suit. Some law officers were sued separately afterwards and Rs 15,000 was given.

"Hastings supported the widow." Hastings thought the deeds probably were forged. What he criticised was the irregularity of the officers' proceedings, and that criticism is worth citing precisely because it comes from a man opposed to the Supreme Court.

Limits and criticism

The case is the strongest evidence in the whole syllabus that something outside the Company was needed, and it is also the clearest illustration of why the remedy chosen did not work.

Three lakhs of rupees was a very large sum, awarded against individual members of a Provincial Council for the acts of officers under them. Whatever the merits, an award on that scale, in a court sitting hundreds of miles away, applying English law and English notions of procedure to a Muslim inheritance at Patna, was certain to be experienced by the Company's servants as an attack, and it was. The Patna case, more than any other, is what turned the Council's irritation into a determination to be rid of the Court's jurisdiction, and the Cossijurah crisis followed within a year.

The right conclusion is the uncomfortable one. The Court was substantially right about what had been done to Nadirah Begum, and the remedy it gave made the constitutional crisis worse rather than better. Only Parliament could resolve that, and in 1781 it did, by taking the provincial courts and their officers out of the Supreme Court's reach altogether.

Quick revision

• Shahbaz Beg Khan died at Patna 10 December 1776; his widow Nadirah Begum in possession.
• Nephew Bahadur Beg petitioned the Patna Provincial Council within three weeks, claiming as adopted son.
• The Council ordered the Kazi and Muftis to take an inventory and report. They proceeded ex parte, sealed the house, drove the widow out, and a guard was set on her at a shrine for about three months.
• Their report decided a question they were never asked: the deeds were forged, three quarters to Bahadur Beg, one quarter to the widow, excluding the altamgha. It rested on statements not on oath and on notes answered verbally.
• The widow sued in the Supreme Court; judgment for her; damages three lakhs of rupees; Rs 15,000 afterwards against law officers sued separately.
• Warren Hastings himself criticised the irregularity, in a letter to the Patna Council of 12 January 1778.

Test yourself

1. What were the Kazi and Muftis actually directed to do, and what did they do? They were directed to take an inventory of the property, secure it under seal until decision and division, and report to the Council. They instead held an inquiry into the disputed right of inheritance and reported that the widow's will and deed of gift were forged and that three quarters of the estate should go to the claimant.

2. On what principle did the Supreme Court assess damages, and how much were they? On the principle that she had been deprived of property in her possession, to which she was not shown not to be entitled, by an act corrupt and oppressive in its essence and executed in a needlessly brutal and offensive way. The damages were three lakhs of rupees, with a further Rs 15,000 in separate suits against law officers.

3. Give the evidence, independent of the Supreme Court, that the Patna Council failed in its duty. Warren Hastings, who had no leaning towards the Supreme Court, wrote to the Patna Council on 12 January 1778 taking notice of great irregularity in the proceedings of the law officers, whose business had been solely to take an inventory.

4. Was it ever decided whether the widow's deeds were genuine? No. Hastings thought they probably were forged; Impey thought the whole proceeding was a plunder of a helpless widow effected by a false accusation of forgery; Stephen declined to give an opinion. The objection to the Council's conduct is that it produced a result without any proceeding in the nature of a trial.

5. Why did this case make the constitutional crisis worse? Because a very large award of damages against the members of a Provincial Council, made by a distant English court applying English notions to a Muslim inheritance, convinced the Company's servants that the Court's jurisdiction had to be resisted, and the Cossijurah crisis followed within a year.

The proclamation. An order was issued to all landholders informing them that they were subject to the Court's jurisdiction only if they were servants of the Company or had subjected themselves by consent, and that if they did not fall within either class they were to pay no attention to the process of the Court. Impey complained that its terms were intentionally disrespectful to the Court and to the King, who was called "the English King" without any title, the object being to avoid conveying the notion that the King of England had any authority as King in Bengal.

Force, first round. The Zamindar, having a special direction to the same effect, ignored the Court's further process. His people beat off the sheriff and his officers when they tried to take him under a capias, a writ commanding the sheriff to take the defendant's body.

Force, second round. A writ of sequestration issued, to seize his property and so compel an appearance. The sheriff collected a force of fifty or sixty sailors and others who marched armed from Calcutta to Cossijurah, and, it was alleged by the Zamindar, executed it with great violence and with acts of disrespect towards his idol and his zenana.

Force, third round. The Governor-General and Council ordered Colonel Ahmuty, commanding troops at Midnapore, to march a force of sepoys against the sheriff's party and arrest them. He did so. Process against the officer commanding the troops, as for a contempt, was also prevented by military force.

The suit against the Government. The plaintiff then brought actions against Hastings and the other members of Council individually. They first entered appearances, but on seeing the terms of the plaint, which showed that they were sued for acts done in their public capacity, all except Barwell caused their counsel to declare in court that they withdrew their appearances and would not submit to any process the Court might issue against them.

The only casualty. The one person who actually suffered was Naylor, the Zamindar's attorney, required to answer interrogatories about his part in the matter and committed for contempt for refusing.

The correction: what the case was NOT about

Most textbooks say that the Council resisted because the Supreme Court had claimed jurisdiction over zamindars as such, as revenue collectors. Stephen, who read the record, says in terms that this is entirely incorrect.

The Court never held that zamindars as such were in the Company's employment and so subject to its jurisdiction. It uniformly held the reverse.

The evidence he gives is the Company's own. Bogle, reporting to the Council on 13 November 1778, a year before the Cossijurah suit, wrote that since the establishment of the Supreme Court no question had been agitated before it that could bring the rights of the zamindars into discussion; that many suits had indeed been commenced against them, but that they had always pleaded to the jurisdiction, and except where the cause happened to be managed by an unskilful attorney, their plea had always been sustained. They had been considered as landholders possessed of extensive territories paying a land tax to government, and this exception of the zamindars from the jurisdiction had done more than anything else to limit the embarrassment caused by the introduction of so new an institution.

A plea to the jurisdiction is a defence that the court has no authority to try the case at all, taken before any defence on the merits. Bogle's point is that zamindars had been making that plea for five years and winning.

So the dispute at Cossijurah was not about a rule of law the Court had laid down. It was about a single affidavit in a single case, asserting that this particular zamindar was employed in the collection of the revenues. The proper answer to a false affidavit is to appear and plead to the jurisdiction, exactly as other zamindars had been doing successfully. What the Advocate-General advised, and what the Council ordered, was that he should not appear at all.

Why the Council really acted

Stephen sets out the reasons, and they are more honest than the legal argument.

The Council hated the Court, and had reasons that were natural and intelligible. It represented an authority the Company's servants practically repudiated. It represented English law, which they disliked both for its defects, then great, and for its merits. They thought it a grievance, and it was one, that Bahadur Beg should be brought from Patna to Calcutta to plead in a purely English court. They probably felt it a much greater grievance that the ijaradars and zamindars should be interfered with when, in order to pay their revenue punctually, they squeezed their ryots in ways an English lawyer would call oppressive.

And they were not sure they were right. Stephen's judgment on this is the sentence to quote. If they had been sure, they would have taken the straightforward legal course of getting a direct decision from the Court on the questions that concerned them, and testing it by appeal to the King in Council. They could easily have done so and had five years, from 1775 to 1780, in which to do it. Impey suggested it repeatedly. From that test they invariably shrank. Having the military force in their hands, and public feeling with them, they preferred to use that force rather than to appeal to the common superior of both Court and Council.

A worked example

Suppose you act for the Zamindar of Cossijurah in September 1779. What should you have advised?

1. Appear, and take a plea to the jurisdiction. The affidavit says your client is employed in the collection of the revenues; he says he is a landholder paying a land tax. That is a question of fact and it is the very question on which zamindars had been succeeding since 1775.
2. If the plea fails, defend on the merits, and if you lose, appeal to the King in Council, which lies from the Supreme Court.
3. Do not stay away. A defendant who ignores process invites a capias and then a sequestration, which is exactly what happened, and loses the only forum in which the jurisdictional point can be decided in his favour.

That advice was available, obvious, and not taken, because the Government preferred a confrontation to a decision. The result was armed men from Calcutta meeting sepoys from Midnapore in a district of Bengal, and a Governor-General declaring through counsel that he would not obey the King's court.

What beginners get wrong

"The Supreme Court claimed jurisdiction over all zamindars." It did not, and it consistently sustained their pleas to the jurisdiction. This is the error that the record contradicts most directly.

"The Court decided the Cossijurah case." There was no decision on the merits. The case is famous for what happened outside the courtroom.

"The Government had no legal remedy." It had one and refused to use it for five years: a decision on the jurisdictional question and an appeal to the King in Council.

"Hastings was arrested." Nobody in the Government was arrested. Section 17 forbade the arrest of their persons, and in any case they withdrew their appearances. The only person committed was Naylor, the Zamindar's attorney, for contempt in refusing to answer interrogatories.

Limits and criticism

The case is the crisis of Module I, and the right way to describe it is as a breakdown of the constitution rather than a dispute about the law.

Two authorities existed in Bengal, both deriving from the Crown, one a court and one a government, and there was no institution in India competent to decide between them. The Act had created that situation and had provided no machinery for resolving it. When the disagreement became sharp enough, the body with the soldiers won, and told the whole of Bengal outside Calcutta that the King's court could be ignored.

That is intolerable in any system, whichever side was right about section 14, and it is why Parliament had to intervene. The Settlement Act of 1781 did three things directly traceable to this case: it took the Governor-General and Council out of the Court's jurisdiction for acts done in their public capacity, it took revenue matters out of the Court altogether, and it indemnified the Governor-General, the Council, the Advocate-General and everybody acting under their orders for their resistance to the Court's process between 1 January 1779 and 1 January 1780, reciting that in the hostilities between Court and Council "many things have been done not justifiable by the strict rule of the law".

An Act of Parliament which has to indemnify a government for disobeying a court is the clearest possible admission that the system had failed.

Quick revision

• 13 August 1779: Kashinath Babu sues the Zamindar of Cossijurah in the Supreme Court on an affidavit that he was employed in the collection of the revenues (s.14).
• Advocate-General Sir John Day advises that the Zamindar should not appear or plead; a general proclamation tells landholders to ignore the Court's process unless they are the Company's servants or have consented.
• The Zamindar's people beat off the sheriff under a capias; a writ of sequestration issues; the sheriff marches with fifty or sixty armed men.
• The Council sends Colonel Ahmuty with sepoys, who arrest the sheriff's party.
• The plaintiff sues Hastings and the Council personally; all but Barwell withdraw their appearances and refuse to submit to process.
• Only Naylor, the Zamindar's attorney, suffers: committed for contempt.
• The Court never held that zamindars as such were subject to it: Bogle's report of 13 November 1778 records that their pleas to the jurisdiction had always been sustained.
• The Council never appealed to the King in Council, though five years and repeated suggestions were available.

Test yourself

1. What was the jurisdictional foundation of the suit, and why was it contestable? The affidavit filed on 13 August 1779 stating that the Zamindar was employed in the collection of the revenues, which brought him within section 14's class of persons employed by or in the service of the Company. It was contestable because a zamindar was ordinarily treated as a landholder paying a land tax, not as a servant, and pleas to the jurisdiction on that footing had regularly succeeded.

2. State the correction this case requires to the usual textbook account. That the Supreme Court had claimed jurisdiction over zamindars as such. It had not; it uniformly held the reverse, and Bogle's report to the Council of 13 November 1778 records that zamindars' pleas to the jurisdiction had always been sustained except where the cause was managed by an unskilful attorney.

3. What was the Council's real objection, on Stephen's account? Not a settled view that the Court was wrong in law, but dislike of a court representing an authority they repudiated and English law they distrusted, and unwillingness to have their revenue administration interfered with. Stephen's proof is that they never took the available legal course of obtaining a decision and appealing to the King in Council, though Impey repeatedly suggested it.

4. What happened when the plaintiff sued the members of Council personally? They entered appearances, and on seeing that they were sued for acts done in their public capacity all except Barwell had their counsel declare that they withdrew their appearances and would not submit to any process of the Court.

5. How did Parliament respond to what happened here? By the Settlement Act of 1781, which took the Governor-General and Council out of the Court's jurisdiction for public acts, excluded revenue matters, and indemnified the Governor-General, the Council, the Advocate-General and all acting under their orders for their resistance to the Court's process between 1 January 1779 and 1 January 1780, reciting that many things had been done not justifiable by the strict rule of the law.

The Court's stated position being more moderate than its reputation. By 1779, on the record of Touchet's Committee, the Court had held that the Company's courts were courts of justice, that their judges were not liable for judicial acts unless corrupt, that revenue debtors could be held to bail, and only that they could not be imprisoned without bail to secure a disputed sum. Dutt v. Hosea is the case in which that question was squarely raised, and the Council itself asked for it to be decided. And on the question everybody remembers, jurisdiction over zamindars, Bogle's own report of November 1778 records that their pleas to the jurisdiction had always been sustained.

The system with no umpire. Cossijurah is not a case about law at all. It is what happens when two authorities disagree and neither can be overruled. And the trial of Nandkumar is the same defect on the criminal side: a capital conviction, no appeal, and the only check the judges' own power to respite, which they held and did not exercise.

The Council's case, put at its highest

A good answer does not treat the Company's servants as villains, and there is a serious case for them.

The Court was staffed by men who had arrived from England and knew nothing of revenue administration, of the languages, or of the customs of the country, and it applied English process to people who, in the words of a Burdwan diwan quoted at the time, threatened others with habeas corpus and damages without any of them being able to say what a habeas corpus was, or what damages were, or what a writ or a summons was.

Its process was ruinous even to those who won: a talukdar might be ruined by the expense of pleading to the jurisdiction though he prevailed, and in one action in which Rs 400 was recovered the costs exceeded Rs 1,600.

And its interventions did fall on the revenue, which was the Company's whole business in Bengal and, at that date, the security for the Company's solvency.

The answer to all of that is Stephen's, and it is decisive: the way to correct a court that has exceeded its jurisdiction is to obtain a decision and appeal from it. That way was open for five years and was never taken.

The Court's case, put at its highest

Equally, an answer that treats Impey and his colleagues as oppressors has to explain three facts.

They sustained zamindars' pleas to the jurisdiction, consistently, and thereby kept most of Bengal outside their reach.

They held that the Company's own courts were courts and that their judges were immune for judicial acts unless corrupt, which is the opposite of an imperial claim.

And every abuse they restrained was a real abuse, admitted in the Company's own papers: the attorney who withheld the proceedings, the councillor who sat on the board that imprisoned his creditor, the officers who decided an inheritance they had never been asked about.

The criticism that survives is narrower, and a student should make it precisely. The Court's remedies were English remedies in an Indian setting, and its costs and its process were ruinous. It did not adapt, and it had almost no power to adapt, because its process came from a Charter it could not alter.

A worked example: answering the standard question

"Discuss the working of the Supreme Court at Calcutta with reference to decided cases."

A good answer has five moves.

1. Establish the Court: section 13 of the Regulating Act, the Charter of 26 March 1774, four judges, five jurisdictions, King's Bench powers, appeal to the King in Council.
2. State the three defects above, in one sentence each.
3. Take the cases in groups, not in a list: the three habeas corpus and damages cases showing real abuse restrained; Dutt v. Hosea and the zamindar question showing the Court's actual position; Nandkumar and Cossijurah showing the absence of any umpire.
4. Put both sides, using the Company's own documents on each: Hastings's letter of 12 January 1778 against the Patna Council; the Company's attorney's letter of 31 August 1777 in Sarup Chand; Bogle's report of 13 November 1778 on the zamindars; and against the Court, the costs figures and the Burdwan diwan's complaint.
5. Conclude with the remedy Parliament chose, which is the Settlement Act of 1781, and say what it changed. That connects topic 1.2 to topic 1.3 and is what separates a first-class answer from a competent one.

Distinctions worth having straight

What beginners get wrong

"The Supreme Court was a failure." It was a failure in its first six years, on its founders' own terms, and Cowell records that afterwards, with diminished powers, it won its way to greater authority and respect among Europeans and Indians alike than any other tribunal that has ever existed in India. Say both.

"The judges were to blame." The judges decided cases as they arose under a statute that did not tell them what law to apply or over whom. The blame that sticks to Impey personally is a different matter: accepting from the Council, in 1780, the office of Judge of the Sadar Diwani Adalat with a salary held at their pleasure.

"The Council were to blame." They were, for using force instead of an appeal. They were not for objecting to a jurisdiction whose limits nobody had defined.

Quick revision

• Three defects of the Regulating Act: no rule as to the applicable law; no definition of who was subject; no authority in India competent to decide between the Court and the Government.
• Group one, real abuse restrained: Kamaluddin, Sarup Chand, the Patna case.
• Group two, the Court's actual position: Dutt v. Hosea; and Bogle's report that zamindars' pleas to the jurisdiction were always sustained.
• Group three, no umpire: Nandkumar (no appeal from a capital conviction) and Cossijurah (settled by sepoys).
• For the Council: ignorance of the country, ruinous costs, damage to the revenue. Against them: they never appealed to the King in Council in five years.
• For the Court: every abuse it restrained was admitted in the Company's own papers. Against it: English remedies, English costs, no power to adapt.
• The remedy: the Settlement Act of 1781.

Test yourself

1. State the three defects of the Regulating Act that the working of the Supreme Court exposed. That it did not say what law the Court was to apply; that it did not define who was subject to its jurisdiction, leaving the questions of who was a British subject and whether the Company's acquisitions amounted to sovereignty to be decided case by case; and that it provided no authority in India competent to decide between the Court and the Government.

2. Group the seven proceedings by what each shows. Kamaluddin, Sarup Chand and the Patna case show real abuse restrained; Dutt v. Hosea shows the Court's moderate stated position on the status of the Company's courts and their judges; Nandkumar and Cossijurah show the absence of any umpire, on the criminal side and on the civil side respectively; and the trial of Radhacharan Mitra is used in the debate about whether English criminal law had previously been applied to Indians at Calcutta.

3. What is the single strongest answer to the Council's complaint of usurpation? That the Court's decisions were appealable to the King in Council, that the Council had five years in which to obtain a decision and appeal, that Impey repeatedly suggested it, and that they never did it.

4. What is the single strongest criticism of the Court that survives? That its remedies, its process and its costs were English and ruinous, and unsuited to the country; a talukdar might be ruined by the expense of successfully pleading to the jurisdiction, and in one case costs of over Rs 1,600 were incurred to recover Rs 400.

5. Why is it wrong to say simply that the Supreme Court failed? Because it failed only in its first phase, under a statute that made failure very likely. After 1781, with reduced jurisdiction, it acquired greater authority and respect among Europeans and Indians than any earlier tribunal in India.

Three: the provincial judges are protected. The Act declared that no action should lie in the Supreme Court against any judicial officer in the country courts in respect of any judgment or order of his court, nor against any person for any act done in pursuance of such an order, it being considered "reasonable to render the Provincial Magistrates, as well Native as British subjects, more safe in the execution of their office". This is the answer to Dutt v. Hosea and, indirectly, to the Patna case.

Four: personal law is prescribed. Where either party was a Muslim or a Hindu, matters of inheritance and succession to lands, rents and goods, and matters of contract and dealing between party and party, were to be determined by Muslim law for Muslims and Hindu law for Hindus; and where only one of the parties was a Muslim or a Hindu, by the laws and usages of the defendant. In addition, the rights and authorities of fathers and masters of families, as they might have been exercised under Hindu or Muslim law, were preserved to them, and it was provided that no act done in consequence of the rule and law of caste, respecting the members of those families only, should be adjudged a crime "although the same may not be held justifiable by the laws of England". The Supreme Court might also frame process and make rules to accommodate suits against Indians to their religion and manners, subject to the royal approbation, correction or refusal.

This is the answer to the trial of Nandkumar, and it is the first time an Act of Parliament tells a court in India what law to apply to Indians. Note the choice-of-law rule in the second half: where the parties are of different religions, the defendant's law governs. That is a real conflict-of-laws rule, and it is the ancestor of much later Indian doctrine.

Five: the Company's own courts are recognised and given a legislature. This, says Cowell, is perhaps the most important part of the Act and the part that most completely reversed the policy of 1773. Parliament recognised the civil and criminal provincial courts as existing independently of the Supreme Court; recognised the Governor-General and Council, or a committee of them, as the chief appellate court of the country; and vested the Council with power to frame regulations for those provincial courts independently of the Supreme Court.

Section 21 enacted that the Governor-General and Council should lawfully hold all such pleas and appeals from the country or provincial courts in civil causes as it had hitherto held, with the same powers, that it should be deemed in law a Court of Record, and that its judgments should be final and conclusive except upon appeal to His Majesty in civil suits of the value of £5,000 and upwards.

Section 23 enacted that the Governor-General and Council should have power from time to time to frame regulations for the provincial courts and councils, with a proviso that His Majesty in Council might disallow or amend them within two years.

Six: the past is indemnified. With regard to the hostilities between Court and Council, in which, said the Act, "many things have been done not justifiable by the strict rule of the law", the Governor-General and Council, the Advocate-General and all persons acting under their orders were indemnified, discharged and saved harmless from any action, suit or prosecution on account of their disobedience and resistance to the execution of the Court's orders from 1 January 1779 to 1 January 1780.

A worked example

Take each of the seven proceedings and ask what would have happened after 1781.

Kamaluddin and Sarup Chand: revenue matters, now outside the Court. Their remedy is under section 22, before the Governor-General in Council.

Dutt v. Hosea: an action against a judicial officer of a country court for a judgment of his court. Barred expressly.

The Patna case: harder, and the answer is instructive. The acts complained of were done by law officers of a Provincial Council in a matter of inheritance. If characterised as acts of a country court in respect of its orders, the action is barred; if characterised as acts done outside any authority, the bar may not apply. What is certain is that the underlying dispute would now be decided by Muslim law, as the Act directs, and not by any English rule.

Nandkumar: the trial was criminal, and the Act's personal-law provisions do not make forgery non-criminal. What the Act does is protect acts done under the rule and law of caste, and give the Court power to adapt its process. A capital trial of a Brahmin on an English statute would still have been possible, and that is the limit of what 1781 achieved.

Cossijurah: the Government could not now be sued for public acts, and the Zamindar, if the suit were revenue-related, would be outside the Court altogether. The crisis could not recur in the same form.

Distinctions worth having straight

What beginners get wrong

"The Settlement Act abolished the Supreme Court." It did not. The Court continued, with reduced jurisdiction, and Cowell records that it afterwards won greater authority and respect than any earlier tribunal in India.

"It settled the boundary between the two systems." It did not, and the next chapter is about what it left unsettled. It removed the largest sources of friction without ever saying what the relation between the two systems was.

"The £5,000 appeal went to the Privy Council." It went to His Majesty in Council. The Judicial Committee of the Privy Council was created in 1833, and Module II follows that.

"The indemnity means Parliament approved what the Council did." The Act says the opposite in the same breath: it indemnifies because "many things have been done not justifiable by the strict rule of the law". An indemnity is granted for acts that were unlawful; if they had been lawful none would be needed.

Limits and criticism

Two criticisms, and the second is the more important.

It was a settlement in favour of the Company, and it is fair to say so. The Government was made unsuable for public acts, the revenue was removed from independent scrutiny, the Company's own courts and judges were protected, and the Company's officers were indemnified for having disobeyed a court. Every contested point was resolved in the Company's favour, and the substitute remedies were remedies within the Company's own system.

And it repeated the Regulating Act's central failure. Cowell's verdict is exact and worth quoting in substance: in the Act of 1781, as in that of 1773, there is no plain statement of the relation in which the Indian territories stood to the British Crown, nor whether any Indian natives were to be comprehended under the term "subjects", nor whether the provincial courts were to have a concurrent jurisdiction with the Supreme Court or an exclusive one, nor, if the latter, what its limits were.

So the great questions were left open a second time. What 1781 achieved was the removal of the occasions of conflict, not the resolution of it, and the two systems went on side by side for another eighty years until the Indian High Courts Act 1861 merged them. That is Module II.

Quick revision

• 21 Geo. III c. 70, the Act of Settlement, 1781.
• Governor-General and Council exempt for acts in their public capacity.
• Revenue excluded from the Supreme Court; s.22 gives the Council power to punish offences, abuses and extortions in collection, short of death, maiming or perpetual imprisonment.
• No action in the Supreme Court against a judicial officer of a country court for his judgments or orders, nor against a person acting in pursuance of them.
• Hindu and Muslim law in inheritance and succession and in contract and dealing; where the parties differ, the defendant's law. Acts under the rule and law of caste not to be crimes though not justifiable by English law.
• s.21: the Governor-General and Council recognised as the chief appellate court; the Sadar Diwani Adalat a court of record; final except on appeal to His Majesty in civil suits of £5,000 and upwards (and see s.71).
• s.23: power to frame regulations for the provincial courts without registration in the Supreme Court; the Crown may disallow within two years.
• Indemnity for resistance to the Court's process from 1 January 1779 to 1 January 1780, the Act reciting that many things had been done not justifiable by the strict rule of the law.

Test yourself

1. Name four things the Settlement Act took out of the Supreme Court's reach. Acts of the Governor-General and Council done in their public capacity; matters concerning the revenue and the officers employed in its collection; actions against judicial officers of the country courts in respect of their judgments and orders; and, by prescribing Hindu and Muslim law, the application of English law to inheritance, succession and contract between Indians.

2. State the choice-of-law rule the Act laid down. That in matters of inheritance and succession and of contract and dealing between party and party, Muslims were to be governed by Muslim law and Hindus by Hindu law; and where only one of the parties was a Muslim or a Hindu, by the laws and usages of the defendant.

3. What did section 21 do for the Sadar Diwani Adalat? It recognised the Governor-General and Council, or a committee of them, as determining appeals from the country and provincial courts, declared that body a court of record, and made its judgments final and conclusive except on appeal to His Majesty in civil suits of £5,000 and upwards.

4. Why did section 23 matter so much in practice? Because under section 36 of the Regulating Act a regulation was void until registered in the Supreme Court, and the Regulations of 1780 had never been registered. Section 23 allowed the Governor-General in Council to frame regulations for the provincial courts without reference to the Supreme Court, subject only to disallowance by the Crown within two years.

5. What does the indemnity clause tell you about Parliament's view of the Council's conduct? That it was unlawful. The Act indemnifies precisely because, in its own words, many things had been done that were not justifiable by the strict rule of the law; an indemnity is unnecessary for lawful acts.

6. What did the Act fail to settle? The same questions the Regulating Act had left open: the relation of the Indian territories to the Crown, whether Indians were comprehended in the word "subjects", and whether the provincial courts had a jurisdiction concurrent with the Supreme Court's or exclusive of it, and if exclusive, within what limits.

The Sadar Diwani Adalat itself was finally established by Act of Parliament in 1781, being constituted a court of record by 21 Geo. III c. 70, section 71. It had not been established by royal charter, so it remained one of the Company's courts, but it was thereafter distinguished from the ordinary Company courts because it traced its establishment to the recognition and sanction of Parliament.

What was left standing: the dual system

After 1781 India had two complete systems of courts in the same territory, and it is worth setting them out side by side because Module II is the story of how they were merged.

Two systems, two laws, two appellate ladders, and no rule saying which prevailed where they met. That is the dual judicial system, and MU's Module II names it in its first topic.

The struggle that started immediately

Do not imagine that separating revenue from justice ended the quarrelling. It moved it.

Within a few months of the separation of functions in 1780, the Governor-General recorded in a minute that "the institution of the new Courts of Dewanny Adawlut has already given occasion to very troublesome and alarming competition between them and the provincial Councils".

The rival claims of the revenue authorities and the judicial officers to exercise jurisdiction were destined, in Cowell's phrase, to a long antagonism and to varying success. It is a smaller conflict than the civil war between the Supreme Court and the Supreme Council, and it lasted much longer: the jurisdictions were united again by Cornwallis in 1787, separated again in 1793, united a third time in 1831, and the question was still being fought over in 1859. The next four chapters are the first two rounds of it.

A worked example

A dispute in 1785 between a zamindar of Burdwan and his tenant about rent.

• Which court? Rent is a revenue matter, reserved to the Provincial Council or the Collector. Not the Diwani Adalat, and certainly not the Supreme Court, which lost revenue matters in 1781.
• Change it to a dispute about the inheritance of the zamindari. Now it is the Diwani Adalat of the district, applying Hindu law if the parties are Hindus, with appeal to the Sadar Diwani Adalat.
• Change it again: the zamindar sues an English indigo planter living in Calcutta for trespass. Now the defendant is a British subject in a Presidency Town, and the Supreme Court has jurisdiction, applying English law to a trespass.
• And if the planter counterclaims for a debt against the zamindar? He must establish that the zamindar is within section 14, and if the zamindar pleads to the jurisdiction, the plea will ordinarily be sustained.

One district, one pair of litigants, and the forum and the law both change with the subject matter and the identity of the parties. A student who can work that example can answer almost anything set on the dual system.

What beginners get wrong

"After 1781 there was peace." Between the Supreme Court and the Council, largely yes. Between the civil courts and the revenue authorities, the fight had only just begun, and it ran for eighty years.

"The Sadar Diwani Adalat was a royal court after 1781." It was not established by royal charter and remained a Company court. What Parliament did was recognise it and constitute it a court of record.

"Impey was dismissed for taking the Sadar Diwani Adalat office." He was impeached and acquitted. The Directors ordered the arrangement to be undone in 1782 and the Governor-General in Council resumed the superintendence of the Court.

"The dual system meant Indians had no access to the Supreme Court." They had access where the Court had jurisdiction, which after 1781 mainly meant residents of Calcutta and persons who submitted to it. What they did not have was any choice of law: the Act of 1781 told the Court to apply their own law in the matters it named.

Limits and criticism

The settlement of 1781 is usually described as a success, and by the standard of stopping a constitutional crisis it was. Judged by any other standard it postponed the problem for eighty years.

A country with two systems of courts, two systems of law, and no rule of priority between them will produce conflicting decisions about the same land, the same debt and the same family, and it did. That is the subject of the first chapters of Module II, and it is why the Law Commissioners eventually recommended amalgamation and Parliament carried it out in 1861.

The deeper point is the one Cowell makes about both Acts. Parliament twice legislated about courts in India without saying what the relation of the Indian territories to the Crown was, or who among the inhabitants were subjects. Institutions can be built on a silence like that, but they cannot be reconciled to each other, because the question of which prevails is the question that was never answered.

Quick revision

• 1780: the six Provincial Councils confined to revenue; eighteen district Diwani Adalats created, independent of them, for inheritance, real property, mercantile and personal property disputes; revenue and rent reserved to the Councils and later the Collectors; appeal to the Sadar Diwani Adalat.
• The Regulations for those courts were drawn by Sir Elijah Impey; the Chief Justice was made Judge of the Sadar Diwani Adalat in 1780, holding the office and salary at the Council's pleasure; the Directors ordered it undone in 1782.
• 1781: the Sadar Diwani Adalat constituted a court of record by 21 Geo. III c. 70, s.71.
• What remained: the dual judicial system, King's courts and English law in the Presidency Towns, Company courts and Hindu, Muslim and Regulation law in the mofussil, with separate appeals.
• The new quarrel: civil courts against revenue authorities, beginning within months and lasting to 1859.

Test yourself

1. What courts did the reorganisation of 1780 create, and how many? Eighteen district Courts of Diwani Adalat, independent of the six Provincial Councils, with jurisdiction over inheritance to zamindaries and talukdaries and other real property, mercantile disputes and personal property, revenue and rent being reserved to the Councils. The ultimate appeal lay to the Sadar Diwani Adalat.

2. What office did Sir Elijah Impey accept in 1780, and on what terms? Judge of the Sadar Diwani Adalat, vested with all its powers, the Governor-General and Council ceasing to belong to it, but with the express stipulation that he should hold the office and its salary at their pleasure. He drew up the regulations for the civil courts, which were incorporated in the revised Code of 1781. The Directors ordered the arrangement undone in 1782.

3. Describe the dual judicial system in four points. Two sets of courts in the same territory: King's courts created by charter in the Presidency Towns with English judges applying English law, and Company courts in the mofussil staffed by the Company's servants applying Hindu and Muslim law and the Regulations; separate appellate ladders, to the King in Council and to His Majesty above £5,000 respectively; and no rule of priority where the two met.

4. What new conflict began in 1780, and how long did it last? The competition between the new civil courts and the revenue authorities, which the Governor-General noticed within months of the separation. It ran through the reunion of the jurisdictions by Cornwallis in 1787, the second separation in 1793, the third reunion in 1831, and was still alive when Act X of 1859 was passed.

It resumed the criminal side. Cornwallis resolved in Council to resume the superintendence of the administration of criminal justice throughout the provinces, and after a few years removed the Sadar Nizamat Adalat to Calcutta, from Murshidabad where Warren Hastings had transferred it.

And a revised code was published in the same year, adapted to the change of system.

Why he did it

The reason given at the time is the one to state, because it is an argument about the people rather than about administrative tidiness: the object of reverting to the system that had been discontinued in 1780 was to accustom the people to look to one master.

Behind that is a practical judgment. After seven years' experience it was considered impossible to draw a line between the revenue and the judicial departments in such a way as to prevent their clashing. The regulations of 1780 had tried, and constant confusion had been the result. Every case that touched land touched revenue, and a rule that sent revenue one way and property the other produced two courts fighting over the same dispute.

Notice also what Cornwallis was doing in terms of this book's story: he was reviving the institutions of Warren Hastings's plan of 1772, before the changes made by the Council of 1775 and the separation of 1780. Cowell says so in terms. Cornwallis's policy in 1787 was to carry out Hastings's original intentions.

The one safeguard he kept

Although the functions of civil justice and of revenue collection were re-united in the person of the Collector, the courts over which he presided were kept distinct.

That is a real distinction and a student should notice it. The same man sat as judge of the Diwani Adalat and as judge of the Mal Adalat, but they were two courts with two jurisdictions, two records and two appellate routes: the Diwani Adalat to the Sadar Diwani Adalat, the Mal Adalat to the Board of Revenue. It is the difference between fusing two offices and fusing two courts, and Cornwallis fused only the first.

Whether that safeguard was worth anything is exactly what he decided six years later that it was not.

A worked example

Ramnath, a zamindar of a Bengal district, has three grievances in 1789. Follow each.

One. The Collector has assessed his revenue too high. That is a revenue case: Mal Adalat, before the Collector. Appeal to the Board of Revenue, then to the Governor-General in Council in the revenue department. Notice that the officer who made the assessment is the judge of the complaint about it.

Two. His brother claims a share of the zamindari by inheritance. That is a civil case: Diwani Adalat, before the same man in his other capacity, applying Hindu law. Appeal to the Sadar Diwani Adalat.

Three. His tenant has been beaten by the Collector's peons. Criminal: the Faujdari Adalat, under the criminal system Cornwallis had just resumed supervising, with the Sadar Nizamat Adalat above it.

Ramnath's first grievance is decided by the person he is complaining about. That is the objection Cornwallis himself would state, in his own words, in 1793.

Distinctions worth having straight

What beginners get wrong

"Cornwallis separated the judiciary from the executive." He did, in 1793. In 1787 he did the exact opposite, and a student who gives the 1793 answer to a question about 1787 has the sequence backwards. The right sentence is: Cornwallis united the two functions in 1787 and separated them in 1793, having found by experience that union did not work.

"The 1787 plan was Cornwallis's own idea." It was resolved in obedience to the Court of Directors, and its policy was to revive Warren Hastings's scheme of 1772.

"All the district courts were given to the Collectors." All except those in the cities of Patna, Murshidabad and Dacca.

"The Mal Adalat was part of the Diwani Adalat." Two distinct courts, with distinct jurisdictions and distinct appeals, presided over by the same officer.

Limits and criticism

The plan is defensible on its own premises and it failed for the reason its critics predicted.

It is defensible because the alternative had produced "very troublesome and alarming competition" between the civil courts and the Provincial Councils within months of 1780, and because the Directors' instruction to make the people look to one master answered a genuine complaint: a cultivator who had to know which of two English courts to approach, on a distinction between rent and property that he had never heard of, was worse off than one who went to the Collector.

It failed because the Collector's two roles were not merely different but opposed. The revenue officer's duty is to collect the maximum lawfully due; the judge's duty in a suit about that collection is to decide impartially between the government and the subject. One man cannot discharge both, and Cornwallis said so himself in 1793 in the words the next chapters quote: it is necessary to arm revenue officers with power to enforce their demands, but to prevent the abuse of that power there should be courts of justice ready to punish oppression and exaction.

Six years was how long it took to find that out, and the finding is the whole significance of the plan of 1787.

Quick revision

• Cornwallis arrived as Governor-General in 1786.
• Pitt's India Act 1784 (24 Geo. III c. 25) had directed inquiry into grievances; the Directors' instruction was to establish permanent rules for revenue and for "the administration of justice founded on the ancient laws and local usages of the country".
• 1787: the office of judge of the mofussil courts to be held by the officer in charge of the revenue, except at Patna, Murshidabad and Dacca. The Diwani Adalats put under the Collectors.
• Revenue cases to the Collector as a Mal Adalat; appeal to the Board of Revenue, then the Governor-General in Council.
• Criminal justice: superintendence resumed, and the Sadar Nizamat Adalat afterwards moved to Calcutta.
• Object: that the people should look to one master. Policy: to revive Hastings's plan of 1772.
• The one safeguard: the two courts were kept distinct, though the judge was the same man.

Test yourself

1. What did the plan of 1787 do, in one sentence? It re-united civil justice with revenue collection by making the Collector the judge of the district civil court as well as of a new revenue court, the Mal Adalat, in every district except Patna, Murshidabad and Dacca.

2. What was the stated object, and what was the practical reason? The stated object was that the people should look to one master. The practical reason was that after seven years' experience it was thought impossible to draw a line between revenue and judicial business without constant clashing, and the separation of 1780 had produced exactly that.

3. What was Cornwallis instructed by Parliament and the Directors to achieve? Permanent rules for the settlement and collection of the revenue, and for the administration of justice founded on the ancient laws and local usages of the country.

4. Name the safeguard Cornwallis retained in 1787 and say why it was not enough. He kept the Diwani Adalat and the Mal Adalat distinct as courts, with separate jurisdictions and appeals, though the same officer presided over both. It was not enough because the two roles are opposed: the officer who must enforce a revenue demand cannot impartially decide a complaint about that demand.

5. Why is it a serious mistake to say Cornwallis separated the executive from the judiciary in 1787? Because he united them in 1787 and separated them in 1793. Getting the order wrong turns the entire point of topic 1.4, which is that Cornwallis tried both arrangements and rejected the first on experience, into its opposite.

In 1781 the faujdars and thanadars were abolished, and the judges of the civil courts were made magistrates, with power to apprehend offenders and bring them to trial, forwarding them to the daroga of the nearest criminal court, the power of punishment still resting with the Nawab's courts. Later the civil judges were given power to decide slight offences and, under restrictions, to inflict corporal punishment and impose fines.

So by 1790 criminal justice had an English magistracy at the bottom, Muslim courts in the middle, and a Nawab's officer at the top, and nobody thought it worked.

What Cornwallis decided, and the sentence he decided it in

Cornwallis's reason is recorded in a single sentence and it is the one to quote: the future control of so important a branch of government "ought not to be left to the sole discretion of any native, or indeed of any single person whomsoever."

Read both halves. The first half is a judgment about Indians holding high office, and a student should describe it as what it is rather than soften it. The second half is a general proposition about power that no lawyer would quarrel with: the control of criminal justice should not rest with any single person at all.

What the regulations of 3 December 1790 did

They created Courts of Circuit. Courts of Circuit were established under the superintendence of English judges, assisted by Indians versed in Muslim law, to try in the first instance persons charged with crimes or misdemeanours. A circuit court is one whose judges travel from station to station to try the cases that have accumulated there, and its business includes gaol delivery, the clearing of the gaol by trying everybody held in it.

They brought the Nizamat Adalat back to Calcutta, and enabled the Governor-General and the members of the Supreme Council to sit in it and superintend the administration of criminal justice throughout the provinces.

They transferred the Nazim's powers. The powers of the Nawab Nazim passed to the Governor-General in Council. That is the constitutional heart of the plan: the last substantial function that the dual government of 1765 had left with the Nawab was taken away, and the fiction that the Company governed only the Diwani ended.

The regulations of 1790 were, with amendments and alterations, re-enacted in 1793, and it is in that form that they became part of the Cornwallis Code. That is why some books date the criminal reforms to 1790 and others to 1793: both are right, and an answer that says the 1790 regulations were re-enacted in 1793 is right in a way that satisfies either question.

What the Courts of Circuit looked like in practice

There were four to begin with, increased as provinces were added. Each was composed of the same judges who sat in the provincial Civil Court of Appeal, together with the kazi and mufti attached to that court.

The circuit duties, including gaol deliveries at the principal stations, were ordinarily performed by the second, third and fourth judges in regular succession, the first judge remaining at the principal station unless otherwise directed.

They lasted until 1829, when Regulation I of that year abolished them because they had failed to give prompt justice, and Bengal was divided into twenty divisions under Commissioners of Revenue and Circuit who took over their powers along with those of the Board of Revenue.

A worked example

A dacoity is committed in a Bengal district in 1792.

1. The magistrate, who is the judge of the civil court of the district under the arrangement of 1781, apprehends the accused and commits him.
2. The case is tried in the first instance by the Court of Circuit, presided over by English judges of the provincial Court of Appeal, assisted by the kazi and mufti, applying Muslim criminal law.
3. A capital sentence goes for confirmation to the Sadar Nizamat Adalat at Calcutta, now composed of the Governor-General and the members of the Supreme Council.
4. Before 1790, step two would have been a Faujdari Adalat under Muslim officers and step three would have been at Murshidabad under the Nawab's superintendence.

Two changes, and both are about who controls, not about what law is applied. The law tried remained Muslim criminal law, with reforms, until the Indian Penal Code was brought into force in 1862.

Distinctions worth having straight

What beginners get wrong

"Cornwallis abolished Muslim criminal law in 1790." He did not. He took the control of criminal justice from the Nawab and gave the trials to English judges; the substantive law tried remained Muslim criminal law, reformed in stages over the following decades and replaced only by the Indian Penal Code.

"The Courts of Circuit were appellate courts." They tried cases in the first instance, on circuit, including gaol delivery. The appellate and confirming body was the Sadar Nizamat Adalat.

"The Sadar Nizamat Adalat was always at Calcutta." It was at Murshidabad from 1772, came to Calcutta on the abolition of the Committee of Revenue, went back to Murshidabad in 1775, and returned to Calcutta in 1790. Three moves, and the last one is Cornwallis's.

"1790 was about the police." The police was the background, and the plan is about courts. The police reform of this era is the network of thanadars and darogas that came with the Regulations of 1793.

Limits and criticism

The plan of 1790 is the most defensible of Cornwallis's three, and the criticism of it is a criticism of its premise rather than of its machinery.

Its machinery worked well enough to last thirty-nine years, and when the Courts of Circuit were abolished in 1829 the reason given was delay, not injustice.

Its premise was that criminal justice could not safely be left to an Indian officer. That premise is stated in the regulation itself, in the words quoted above, and it had a consequence that shaped the whole later system: from 1790 the trial of serious crime in the mofussil was in English hands, and the Indian law officers were reduced to expounding the law to a judge who decided. The office of kazi was itself abolished in 1809.

An answer that quotes the sentence and then notes both halves of its effect, the removal of a single person's discretion and the exclusion of Indians from the criminal bench, is doing exactly what a history paper asks.

Quick revision

• Cornwallis, 1790: the control of criminal justice "ought not to be left to the sole discretion of any native, or indeed of any single person whomsoever."
• Regulations of 3 December 1790: Courts of Circuit under English judges with Indians versed in Muslim law, trying in the first instance; the Governor-General and members of the Supreme Council to sit in the Nizamat Adalat, removed again to Calcutta.
• The powers of the Nawab Nazim passed to the Governor-General in Council.
• Four Courts of Circuit at first, made up of the judges of the provincial Civil Court of Appeal with the kazi and mufti; abolished in 1829 and replaced by twenty Commissioners of Revenue and Circuit.
• The regulations of 1790 were re-enacted with amendments in 1793.
• Background: Faujdari Adalats from 1772; the Nizamat Adalat moved to Murshidabad in 1775 under Muhammad Reza Khan; civil judges made magistrates in 1781.

Test yourself

1. What did the regulations of 3 December 1790 establish? Courts of Circuit under the superintendence of English judges, assisted by Indians versed in Muslim law, to try persons charged with crimes and misdemeanours in the first instance; and they enabled the Governor-General and the members of the Supreme Council to sit in the Nizamat Adalat, again removed to Calcutta, and to superintend criminal justice throughout the provinces.

2. What constitutional change did the plan of 1790 make? The powers of the Nawab Nazim passed to the Governor-General in Council, ending the last substantial function left with the Nawab by the dual government of 1765.

3. Who sat in a Court of Circuit? The same judges who sat in the provincial Civil Court of Appeal, with the kazi and the mufti attached to it. The circuit duties, including gaol delivery, were ordinarily done by the second, third and fourth judges in succession.

4. Did Cornwallis change the criminal law itself in 1790? No. He changed who controlled and who tried. The substantive law remained Muslim criminal law, reformed in stages, and it was replaced only by the Indian Penal Code.

5. Why do some books date the criminal reforms to 1793 rather than 1790? Because the regulations of 1790 were re-enacted, with amendments and alterations, in 1793 as part of the Cornwallis Code. Both dates are correct and an answer should say so.

The practical objections. The Mal Adalats' proceedings were irregular, summary and often ex parte, and the Collectors had to suspend their judicial functions whenever those interfered with their financial duties.

What must follow. Government "must divest itself of the power of infringing in its executive capacity the rights and privileges which, as exercising the legislative authority, it has conferred on the landholders". The revenue officers must be deprived of their judicial powers; all disputed financial claims of the public must be subject to courts superintended by judges who are not only wholly uninterested in the result but bound to decide impartially between the public and the proprietors, and between proprietors and tenants; and the Collectors must be divested of the power of deciding on their own acts and rendered amenable for them to the courts, collecting the public dues subject to a personal prosecution for every exaction exceeding the amount they are authorised to demand and for every deviation from the regulations.

Cowell's verdict on that preamble is that it lays down a sound and reasonable policy founded on strict justice. It is also, on any view, a remarkable thing for a colonial government to have said about itself in 1793.

The structure the regulations built

Revenue. The Mal Adalats were abolished and all causes hitherto tried by revenue officers were transferred to the civil courts. The Collectors were confined to their executive functions, collecting the revenue as officers subordinate to the Board of Revenue, their duties being described in section 8 of Regulation II of 1793.

Civil courts. By the next regulation, Government divested itself, in the words of its own preamble, "of the power of interfering in the administration of the laws and regulations in the first instance, reserving only as a Court of Appeal or Review the decision of certain cases in the last resort", and lodged its judicial authority in courts of justice.

The structure had three tiers:

• Zillah and city courts of Diwani Adalat, one for each district, under a covenanted English judge. A zillah is a district.
• Four Provincial Courts of Appeal, established by Regulation V of 1793 for Bengal, Bihar and Orissa, to hear appeals from the zillah and city courts.
• The Sadar Diwani Adalat at the Presidency, established by Regulation VI of 1793, consisting of the Governor-General and the members of the Supreme Council, receiving appeals from the provincial courts and councils and from the Board of Revenue.

Criminal courts. The regulations of 1790 were re-enacted with amendments. The authority of the Nawab Nazim was abolished, and the Governor-General and Council formed the Sadar Nizamat Adalat with general control over the criminal courts, with the four Courts of Circuit below it.

The Code. The whole body of existing regulations was formed into a regular code, printed with translations into the country languages, and, by a requirement Parliament afterwards made statutory in 1797, the ground of every regulation was to be prefixed to it and the courts were bound to regulate their decisions by the rules the regulations contained.

The one thing that spoiled the design, and its cure in 1801

Look again at the top of the structure. The Sadar Diwani Adalat consisted of the Governor-General and the members of the Supreme Council, and so did the Sadar Nizamat Adalat.

So Cornwallis, having removed the executive from the district courts, left it sitting as the highest civil and the highest criminal court in the country. The separation was complete below and absent at the top.

That was cured eight years later. By Regulation II of 1801 the Nizamat Adalat and the Diwani Adalat, which until then had consisted of the Governor-General and the members of Council, were directed to be composed of a Chief Judge and puisne judges, and from that time both courts exercised their functions distinct from the legislative and executive authority of the State. In 1811 the composition was made a Chief Judge and as many puisne judges as the Governor-General in Council thought necessary.

A student who can date the real separation of the highest courts from the executive to 1801 rather than to 1793 is giving an answer very few will give.

A worked example

Ramnath, the zamindar of the earlier chapter, has the same three grievances in 1795.

One, the over-assessment. No longer a Mal Adalat, which has been abolished. He sues in the zillah Diwani Adalat, before a judge who has nothing to do with the revenue. If the Collector has exacted more than he was authorised to demand, the Collector is personally liable and may be prosecuted. Appeal to the Provincial Court of Appeal, then to the Sadar Diwani Adalat.

Two, his brother's inheritance claim. The same zillah Diwani Adalat, applying Hindu law, with the same appeals.

Three, the assault on his tenant. Committed by the magistrate, tried by the Court of Circuit, capital sentences confirmed by the Sadar Nizamat Adalat at Calcutta.

Compare that with the 1789 version in the chapter on the plan of 1787, where the officer complained of was the judge of the complaint. The whole reform is visible in the change to grievance one.

Distinctions worth having straight

What beginners get wrong

"Cornwallis separated the executive and the judiciary completely in 1793." He separated them at every level except the top. The Sadar Diwani Adalat and the Sadar Nizamat Adalat remained the Governor-General in Council until Regulation II of 1801.

"The Cornwallis Code was a code of law like the Indian Penal Code." It was a consolidation of the Regulations, printed with translations and with the reason for each prefixed. It is a code in the sense of an ordered collection, not a code in the sense of a systematic restatement of substantive law. That kind of code arrives after the Charter Act of 1833 and the Law Commission.

"The separation lasted." It did not. The jurisdictions were united a third time in 1831, and Act X of 1859, in Cowell's words, directly violates the principles laid down in the preamble to Regulation II of 1793. Constant attempts were successfully made in the interests of the executive to depart from the policy.

Limits and criticism

The plan of 1793 is the high point of this part of the syllabus and it deserves to be praised precisely, not vaguely.

Its principle is stated better in Regulation II of 1793 than in most modern constitutional documents: that a government must divest itself, in its executive capacity, of the power to infringe the rights it has conferred in its legislative capacity, and that its own officers must be answerable to courts they do not control. A student writing about the rule of law in Module III can cite it as the earliest clear statement of that idea by a government in India.

Its weaknesses are three. It left the two highest courts in the hands of the executive for eight years. Its judges were exclusively English covenanted servants, and the Indian judicial officers, the sadar ameens and munsifs, were confined to the lowest rungs. And it was extremely expensive and extremely slow, which is the practical complaint that drove the reunions of 1831 and 1859 and the criticism that the next chapter is about.

Quick revision

• Cornwallis's minute, 1793: revenue officers must be armed with power to enforce demands, "but to prevent the abuse of this power, there should be Courts of Justice ready to punish oppression and exaction."
• Regulation II of 1793: Mal Adalats abolished; all causes tried by revenue officers transferred to the civil courts; Collectors confined to executive functions under the Board of Revenue and made personally liable for exactions beyond what they were authorised to demand.
• Regulation V of 1793: four Provincial Courts of Appeal for Bengal, Bihar and Orissa, above the zillah and city Diwani Adalats.
• Regulation VI of 1793: the Sadar Diwani Adalat at the Presidency, consisting of the Governor-General and members of the Supreme Council.
• Criminal: the regulations of 1790 re-enacted; the Nawab Nazim's authority abolished; the Governor-General and Council formed the Sadar Nizamat Adalat, with Courts of Circuit below.
• The Code: all regulations formed into a printed code, translated, with the ground of each regulation prefixed; made a statutory requirement by Parliament in 1797.
• Regulation II of 1801: the two Sadar courts given a Chief Judge and puisne judges, and from then they were distinct from the legislative and executive authority of the State.

Test yourself

1. Quote the substance of Cornwallis's reason for the separation of 1793. That no class of men should be watched with greater jealousy than the officers entrusted with the collection of the revenue; that it is necessary to arm them with power to enforce their demands; and that to prevent the abuse of that power there should be courts of justice ready to punish oppression and exaction.

2. Give the objection of principle stated in the preamble to Regulation II of 1793. That if the regulations for assessing and collecting revenue are infringed, the revenue officers themselves must be the aggressors, and individuals wronged by them in one capacity can never hope to obtain redress from them in another. Therefore the revenue officers must be deprived of their judicial powers and made amenable to the courts.

3. Set out the three tiers of the civil courts under the 1793 system. Zillah and city Diwani Adalats in each district under a covenanted judge; four Provincial Courts of Appeal under Regulation V of 1793; and the Sadar Diwani Adalat at the Presidency under Regulation VI of 1793, then consisting of the Governor-General and the members of the Supreme Council.

4. What was left unseparated in 1793, and when was it cured? The two highest courts, the Sadar Diwani Adalat and the Sadar Nizamat Adalat, remained the Governor-General and the members of Council. Regulation II of 1801 directed both to consist of a Chief Judge and puisne judges, and from that time they exercised their functions distinct from the legislative and executive authority of the State.

5. In what sense was the Cornwallis Code a code? In the sense of an ordered and printed consolidation of the existing Regulations, translated into the country languages, with the ground of each regulation prefixed and the courts bound to decide according to it. It was not a systematic restatement of substantive law of the kind produced after 1833.

Multiplication of courts and of judges. More courts were created and the number of judges increased. The Sadar Diwani Adalat, reconstituted in 1801 with a Chief Judge and two judges, was enlarged again by Regulation XII of 1811 to a Chief Judge and as many puisne judges as the Governor-General in Council should think necessary, and the same happened on the criminal side.

Indian judicial officers. Because there were never enough covenanted English judges, and because they were expensive, Indian judicial officers were given work at the bottom of the structure. The register of a zillah court, the sadar ameen and the munsif were empowered to try suits of small value, and their jurisdiction was extended by stages over the following decades. A munsif is a judge of the lowest civil court; a sadar ameen was the next grade above. Those two words are still in use in Indian district judiciaries, and they enter the system here.

The separation completed at the top. By Regulation II of 1801 the Sadar Diwani Adalat and the Sadar Nizamat Adalat ceased to be the Governor-General and the members of Council and were given a Chief Judge and puisne judges, and from that time both courts exercised their functions distinct from the legislative and executive authority of the State. The requirement that their proceedings be kept in English was relaxed, and copies of their proceedings ceased to be required except on appeal to His Majesty in Council or on a reference to the Governor-General in Council.

The criticism that mattered

The standing complaint against the Cornwallis system, made from within the service almost as soon as it was made, was that it was too English for the country.

Its procedure was elaborate; its judges were foreigners who did not speak the languages of the litigants; its costs were high; its delays were long; and its exclusion of Indians from every office above the lowest meant that the men who understood the country had no share in deciding its disputes. A cultivator with a small claim had, in practice, no court at all: the zillah court was distant, slow and expensive, and the munsif's jurisdiction was tiny.

Set against that is what the system achieved, and a fair answer says both. For the first time there were courts in the districts that were not the revenue department, presided over by judges with no financial interest in the outcome, applying a printed code with the reason for each rule stated in it, with an appeal that ran to a court which by 1801 was itself independent of the government. That is a real achievement and nothing like it had existed in Bengal before.

A worked example

A cultivator in 1800 has a claim for forty rupees against a neighbour.

Where does he go? The zillah Diwani Adalat is the court of general jurisdiction. It sits at the district headquarters, perhaps forty miles away; its judge is an Englishman; its procedure is written; its costs will exceed the claim; and its list is years long.

What does he do? In practice, not sue. He takes the dispute to the village, to the caste, to arbitration, or he abandons it.

What is the remedy the system found? The munsif: an Indian judicial officer, sitting locally, with jurisdiction over small suits, cheap and quick. The whole later history of the Indian civil judiciary is the progressive enlargement of that office, and it begins in the years this topic covers.

Distinctions worth having straight

What beginners get wrong

"Sir John Shore introduced a new judicial plan." He did not. He administered the Cornwallis system, and the changes of this period are adjustments to it rather than a fourth plan. If a question asks for Shore's plan, the honest answer is that there was none, and to describe what actually happened instead.

"Indians were excluded from the judiciary until the British left." They were excluded from the higher offices for a long time, and admitted to the lower ones from this period onwards through the munsif and sadar ameen. The progressive enlargement of those offices, and eventually the admission of Indians to the higher grades, is a continuous story from here to the district judiciary of Module III.

"The system failed." It was too slow and too expensive, and it survived, with continual amendment, until the courts were reorganised after 1861. Failure is the wrong word for a structure that lasted seventy years and whose vocabulary, zillah judge, munsif, district judge, sessions, is still in use.

Limits and criticism, and the handover to Module II

The last thing to notice in Module I is what the Cornwallis system did not touch, because that is what Module II is about.

Everything in this chapter concerns the mofussil: the Company's courts, the Regulations, Hindu and Muslim law, the Sadar Adalats. Alongside it, unchanged, stood the Supreme Court at Calcutta, a King's court applying English law, with its own appeal to the King in Council, subject to none of these Regulations and bound by none of this Code.

Two systems, side by side, in the same provinces, for another sixty-eight years. The struggles between the civil and revenue courts that this chapter describes were internal to one of them. The struggle between the two systems is the subject of the next chapter, and its resolution is the Indian High Courts Act 1861.

Quick revision

• Sir John Shore succeeded Cornwallis as Governor-General in 1793 and administered his system without changing its principles.
• The practical defects that emerged: arrears, cost, delay, distance, and a procedure and a bench that were foreign to the litigants.
• Remedies: more courts and more judges; the extension of the jurisdiction of Indian judicial officers, the register, the sadar ameen and the munsif; and the reconstitution of the Sadar courts.
• Regulation II of 1801: the Sadar Diwani Adalat and the Sadar Nizamat Adalat given a Chief Judge and puisne judges, exercising their functions distinct from the legislative and executive authority of the State.
• Regulation XII of 1811: a Chief Judge and as many puisne judges as the Governor-General in Council thought necessary.
• Shore's own minute of the 1770s explains his caution: a judge who does his duty makes himself liable to prosecution, and scarcely any Indian transaction tried by English standards would admit of a justification.

Test yourself

1. What was Sir John Shore's judicial plan? There was none. He administered the system Cornwallis had established in 1793, and the changes of the period are adjustments to it: more courts, more judges, wider jurisdiction for Indian judicial officers, and the reconstitution of the Sadar courts by Regulation II of 1801.

2. Name the four practical defects that the working of the Cornwallis system exposed. Accumulating arrears in the zillah courts; high cost; long delay and distance for the litigant; and a procedure and a bench foreign to the people who used them, with Indians excluded from all but the lowest judicial offices.

3. What did Regulation II of 1801 do, and why does it complete the reform of 1793? It directed that the Sadar Diwani Adalat and the Sadar Nizamat Adalat, which until then consisted of the Governor-General and members of Council, should be composed of a Chief Judge and puisne judges, so that from that time both exercised their functions distinct from the legislative and executive authority of the State. It completes 1793 because Cornwallis had separated revenue from justice everywhere except at the top.

4. What is a munsif, and why does the office matter? The judge of the lowest civil court. It matters because it was through the munsif and the sadar ameen that Indians entered the judiciary at all, and because the progressive enlargement of that jurisdiction is the beginning of the district civil judiciary that exists today.

5. What did the whole Cornwallis system leave untouched, and why does that matter for the next module? The Supreme Court at Calcutta and the other King's courts in the Presidency Towns, which applied English law, were subject to none of the Regulations and had their own appeal to the King in Council. Two systems therefore continued side by side until the Indian High Courts Act 1861, and that is the subject of Module II.