The Regulating Act 1773: The Supreme Court at Calcutta

Four of those words need unpacking, and a student should be able to give each in a line. Civil jurisdiction is over suits between subject and subject. Criminal jurisdiction is over offences. Admiralty jurisdiction is over maritime matters, including prize. Ecclesiastical jurisdiction is over matters that in England belonged to the Church courts, chiefly wills and the administration of the estates of the dead. To those the Court's own charter would add equity, so that the Court is commonly described as having five jurisdictions. Court of record, oyer and terminer and gaol delivery are explained at [The Charter of 1726: Mayors' Courts at Madras, Bombay and Calcutta].

Notice what is not in section 13. It does not say what law the Court is to apply. That silence, the same silence as in the Charter of 1726, is the origin of the trial of Nandkumar and of most of what follows.

Section 14: over whom

Section 14 is the jurisdiction clause, and it is the section that produced the quarrel. It provides that the new charter, and the jurisdiction, powers and authorities to be established by it, shall extend to all British subjects who shall reside in the kingdoms or provinces of Bengal, Bihar and Orissa, or any of them, under the protection of the said United Company, and that the Supreme Court shall have full power and authority:

1. to hear and determine all complaints against any of His Majesty's subjects for any crimes, misdemeanours or oppressions committed or to be committed; and
2. to entertain, hear and determine any suits or actions whatsoever against any of His Majesty's subjects in Bengal, Bihar and Orissa; and
3. any suit, action or complaint against any person who shall, at the time when the debt or cause of action or complaint arose, have been employed by, or have been directly or indirectly in the service of, the Company.

The third limb is the trap. "Directly or indirectly in the service of the said United Company" is a phrase without edges. Was a revenue farmer in the Company's service? A zamindar who collected revenue and paid it to the Company? A banker who held the Company's money? A servant of a servant? Every one of the seven proceedings MU names in topic 1.2 turns, somewhere, on that phrase.

And notice a second difficulty. Limb 1 speaks of complaints against His Majesty's subjects for crimes, misdemeanours or oppressions. Were the inhabitants of Calcutta His Majesty's subjects? The Act does not say, the Charter does not say, and the judges of the Supreme Court later complained that the questions of who was a subject, and whether the territorial acquisitions amounted to an acquisition of sovereignty, were left doubtful to be decided by the Court whenever they should arise.

Section 15: the immunity of the Government

Section 15 provides that the Court shall not be competent to hear, try or determine any indictment or information against the Governor-General or any of the Council for the time being, for any offence, not being treason or felony, which he shall be charged with having committed in Bengal, Bihar and Orissa.

An indictment is a formal written accusation of crime presented to a court; an information is a similar accusation preferred without a grand jury. So the section is about criminal proceedings only, and it leaves two things untouched.

It does not protect the Governor-General or a Councillor from a charge of treason or felony. And it does not protect them from civil suits at all. That gap is exactly what the plaintiff in the Cossijurah dispute used when he sued Warren Hastings and the members of Council personally, and it is why the Settlement Act of 1781 had to go further than section 15.

A worked example

A merchant in Murshidabad in 1777 wants to sue for a debt. Can he do it in the Supreme Court at Calcutta?

Case one. The defendant is an English free merchant living at Murshidabad. Yes: he is a British subject residing in Bengal under the Company's protection, and section 14 covers him.

Case two. The defendant is an Indian banker who has never had anything to do with the Company. Section 14 gives no jurisdiction unless he is one of His Majesty's subjects, which was doubtful outside Calcutta, or was employed by the Company. The right answer is that the Court had no jurisdiction, and in practice a plea to the jurisdiction succeeded.

Case three. The defendant is an Indian who farms the revenue of a district for the Company. Now limb 3 of section 14 is arguable: was he "directly or indirectly in the service of" the Company at the time the debt arose? The plaintiff files an affidavit saying he was; the defendant says he was a contractor and not a servant. That single question is the Cossijurah dispute.

Case four. The plaintiff wants to prosecute a member of the Council for oppression, not amounting to felony, committed at Patna. Section 15 shuts the door: the Court is not competent to try such an indictment or information.

Distinctions worth having straight

What beginners get wrong

"The Regulating Act established the Supreme Court." Section 13 empowered the Crown to establish it by charter. The Court was established by the Charter of 26 March 1774.

"The Supreme Court had jurisdiction over all Indians." It did not, and it never claimed to. Its jurisdiction over Indians depended on their being in the Company's service, or on their submitting to it, and where a zamindar pleaded to the jurisdiction the plea was ordinarily sustained.

"Section 15 protected the Governor-General from everything." It protected him from criminal indictments and informations for offences other than treason or felony. It did not protect him from a civil action, which is what he was in fact sued by in 1780.

"The judges were Company servants." They were barristers of at least five years' standing, appointed by the Crown, and paid, but not appointable or removable, by the Company. That independence is the whole point of the Court and the whole cause of the quarrel.

Limits and criticism

The criticism the judges themselves made is the one to remember, because it is both fair and precise: the Act made subjection to the English Crown the test of liability to the jurisdiction of the Court, and then said nothing about who was a subject.

There was no declaration, in the statute or in the charter, about which of the inhabitants of Bengal were subjects, nor whether the Company's territorial acquisitions amounted to an acquisition of sovereignty or only to powers exercised within the territories of the Mughal, nor whether Calcutta itself was so far within the King's allegiance that persons born there were natural-born subjects. Questions of the first importance were left doubtful, to be decided by the Court whenever they arose, and the Court had to decide them while being accused of usurpation for doing so.

Add to that the silence about the applicable law and the elastic words of the third limb of section 14, and the Act had built a court that could not avoid a collision with the government beside which it sat.

Quick revision

• s.13: His Majesty may erect a Supreme Court of Judicature at Fort William by charter under the Great Seal; a Chief Justice and three judges, barristers of England or Ireland of five years' standing; civil, criminal, admiralty and ecclesiastical jurisdiction; power to make rules of practice; a court of record; a court of oyer and terminer and gaol delivery for Calcutta and its subordinate factories.
• s.14: jurisdiction over all British subjects resident in Bengal, Bihar and Orissa under the Company's protection; over His Majesty's subjects for crimes, misdemeanours or oppressions and in suits; and over any person employed by, or directly or indirectly in the service of, the Company.
• s.15: no indictment or information against the Governor-General or a Councillor for an offence not being treason or felony committed in those provinces.
• The Act is silent on the law to be applied and on who is a subject.

Test yourself

1. What did section 13 actually enact? That it should be lawful for His Majesty by charter under the Great Seal to erect and establish a Supreme Court of Judicature at Fort William, of a Chief Justice and three judges who must be barristers of at least five years' standing, with all civil, criminal, admiralty and ecclesiastical jurisdiction, power to make rules of practice, the status of a court of record, and the commissions of oyer and terminer and gaol delivery for Calcutta.

2. Set out the three classes of person section 14 brought within the Court's jurisdiction. British subjects residing in Bengal, Bihar and Orissa under the Company's protection; His Majesty's subjects, against whom complaints for crimes, misdemeanours or oppressions and suits and actions might be entertained; and any person who at the time the cause of action arose was employed by, or was directly or indirectly in the service of, the Company.

3. What did section 15 protect, and what did it leave exposed? It protected the Governor-General and Councillors from indictments and informations for offences other than treason or felony committed in the three provinces. It left them exposed to charges of treason or felony, and to civil actions, and the civil action is what was used against them in the Cossijurah dispute.

4. Name the two silences in the Act that caused the quarrel with the Council. It did not say what law the Court was to apply, and it did not say who was a British subject or whether the Company's acquisitions amounted to sovereignty. Both were left to be decided by the Court in the course of litigation.

5. Was a zamindar within the Court's jurisdiction? Not as a zamindar. He came within it only if he was in fact employed by or in the service of the Company, or if he submitted to the jurisdiction. Where a zamindar pleaded to the jurisdiction the plea was ordinarily sustained.