From Factory to Court, 1601 to 1686

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.