The Legal Profession under the Charter of 1774

Who the words let in

Clause 11 states no qualification, but the two words it uses had settled meanings in English law in 1774, and those meanings are the substance of the rule.

Advocate then extended only to English and Irish barristers and members of the Faculty of Advocates in Scotland. The Faculty of Advocates is the Scottish bar, whose members were called advocates rather than barristers, which is why the word had to be used instead of "barrister" to cover the three jurisdictions.

Attorney then meant only the British attorneys or solicitors: the branch of the English profession that acted, as opposed to the branch that pleaded.

So the class of persons the Supreme Court could admit was, on the meaning of the words, the British legal profession and nobody else. The indigenous Indian legal practitioner had no entry into this court. Put clause 11's two halves together and the result is exact: only enrolled advocates and attorneys may appear, and only British barristers, Scottish advocates and British attorneys may be enrolled.

The same happened at Madras and Bombay. The charters constituting the Supreme Courts there gave each of them a similar power to approve, admit and enrol advocates and attorneys, and the words meant the same thing, so in all three Supreme Courts only British barristers, advocates and attorneys were eligible for enrolment.

Why this matters more than it looks

It is easy to read clause 11 as a piece of housekeeping about rights of audience. It is not, and three consequences run from it to the end of this module.

It created two professions in one country. From 1774 there were King's courts in the Presidency Towns whose bar was British by definition, and Company's courts in the mofussil whose practitioners, after 1793, were licensed vakils who by the terms of that Regulation could only be Hindus or Muslims. Two systems of courts, two bodies of law, two languages, and now two professions, neither of which could practise in the other's courts.

It fixed the shape of the profession for nearly two centuries. The division between the man who pleads and the man who acts, imported by clause 11's "appear and plead, and act", survived every reform in this module. It was still the subject of the second term of reference of the All-India Bar Committee in 1951: the continuance or abolition of the dual system of counsel and solicitor in the Supreme Court and in the High Courts at Bombay and Calcutta.

And it put admission in the hands of the court. Clause 11 is where the Indian rule comes from that the court admits, enrols and removes. That rule survived the Supreme Courts, passed into clause 9 of the letters patent of the High Courts, and was only displaced in 1961 when the Advocates Act gave enrolment to the State Bar Councils.

What the Settlement Act did, and did not do

The conflicts between the Supreme Court and the Governor-General in Council, which Module I sets out in detail, were composed by the Act of Settlement 1781. Section 8 took away from the Supreme Court all jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection of it according to the usage and practice of the country or the regulations of the Governor-General and Council.

That was a large change to the Court's jurisdiction, and the distrust behind it was durable: every later statute creating or continuing the High Courts, down to the Government of India Act 1935, contained a section substantially reproducing it.

But the Act of Settlement made no change in the organisation of the legal profession so far as the Supreme Court was concerned. Clause 11 stood. What section 23 of that Act did do was to empower the Governor-General and Council to frame regulations for the provincial courts, reserving to the King in Council a right to disallow or amend them within two years, and it is under that power that the Bengal Regulations of 1793 were made, including the Regulation that created the profession of the Company's courts. The next chapter is about them.

A worked example

Calcutta, 1780. Ramnath, a Bengali merchant, is sued in the Supreme Court of Judicature at Fort William.

May he instruct the vakil who has acted for his family for twenty years? No. By clause 11 no person whatsoever but an advocate or attorney admitted and enrolled by the Court may appear, plead or act for a suitor.

May the vakil apply to be enrolled? He may apply, but "advocate" extends only to English and Irish barristers and Scottish advocates, and "attorney" to British attorneys and solicitors. He is neither.

Who then? An enrolled attorney of the Court will act for him and be on the record, and an enrolled advocate will plead. Both will be British, both will work in English, and both will charge on an English scale.

And if the suit had been in the mofussil? Then it would be in a Company's court, in Persian, under the Regulations, and after 1793 he could instruct a licensed vakil, who by that Regulation had to be a Hindu or a Muslim, and who could not have appeared for him in Calcutta.

That single comparison is the answer to any question about the legal profession in this period.

What beginners get wrong

"The Charter of 1774 created the Indian legal profession." It created a profession in India, admitted and enrolled by the Supreme Court, and it was British. The Indian legal profession of the Company's courts was created by Bengal Regulation VII of 1793, and the two were kept apart for a century.

"Advocate meant any pleader." In 1774 it extended only to English and Irish barristers and members of the Faculty of Advocates in Scotland. In the letters patent of 1865 the word sits beside "vakeel" precisely because by then it did not cover Indian practitioners either.

"The Act of Settlement 1781 opened the Supreme Court to Indian practitioners." It did not. It restricted the Court's revenue jurisdiction by section 8 and it left the organisation of the profession untouched.

"Clause 11 required a legal qualification." It required admission and enrolment by the Court, in such numbers as the Court thought fit. The qualification came from the meaning of the words "advocate" and "attorney", not from any provision of the charter.

Limits and criticism

The clause is a model of how a rule can exclude without saying so. It contains no racial word. It admits "such and so many advocates and attorneys at law as shall seem meet", which sounds open, and then relies on the technical meaning of two English words to make the class of eligible persons entirely British. A student who understands that is well placed for a good deal of the constitutional law they will study later.

Its practical results were what you would expect. Litigants who did not speak English were represented by men who did not speak their language, before judges sent from England, in a court applying English law, and the cost was on an English scale. The Patna case and the Cossijurah case, which Module I tells at length, are cases in which Indian parties found themselves inside that machine.

And the exclusion was not symmetrical. British barristers and attorneys were let into the Company's courts by the Legal Practitioners Acts of 1846 and 1853, while Indian practitioners were rigorously kept out of the three Supreme Courts to the end. That asymmetry is the grievance the rest of this module is the answer to.

Quick revision

• Charter of 26 March 1774, under section 13 of the Regulating Act 1773, established the Supreme Court at Fort William. Clause 11 governs the profession.
• The Court may approve, admit and enrol such and so many advocates and attorneys at law as shall seem meet; they are attorneys of record; they may appear, plead and act for suitors; and the Court may remove them on reasonable cause.
• No other person whatsoever may appear, plead or act for a suitor: the first exclusive right of audience in India.
• Advocate then meant only English and Irish barristers and members of the Faculty of Advocates in Scotland; attorney meant only British attorneys or solicitors. So the bar was British, and the Indian practitioner had no entry.
• The Supreme Courts at Madras and Bombay were given the same power, with the same result.
• The Act of Settlement 1781 took away revenue jurisdiction by section 8, a section reproduced in every later High Courts statute down to 1935, but made no change to the profession; by section 23 it empowered the Governor-General and Council to make regulations for the provincial courts.

Test yourself

1. Set out what clause 11 of the Charter of 1774 provided. That the Supreme Court might approve, admit and enrol such and so many advocates and attorneys at law as should seem meet to it; that they should be attorneys of record and were authorised to appear, plead and act for the suitors of the Court; that the Court might remove them on reasonable cause; and that no other person whatsoever should be allowed to appear and plead or act for those suitors.

2. Why did clause 11 exclude Indians when it contains no racial words? Because of the settled meaning of the two words it uses. In 1774 "advocate" extended only to English and Irish barristers and members of the Faculty of Advocates in Scotland, and "attorney" only to British attorneys or solicitors. Only persons within those descriptions could be enrolled, and only enrolled persons could appear.

3. What did the Act of Settlement 1781 change, and what did it leave alone? Section 8 took away the Supreme Court's jurisdiction in matters concerning the revenue and acts done in its collection, and that section was substantially reproduced in every later statute creating or continuing the High Courts down to the Government of India Act 1935. It left the organisation of the legal profession in the Supreme Court untouched. Section 23 empowered the Governor-General and Council to frame regulations for the provincial courts.

4. Name the two consequences of clause 11 that lasted until 1961. The dual system of counsel and solicitor, carried into India by the words "appear and plead, and act", which the All-India Bar Committee was still examining in 1951; and the rule that the court admits, enrols and removes its own practitioners, which passed into clause 9 of the letters patent of the High Courts and was displaced only when the Advocates Act 1961 gave enrolment to the State Bar Councils.