What Went Wrong, and the Charter of 1753

The occasion was accidental and the reform was not. Madras had to have its court re-created whatever anybody thought of the 1726 scheme. What turned a re-creation into a reform is the second recital: the defects found by experience, which are the three problems set out above.

And the charter provided for the same thing happening again. It made provision for the event of the Company losing for a time the possession of any of its principal settlements, and the provision was needed almost at once: Calcutta was taken by Siraj-ud-Daula on 20 June 1756 and was not recovered until 2 January 1757, by the forces of the Crown and the Company under Colonel Clive and Admiral Watson. Module I's next chapters begin in the Bengal that came out of that.

What the Charter of 1753 did

It reconstituted the courts under the Company's hand. The Mayors' Courts at Madras, Bombay and Calcutta were re-established, again with a Mayor and nine Aldermen, seven of them natural-born British subjects and the other two permitted to be foreign Protestants, subjects of any country in amity with England. The decisive change is in the appointment. Where the 1726 charter had left the corporation to fill its own vacancies, in 1753 an Alderman who died or was removed was replaced by a person nominated by the Governor and Council, and an Alderman might be removed by the Governor or President and Council, subject to an appeal to the King in Council.

It took Indian disputes out of the Mayor's Court. This is the change to remember. The court's civil jurisdiction was granted in the same wide words as before, "all Civil Suits, Actions and Pleas between Party and Party", but with an express exception: "except such Suits or Actions shall be between the Indian Natives of Madraspatnam only, in which Case We will that the same be determined among themselves, unless both Parties shall by Consent submit the same to the Determination of the said Mayor's Court." The same exception was written into the Bombay and Calcutta clauses.

Read it carefully, because two things are being done at once. A suit between two Indians is outside the court unless both of them agree to bring it there. And where they do not agree, the charter does not send them anywhere in particular: it says the matter is to be "determined among themselves", which means by their own caste, community or arbitration arrangements, and it says nothing about what happens if those fail.

It created Courts of Requests. At each of the three settlements a Court of Requests was established, so called because it was the old English name for a small-debts court, "for the providing a more easy and speedy Method for recovering of small Debts". The Governor or President and Council were to appoint not fewer than eight and not more than twenty-four of the principal inhabitants to be Commissioners. Any three or more of them sat every Thursday from ten to twelve in the forenoon, or longer if business required, and heard and determined in a summary way, meaning without the formal pleadings and process of a full court, all suits where the debt or matter in dispute did not exceed five pagodas. The commissioners held office for two years, in rotation. The Mayor's Court was forbidden to proceed on any cause of suit not exceeding five pagodas.

It kept the appellate ladder, with a repair. The appeal from the Mayor's Court still lay to the Governor or President in Council, whose decision was final up to 1,000 pagodas, and above that to the King in Council. Two improvements were made. Where the voices on the appeal were equal, the Governor or President, or in his absence the senior disinterested councillor, had two voices; and where there were not enough disinterested members of Council to hear the appeal at all, the party aggrieved might appeal directly to the King in Council within twenty-one days of the Mayor's Court decree, even if the sum was below 1,000 pagodas. Interest on the security was no longer fixed at eight per cent but at the current rate at the time of the decree.

It made the courts enforce each other's orders. If the Mayor's Court refused or neglected to execute a judgment given on appeal within fourteen days of being asked, the Governor or President and Council were required to execute it themselves.

A worked example

Two Hindu merchants of Calcutta, Gopal and Krishna, quarrel in 1755 over an account. Gopal wants to sue.

Before 1753, he would file in the Mayor's Court, which would try the suit and apply English law to it, whether or not either party had any notion what English law required.

After 1753, the Mayor's Court cannot take the suit at all, because it is between Indian natives only. It becomes triable there only if Krishna also consents. If he does not, Gopal's remedy is whatever his community provides: the arbitration of elders, the caste panchayat, or nothing.

Change the facts. Gopal sues an English trader for three pagodas. The Mayor's Court is forbidden to proceed, because the sum does not exceed five pagodas. He must go to the Court of Requests, where three commissioners will hear him on a Thursday morning and decide the matter summarily.

Change them again. Gopal sues an English trader for 1,200 pagodas and loses in the Mayor's Court. He appeals to the Governor in Council; but four of the councillors have dealings with the defendant and cannot sit, and there are not enough disinterested members left to hear the appeal. Under the 1753 charter Gopal may go straight to the King in Council, within twenty-one days of the Mayor's Court decree.

Distinctions worth having straight

What beginners get wrong

"The 1753 charter abolished the Mayors' Courts." It re-established them. What it altered was who appointed their members, what they could hear, and what was taken away to a smaller court.

"1753 gave Indians their own courts." It did not. It took their disputes out of the Mayor's Court and left them to be "determined among themselves". That is an exclusion, not a provision, and the absence of any forum is one of the reasons the Supreme Court in 1774 found itself dealing with Indians at all.

"The Court of Requests was an appellate court." The opposite: it was the lowest court, for debts of five pagodas or less, sitting one morning a week and deciding summarily.

"After 1753 the Mayors' Courts were Company courts again." Not in form. The charter was still a Crown charter under the Great Seal, and the appeal to the King in Council survived. What changed was the practical control, through the appointment and removal of Aldermen by the Governor and Council. That distinction between the form of a court and the practical control of it is worth carrying into Module III, where the same question is asked about the independence of the judiciary today.

Limits and criticism

The 1753 charter is a settlement in the Company's favour and it should be described as one.

It solved the Company's problem, which was control, more thoroughly than it solved the inhabitants' problem, which was justice. Excluding suits between Indians removed the grievance of English law being applied to them, at the price of leaving them without any court at all in the settlement where they lived. Taking small claims to a court of commissioners sitting for two hours a week was an improvement in speed and a reduction in the quality of the tribunal.

And the criminal side was untouched. The Governor and the five senior members of Council remained the criminal court, which was the arrangement Parliament would find intolerable twenty years later.

Quick revision

• September 1746: the French took Madras, which put an end to the Mayor's Court there; restored in 1749 under the Treaty of Aix-la-Chapelle. The new charter was granted for all three Presidencies because defects had been found by experience in the Charter of 1726.
• Charter of 8 January 1753 (26 George II), amending the Charter of 1726.
• Mayors' Courts re-established; Mayor and nine Aldermen, seven natural-born British subjects, the other two may be foreign Protestants.
• Aldermen now nominated by the Governor and Council, and removable by them subject to appeal to the King in Council.
• Suits between Indian natives only are excluded, to be determined among themselves, unless both parties consent.
• Courts of Requests at each settlement: 8 to 24 Commissioners, any three sitting every Thursday, ten to twelve, deciding summarily, for suits not exceeding five pagodas. The Mayor's Court may not take such a suit.
• Appeal ladder kept: Governor in Council, final to 1,000 pagodas, then the King in Council; plus a direct appeal within 21 days where the Council has no disinterested quorum.

Test yourself

1. Name the three changes the Charter of 1753 made, in one sentence each. It put the appointment and removal of Mayors and Aldermen in the hands of the Governor and Council; it excluded suits between Indian natives only from the Mayor's Court unless both parties consented; and it created Courts of Requests to decide suits up to five pagodas summarily.

2. What happened to a dispute between two Indians in Calcutta after 1753 if one of them refused to consent? The Mayor's Court could not hear it. The charter said such matters were to be determined among themselves, and provided no forum, so the parties were left to their community's own arbitration or to no remedy at all.

3. What was a Court of Requests, who sat on it, and what could it decide? A small-causes court at each Presidency Town, staffed by between eight and twenty-four commissioners chosen by the Governor and Council from the principal inhabitants, any three of whom sat every Thursday from ten to twelve and decided suits summarily where the debt or matter did not exceed five pagodas.

4. In what circumstances could a litigant go to the King in Council in a case worth less than 1,000 pagodas? Where there were not enough disinterested members of the Governor's Council to hear the appeal, so that no judgment could be given. The party aggrieved might then appeal directly, within twenty-one days of the Mayor's Court decree, whatever the amount.

5. Was the Mayor's Court after 1753 a Crown court or a Company court? In form a Crown court: the charter was granted under the Great Seal and the appeal to the King in Council remained. In practice the Company controlled it, because the Governor and Council appointed and could remove its Aldermen.