The Supreme Courts at Madras and Bombay

Why the dates matter for Module II

Three consequences follow, and each is worth a sentence in an answer.

The dual system became complete only in 1823. Before that, the collision between Crown courts and Company courts was a Bengal phenomenon in its sharpest form. Madras and Bombay had their own Company courts, and their own Sadar Adalats, but their Crown courts were a Mayor's Court until 1798 and a Recorder's Court until 1801 and 1823.

Each Presidency developed its own practice. Three Supreme Courts created at three different dates, each with its own charter, its own rules of practice and its own relationship with its Sadar Adalat, produced three different bodies of practice. The Letters Patent of 1862 and 1865 had to be issued separately for each High Court for exactly that reason, and differences between the Calcutta, Madras and Bombay High Courts survive from it.

And it explains the shape of the Act of 1861. Section 1 of that Act authorises Her Majesty to erect a High Court at Fort William "and by like Letters Patent to erect and establish like High Courts at Madras and Bombay for those Presidencies respectively", at such time or times as may seem fit. Parliament legislated for three separate Presidencies with three separate histories, and gave the Crown power to deal with each in its own time.

A worked example

A merchant of Madras with a claim of 2,000 pagodas against an English trader there. Where does he sue?

In 1790: the Mayor's Court at Madras under the Charter of 1753, a court of a Mayor and nine Aldermen, merchants; appeal to the Governor in Council, and above 1,000 pagodas to the King in Council.

In 1799: the Recorder's Court, the same body with a Crown-appointed barrister as Recorder sitting in it.

In 1810: the Supreme Court of Madras, a bench of English barristers, with the same five jurisdictions as at Calcutta and an appeal to the King in Council.

In 1870: the High Court of Madras, which by then has absorbed both the Supreme Court and the Sadar Adalat.

Four courts, one town, eighty years. The last change is the one Module II is about.

What beginners get wrong

"The Supreme Court of 1774 was for the whole of India." It was for Bengal, established at Fort William. Madras waited until 1801 and Bombay until 1823.

"The Recorder's Courts were Company courts." They were the Mayors' Courts with a Crown-appointed barrister added as Recorder. They belong on the Crown side of the dual system.

"All three Supreme Courts had identical powers." They were on the same model, but each was constituted by its own charter at a different date, and their practice diverged. That is why the letters patent of the 1860s were issued separately for each High Court.

Limits and criticism

The half-century between 1774 and 1823 shows something about the whole period that is easy to miss: there was no policy.

A court was created at Calcutta because Parliament was angry about Bengal. Madras and Bombay were given a Recorder in 1798 because their Mayors' Courts were plainly inadequate and a full Supreme Court was thought too expensive. Madras got a Supreme Court three years later; Bombay waited twenty-two years more. No document explains the sequence and no principle is discoverable in it, other than that each change followed a particular local difficulty.

The consequence is the one that matters for the rest of this module. By 1823 India had six superior courts, three of the Crown and three of the Company, in three Presidencies, none of them subordinate to another, with two separate appellate routes to England. That is the arrangement the Law Commissioners called on Parliament to end, and the Act of 1861 ended it.

Quick revision

• The Charter of 1774 created a Supreme Court for Bengal alone, at Fort William.
• 1798: the Mayors' Courts at Madras and Bombay replaced by Recorder's Courts, the Mayor and Aldermen with a Crown-appointed barrister as Recorder.
• 1801: Supreme Court at Madras. 1823: Supreme Court at Bombay.
• Each on the Calcutta model: English barristers appointed by the Crown, five jurisdictions, King's Bench powers, appeal to the King in Council.
• By 1823 there were six superior courts, three Crown and three Company, in three Presidencies, none subordinate to another.
• Section 1 of the Act of 1861 authorises the Crown to erect the High Courts at the three Presidencies at such time or times as may seem fit, because their histories were separate.

Test yourself

1. When did each Presidency Town get a Supreme Court? Calcutta by the Charter of 1774, Madras in 1801, and Bombay in 1823.

2. What was a Recorder's Court, and when were they established? A court consisting of the Mayor and Aldermen with a Recorder who was a barrister appointed by the Crown, given jurisdiction of the kind the Supreme Court had at Calcutta. They replaced the Mayors' Courts at Madras and Bombay in 1798.

3. Why did Bengal get a Supreme Court first? Because the Regulating Act of 1773 was directed at the government of Bengal, which had acquired the territorial revenues, and section 13 authorised a court at Fort William only.

4. How many superior courts were there in India by 1823, and how were they related? Six: three Crown courts, the Supreme Courts of Calcutta, Madras and Bombay, and three Company courts, the Sadar Adalats of the three Presidencies. None was subordinate to any other, and there were two separate appellate routes to England.

5. Why does section 1 of the Act of 1861 allow the High Courts to be created at different times? Because the three Presidencies had separate histories, separate charters and separate practice, and Parliament left the Crown to deal with each in its own time by separate letters patent.