The Charter of 1726: Mayors' Courts at Madras, Bombay and Calcutta

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.