Law Practitioners in the Mayor's Court, 1726

Acting and pleading, a distinction to learn now

Two words appear together in every instrument in this half of the module, and a student who does not separate them will misread all of them.

To plead is to argue the case in court: to address the judge, examine witnesses, and make the submissions. That is the work of counsel, and in England of the barrister.

To act is to conduct the case out of court: to be on the record as the party's representative, to file the pleadings, to give and take notice, to instruct counsel, and to be answerable to the court and the client for the conduct of the litigation. That is the work of the attorney, later called the solicitor.

The English profession was divided between the two, and the division came to India with the King's courts and stayed there for more than two hundred years. It is what the All-India Bar Committee of 1951 was asked to examine as the dual system of counsel and solicitor, and it is why a Bombay or Calcutta advocate on the original side still speaks of being instructed by an attorney.

In the Mayors' Courts the division existed in practice without existing in law. There is no charter provision creating attorneys of the Mayor's Court, and no charter provision admitting advocates; there are rules of practice, made by a court of merchants, about who might do what.

Who actually appeared

Here the honest answer is short, and it is the answer this book gives.

The charter names nobody, and the sources read for this book do not preserve the rules of practice the courts made under it. What can be said with confidence is what follows from the character of the court and is recorded of it.

The judges were the Mayor and nine Aldermen, merchants of the settlement, of whom seven had to be natural-born British subjects. The court was a civil court, trying suits between party and party and granting probate and letters of administration. Its business was largely the business of the trading community: debts, contracts of sale, freight, and the estates of dead merchants.

Men who appeared in such a court were the servants and agents of the trading houses, and, on the criminal side, before the Governor and his councillors as Justices of the Peace, whoever the accused could persuade to speak for him. There was no requirement of legal training, no examination, and no roll.

And after 1753, one further category of litigant largely disappeared. The amended Charter of 8 January 1753 provided that the Mayors' Courts should not try suits between Indian parties only unless both parties consented to submit the dispute. The practical effect on the profession is worth noticing: the class of vakils who had grown up in the indigenous courts, and who were about to be enrolled and licensed in the Company's courts of the mofussil, had almost no work in the King's courts of the Presidency Towns, because the disputes they were used to conducting had been excluded from those courts.

That is the beginning of the split that lasted until 1961: an English-speaking bar in the King's courts and an Indian one in the Company's, with different work, different law, different language, and, for a century, no way from one to the other.

A worked example

Calcutta, 1740. A Hindu merchant is sued in the Mayor's Court for the price of goods sold by an English house.

Who may appear for him? Whoever the rules of practice of the Mayor's Court allow, because the charter says nothing. There is no enrolled bar, and no qualification he must look for.

In what language will the case be conducted? English, and on an adaptation of English procedure.

What law will be applied? Whatever the court thinks "justice and right" requires, which in this court means English common law and rules of equity.

And after 1753? If the plaintiff were also Indian, the court could not try the suit at all without the defendant's consent, and the question of who might appear for him would not arise in this court.

Now compare that with the same merchant thirty-five years later, in the same city, in the Supreme Court of Judicature at Fort William. The next chapter answers the same four questions, and every answer has changed.

What beginners get wrong

"The Charter of 1726 provided for advocates and attorneys." It did not. It is silent on the qualification of practitioners and left the matter to the court's own rules of practice. The first Indian instrument that provides in terms for the admission and enrolment of advocates and attorneys is the Charter of 1774.

"There were barristers in the Mayors' Courts." Some men who appeared may have been trained; the charter required nothing of anybody, and no source read here records an organised bar of trained practitioners in those courts.

"Acting and pleading are the same thing." They are the two halves of an English lawyer's work, divided between attorney and counsel. Every instrument from 1774 onwards uses both words deliberately, and the dual system they describe was still being examined by a committee in 1951.

Limits and criticism

A court of merchants, applying a law none of them had studied, in a language most litigants did not speak, with no requirement that anybody appearing before it should know any law either, is not a system likely to produce good decisions, and the complaints that produced the Charter of 1753 and then the Regulating Act say as much.

But the defect to notice for this half of the module is not the quality of the advocacy. It is that the question of who may appear was treated as a matter of court housekeeping, to be settled by rules of practice along with the appointment of clerks and the table of their fees. It stayed a matter of court housekeeping, court by court, for two hundred and thirty-five years. Every later reform in this module is an attempt to move it: to the Company's legislature in 1793 and 1879, to a Bar Council with the High Court's sanction in 1926, and finally to a national statutory body in 1961.

Quick revision

• The Charter of 1726 created Mayors' Courts at the three Presidency Towns and said nothing about the qualification of practitioners.
• It gave each court power to frame rules of practice and appoint officers, and admission was presumably left to those rules.
• The procedure was an adaptation of English procedure, and the language of the court appears to have been English.
• To plead is to argue in court, the work of counsel; to act is to conduct the litigation on the record, the work of the attorney. The English dual system came to India with these courts.
• The amended Charter of 1753 excluded suits between Indian parties only unless both consented, so the vakils of the indigenous courts had little place in the King's courts.
• No qualification, no examination and no roll: there was no organised legal profession in the Mayors' Courts.

Test yourself

1. What did the Charter of 1726 say about who might appear in the Mayors' Courts? Nothing. It laid down no qualification for persons entitled to act or plead for suitors, and left the matter to be regulated by the rules of practice which the courts were themselves authorised to frame, along with the appointment of clerks and officers and the table of their fees.

2. Distinguish acting from pleading. Pleading is arguing the case in court, the work of counsel or, in England, of the barrister. Acting is conducting the litigation out of court and on the record: filing pleadings, giving notice, instructing counsel and answering to the court and client for the conduct of the case. That is the attorney's work. The division is the dual system, which came to India with the King's courts.

3. Why did the vakils of the indigenous courts have almost no work in the Mayors' Courts? Because the courts worked in English on an adaptation of English procedure and applied English law; and because after the amended Charter of 1753 they could not try suits between Indian parties only unless both parties consented, which removed most of the litigation a vakil was used to conducting.

4. Why does the silence of the 1726 charter matter to the rest of this module? Because it made the right of audience a matter for each court's own rules, and it stayed that way: the Supreme Courts under their charters, the High Courts under section 9 of the Act of 1861 and their letters patent, and even the Legal Practitioners Act 1879 left much to High Court rules. Only the Advocates Act 1961 made admission a national question with one answer.