The Charter of 26 March 1774 and the Court It Created
Chapter Fourteen
Syllabus topic 1.2, "Establishment of Supreme Court at Calcutta under the Charter of 1774"
Pages 64 to 67 of 491
In one line
The Act said the King might create a court; the Charter of 26 March 1774 created it, named four judges, and opened it at Calcutta that October.
In the wording a student can write in an exam: in exercise of the power conferred by section 13 of the Regulating Act 1773, His Majesty by charter dated 26 March 1774 erected and established the Supreme Court of Judicature at Fort William in Bengal, consisting of Sir Elijah Impey as Chief Justice and Robert Chambers, Stephen Caesar Lemaistre and John Hyde as puisne judges, with jurisdiction as a court of common law, of equity, of criminal law, of ecclesiastical law and of admiralty, with the powers of the Court of King's Bench in England, and with an appeal to the King in Council.
The Act and the Charter are two documents
Students lose marks by merging them, and the distinction is easy.
The Regulating Act 1773 is a statute of the British Parliament. Section 13 of it made it lawful for the King to erect a Supreme Court, and described what that court was to have. It did not create anything.
The Charter of 26 March 1774 is letters patent under the Great Seal. It is the instrument that actually erected the Court, appointed the judges, and settled its constitution and process.
So the correct sentence is: the Supreme Court at Calcutta was established by the Charter of 1774, under the power given by section 13 of the Regulating Act 1773. When an examiner asks about "the establishment of the Supreme Court under the Charter of 1774", that sentence is the first one to write.
The judges
The Charter named four. Sir Elijah Impey as Chief Justice, and Robert Chambers, Stephen Caesar Lemaistre and John Hyde as the puisne judges. A puisne judge, pronounced "puny", is simply a judge of a court other than its chief; the word is still used in the Indian High Courts.
Two things about them matter for everything that follows.
They were English barristers appointed by the Crown, as section 13 required, of at least five years' standing. They were not the Company's servants and the Company could not dismiss them.
And they were paid by the Company. The Chief Justice's salary was £8,000 a year, a figure Impey himself once contrasted with the hundred rupees a month paid to a kazi. A court whose judges are appointed by one authority and paid by another is in an awkward position, and the Company never let it forget which of the two signed the cheques.
The Court opened at Calcutta in October 1774, a few days after the three new Councillors arrived. That coincidence of dates is worth remembering: the Court and the quarrelling Council began work in the same month.
The Charter of 26 March 1774 and the Court It Created
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.
The Charter of 26 March 1774 and the Court It Created
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.
The Charter of 26 March 1774 and the Court It Created
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.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.