CONTENTS

INTRODUCTION ............................................................................................................................................. 2
HISTORICAL BACKGROUND ........................................................................................................................... 2
FACTORS LEADING TO ESTABLISHMENT OF MAYORS COURT ...................................................................... 4
MAYOR’S COURTS UNDER THE CHARTER OF 1687 AND 1726...................................................................... 7
CHARTER 1726 .............................................................................................................................................. 8
COMMITTEE REPORT 1772 ........................................................................................................................... 9
MADRAS MAYORS COURT (1688) ................................................................................................................. 9
THE CHOULBY COURT ................................................................................................................................. 10
THE HIGH COURT OF JUDICATURE – ........................................................................................................... 11
CONCLUSION............................................................................................................................................... 11
REFERENCES ................................................................................................................................................ 12

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 INTRODUCTION

The British rule in India is responsible for the development of the Common Law based legal
system in India. In this lesson we will learn more about the administration of justice and law
reforms during the British period in India. The development of the British Common Law based
system can be traced to the arrival and expansion of the British East India Company in India in
the 17 Century. The East India Company gained a foothold in India in 1612 after Mughal
emperor Jahangir granted it the rights to establish a factory in the port of Surat. In 1640, the
East India Company established a second factory in Madras (now Chennai) on the southeastern
coast. Bombay Island, a former Portuguese outpost was gifted to England as dowry in the
marriage of Catherine of Braganza to Charles II and was later leased to the East India Company
in 1668. In the early seventeenth century, the Crown, through a series of Charters, established a
judicial system in the Indian towns of Bombay, Madras and Calcutta, basically for the purposes
of administering justice within the establishments of the British East India Company. The
Governor and the Council of these towns formulated these judicial systems independently. The
Courts in Bombay and Madras were called Admiralty Courts, whereas the court in Calcutta was
called Collector's Court. These courts had the authority to decide both civil and criminal
matters. Interestingly, the courts did not derive their authority from the Crown, but from the
East India Company. The Charter issued by King George I on 24 September 1726 marks an
important development in Indian legal history. This Charter forms the basis for the
establishment of Crown's courts in India. The British East India Company requested King George
to issue a Charter by which special power could be granted to the Company.

HISTORICAL BACKGROUND

The expansion of its establishments brought new challenges to the East India Company. The
Company requested the King to issue a Charter by which special powers could be granted to it.
The Company was granted Charter by King George I in 1726 to establish “Mayor's Courts” in
Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Mayor's Courts
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were not courts of the Company, but courts of the King of England. Mayor's courts superseded
all existing courts established in the above places. The Mayor's Courts were authorized 'to try,
hear and determine all civil suits, actions and pleas' that may arise within the three towns or
within the factories of the Company. The Court consisted of a Mayor and nine Aldermen, seven
of whom, including the Mayor, were required to be naturally born British subjects. Aldermen
were elected from among the leading inhabitants of the settlement to hold the position for life.
The Mayor was elected from the Aldermen. The Mayor's Courts contributed significantly to the
formulation of a uniform pattern of judicial functioning in India. The Mayor's Courts
administered English law, which was assumed to be the lex loci ('law of the place') of the
settlement. The inhabitants of the settlement were governed by the English law, irrespective of
their nationality. English law did not extend outside the settlements, and there the Indians
were subject to their own laws. The Charter of 1726 did not specify the law to be applied by the
Mayor's Courts. The Charter merely stated that the Court was required to 'give judgment and
sentence according to justice and right'. However, based on the past practice and in the light of
the 1661 Charter, the then existing English law, or principles of English Common Law and Equity
were applied. It is generally understood that the Charter of 1726 indirectly brought into
application the laws of England- both Common Law and statute law, into the three British
Settlements in India. This is one of the distinctive outcomes of the 1726 Charter. Appeals from
the Mayor's Court were made to the Court of Governor and the Council. The Governor and five
members of the Council were appointed Justices of Peace and constituted a criminal court of
Oyer and Terminer (a partial translation of the Anglo-French oyeretterminer which literally
means 'to hear and determine'). The Court of Governor and Council were required to meet four
times a year for the trial of all offences, except that of high treason. However, a second appeal
in cases valued at 1,000 pagodas (see picture below) or more, was available to the King-in-
council in England. The Mayor's Courts established under the Charter of 1726 had severe
limitations. There was no clarity regarding the applicable law, although the Company made
considerable efforts to apply the English Law. The jurisdiction of the Mayor's Court over natives
was relatively uncertain. In several instances, the Mayor's Court annoyed the natives by
applying the principles of English Law, completely disregarding their personal laws and customs.
In 1746, the French occupied Madras, after which the functioning of the Mayor's Court was
suspended in that City. However, the French surrendered Madras to the British in 1749 after
the conclusion of the peace treaty of Aix-La Chappelle. Using this opportunity, the Company
requested the King to remove some difficulties related to the 1726 Charter. King George II
issued another Charter on 8 January 1753, which by and large left the 1726 Charter intact. By
virtue of the 1753 Charter, the Mayor Courts were re-established in the three settlements with
the same jurisdictions and powers as in the Charter of 1726. To avoid disputes between the
Governor and Council, the Charter brought the Mayor's Court under the control of the
Governor and the Council. The Mayor, instead of being selected by the Aldermen was to be

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selected by the Governor and Council. Furthermore, suits and other actions by natives were
expressly excluded from the jurisdiction of the Mayor's Court unless both parties had submitted
them to their determination. The jurisdiction of the Mayor's Court was restricted to suits of the
value of over five (5) pagodas. It is notable that Courts such as the Mayor's Courts were
established for deciding mainly the disputes of the British natives or other foreigners.
Therefore, in all the three settlements, different types of courts existed to decide the cases of
the natives. In Madras, the Choultry courts existed to decide cases up to the value of 20
pagodas. In other words, Choultry courts heard, by and large, petty cases and continued up to
the year 1800. In Calcutta, the natives were subject to the Zamindars' courts. The East India
Company as the Zamindar, administered these courts. Zamindars' courts decided civil matters,
viz, issues involving land, property and personal wrongs. It is also reported that the Zamindar's
Courts and the Mayor's Court had disputes relating to jurisdiction on certain civil matters.
Justices of Peace were appointed in Calcutta to decide criminal matters. However, in Bombay
no separate courts were established to decide disputes among the natives. The reason was that
the Company claimed complete sovereignty over the island and did not want to treat the
natives differently.

FACTORS LEADING TO ESTABLISHMENT OF MAYORS COURT

Before 1726 there were different judicial system functioning in the British Settlement, which
were increased in number by 1726. As a result the servants of the many, working at such
different settlements were subject to different sets of courts. There was, thus a lack of
uniformity in the British settlements, for the same offence wild entail different and sometimes
Contrary Penal Consequence. There was also another factor which compelled the Company to
have a uniform law.

There were quite important distinguishing feature between the Company’s Mayer’s Court and
the Crown’s Mayor’s Courts established under the Charter of 126. The main differences are
given below,

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(1) The Mayor’s Court under the Charter of 1687 was created by the Company while the
Mayor’s Courts under the Charter of 1726 drew their power directly from the Crown. Thus the
latter were on a superior footing than the former

(2) The Charter of 1687 created only one Mayor’s Court at Madras; it did not touch the judicial
system prevailing in other settlements, presidencies under the Company. The Charter of 1726
created Mayor’ Courts at all the three presidencies that is Madras, Calcutta and Bombay thus,
for the first time, establishing a uniform judicial system.

(3) The Mayor’s Court established under the Charter of 1687 enjoyed both civil and criminal
jurisdiction. While the mayor’s courts established under the Charter of 1726 mayor’s Courts
established under the Charter of ( were given jurisdiction in civil matters including testamentary
and probate of wills jurisdiction, Criminal matters were left to be decided by am within the
jurisdiction of, Governor-in-Council which acted as a court in such matters.

(4) The Charter of 1726 made, for the first time, provisions for a second appeal to the King-in-
Council which became a precursor of the Privy Council later on. Thus under this Charter, the
first appeal could be filed before the Governor-in-Council and the second (although in some
cases) appeal could be taken to the King-in-Council in England. The Charter of 1687 did not
make such provision. The appeal from the Mayor’s court could be filed before the Admiralty
Court.

(5) The Mayor’s Court established under the Charter of 1687 made a provision for the
representation of the natives on the court. The Crown’s Mayors Courts did not have any such
representation, though there was a provision I for the same in the Charter of 1726.

(6) No doubt, the Crown’s Mayor’s Courts established under the charter of 1726 were definitely
superior courts so far as their status is concerned, but in strict judicial and legal manner, the
Company’s Mayor’s Court was better equipped, for there was a provision for a lawyer-member
who was to be called the Recorder. The Charter of 1726 although it purported to improve the
judicial system in India, did not make any such provision. . Thus the Courts established in 1726
were mostly composed of Company’s civil servants who did not have sufficient experience in
legal matters.

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(7) There was yet another important distinction between the two Mayor’s Courts. The
Company’s Mayor Court evolved its own procedure and dispensed justice in accordance with
the rules of common sense, equity and good conscience. It avoided the intricate procedural
technicalities. But the Charter of 1726 which introduced the British laws into India brought all
the legal technicalities of the British Courts of law. Thus the entire gamut of British laws and its
procedure were foisted on the Courts established under the Charter of 1726.

(8) The Charter of 1726, in a way, did away with the concept of separation between the
executive and the judiciary in criminal matters. The Governor-in-Council acted as the criminal
court while the Mayor’s Courts handled only the civil matters and testamentary and probate of
wills cases. On the other hand, the Mayor’s Court at Madras was invested with power to handle
all civil and criminal matters and appeals from its decisions went to the Admiralty Court rather
than the Governor-in-Council.

The Charter of 1726 also constituted a Mayor’s Court for each of the presidency towns
consisting of a Mayor and nine Aldermen. Three of them i.e., the Mayor or senior Alderman
together with two other Aldermen were required to be present to form the quorum of the
Court. The Mayor’s Courts were declared to be present to fan the quorum of the Court. The
Mayor’s Courts were declared to be Courts of record and were authorized to try, hear and
determine all civil actions and pleas between party and party. The Court was also granted
testamentary jurisdiction id power to issue letters of administration to the legal heir of the
deceased person. It was authorized to exercise its jurisdiction over all persons living in the
presidency own and working in the Company’s subordinate factories.

Appeals from decisions of Mayor’s Court were filed in the Court of Governor and Council. A
second appeal in cases involving 1000 pagodas or more could be made to king-in-council in
England. The court of Governor and Council also decided criminal cases.

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 MAYOR’S COURTS UNDER THE CHARTER OF 1687 AND 1726

Comparison— Apart from the apparent similarity of names there was a vast difference between
the two Charters. The main differences may be enumerated as under:

(1) The Charter of 1687 applied to Madras only while the Charter of 1726 applied to all the
three Presidencies.

(2) The Mayor’s Court established under the Charter of 1726 had the jurisdiction in Civil matters
only in addition to its testamentary and probate jurisdiction, while the court under the Charter
of 1687 had the jurisdiction in criminal matters also.

(3) Appeals against the judgments of the Mayor’s Court under the Charter of 1687 went to the
Court of Admiralty while from the Mayor’s Court under the Charter of 1726, to the King-in-
Council.

(4) The Mayor’s Court of 1687 was a Court of the Company while the court established under
the Charter of 1726 was the Court of the Crown.

(5) The Mayor’s Court under the Charter of 1687 was better in one respect that it had a lawyer-
member called Recorder while in the Court under Charter of 1726 there was no provision for
any lawyer-member.

(6) In procedural matters, the court under the Charter of 1726 had to observe the technicalities
of the courts in England while the Court under Charter of 1687 was guided by its own
procedure of convenience.

(7) In the Court under Charter of 1687 there was good representation of Indians while under
the Charter of 1726 in spite of the provision for two Indian members none was ever appointed
in practice.

(8) Under the Charter of 1726 the criminal jurisdiction was completely assigned to the
executive, i.e., the Governor and Council, while under the earlier Charter it belonged to the
Mayor’s Court and the Admiralty Court.

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 CHARTER 1726

The Mayor's Court had civil and probate (will) Jurisdiction and was not subject to the arbitrary
will of the executive. Madras had a corporation and Mayor's Court from 1688 but its criminal
jurisdiction was taken away. The Charter of 1726 undermined the powers of the Mayor's Courts
and made the local Governor in council all powerful. Originally Mayor's Court was a court of
record with criminal and civil jurisdiction. It was to deal with offences which imposed fine,
imprisonment or corporeal punishment. A right of appeal to the Court of Admiralty was
guaranteed, in Civil and Criminal cases. The Mayor and two Alderman formed the quorum of
the Mayor's court sitting once a fortnight. The jury system appears to have been followed in
Mayor's court in criminal proceedings. But, under the Charter of 1726, the Mayor and Alderman
of each corporation constituted a court. The Court met not more than thrice a week. The
process of the court was given testamentary jurisdiction. Probate and letters of administration
could be granted by it. It was bound by the laws and procedures of English Courts.

The Corporation and the Mayor's court, were completely independent of the Executive. Hence,
the Charter of 1726 introduced independence of the judiciary to a considerable extent. The
Crown's Charter of 1754 introduced certain changes. The Mayor was selected by the Governor
in Council. Hence, he was a nominee of the Govt. The aldermen were also chosen by Governor
in criminal court. Requests Courts were introduced for cheaper and speedy trials in minor cases
up to Rs. 15/-. This court was subservient to the Council. These charters introduced English
procedural laws in India.

The Mayor's Court entertained suits between natives if both the parties agreed. The object was
not to interfere with the local people. Hence, the court was mainly available to the Europeans.
The result was there were no courts to the Indian people. The structure of the courts was as
follows:

Civil cases
-Court of Requests.
-Mayor's Courts
-Privy Council.

Criminal Cases
-Justice of the Peace.
-Court of Quarter Session.

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-Defects of the Judicial system of 1753

i) As the Governor in Council was appointing the judges, the judges were subservient and
could not render justice when the E.I. Company was' a party.
ii) Judges were not aware of the civil and criminal law.
iii) The Mayor & others had private trade activities.
iv) Jurisdiction was confined to Presidency towns only. Hence, in Moffusils Englishmen could do
injustice & escape.

COMMITTEE REPORT 1772

In 1772, The House of Commons in England, appointed a Committee which reported against the
efficiency of Mayor's Court. The Regulating Act of 1774 passed by British Parliament replaced
Mayor's Court with the Supreme Court of Judicature at Calcutta. This consisted of professional
lawyers appointed as judges, by the Crown, Hence, the court became free from the
subordination of the Company. Later the Mayor Courts at Madras
and Bombay were also replaced by Supreme Courts.

MADRAS MAYORS COURT (1688)

At the time in England there they got London corporation and they got London mayors court as
per the British Law. That time municipal corporation enjoyed the Judicial power also company
issued the charter and started Madras corporation utilizing the power given by British Crown.

In the year 1687 Company established Madras Corporation and Mayor’s Court was the
part of this corporation. In the year 1686 Madras government levied a house tax on the Madras
City population to repair the City wall. But people of Madras, Local people did not pay tax and
Company faced problems and difficulties to collect tax, after this company decided that to
make the tax collection easy a body should be formed consisting of English men as well as Local
Indians population so it will become easy for the company officials to collect the tax.

The corporation came in to existence on September 29 1968 which consists of a Mayor,

12 Alderman and 60 to 120 Burgesses. It was decided that every year new Mayor will be
elected from Alderman by Alderman and Burgesses and retiring Mayor can be re-elected by
them.

The Alderman and Burgesses got the power to remove the Mayor if he is unable to
perform his duties, only Englishman becomes the Mayor. The Alderman hold the office as long

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as they stayed in Madras City indirectly they hold the office for life long. Mayor, Burgesses
holds the power to remove the Alderman from office also if he did not perform well.

Among the Alderman minimum three were required to be British Servants of the
Company and other nine can belong to any nationality or religion.

The charter appointed 29 Burgesses and then remaining Burgesses were appointed by the
Mayor and Alderman. Among 1st 60 Burgesses the caste head were selected as the Burgesses.

This was the nature of 1st corporation the Mayor and three Senior Alderman were to be the
justice of the peace. The Mayor and Alderman were to form a court of record which was
authorized to try civil as well as criminal case. This court was known as Mayors court.

The Mayor’s Court was authorized to give following punishments –

Fine, imprisonment and corporeal punishment. The convinced person gets right to file appeal to
the Admiralty Court.

As Mayor and Alderman did not have legal knowledge the provision was made for the
appointment of the recorder of the Court. He helped the Mayor regarding the cases and he also
got the power to vote just like Alderman. The Recorder of the Court was required to be skillful
in the law as well as the servant of the Company. The Charter appointed the Judge Advocate Sir
Biggs as the 1st Recorder. Only in the year 1712 the court got power to give death sentence to
native people.

The Mayor Court did not follow uniform punishment for the same crime. It depends on the
Judge discretion for this, the reason was that the Mayor and his team did not have any legal
knowledge. Sir Biggs got the experience of working as a recorder in the London but here in
Madras the problem was that Sir Biggs sat in the Admiralty Court were went. But company
ignored this fact after the death of Biggs. No recorder was appointed. Like this in the period
1686 to 1726 in Madras three Courts Functioned.

After 1704 Governor and Council heard the appeals from the Mayors Court as Admiralty Court
to stop function. In this period also the Criminals were so long kept in jails, that even people
forget the crimes. Justice system was very slow and no one bothered. The capital punishment
was given by hanging. Robbery was punished with death, witch craft was punished with fine.

THE CHOULBY COURT

The old Choulby Court was recognized and allowed to continue by the Governor. The number of
Judges was increased to Three – Two Judges were required to preside over the trail of cases.
The Court met 2 days in each week. The court was empowered to try civil cases up to 50

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Pagodas (Pagoda was a gold Coin, One Pagoda was equivalent to 3 Rupees) and petty criminal
cases. The High Court of Judicature was authorized to hear appeals from Choulby Court.

THE HIGH COURT OF JUDICATURE –

The court of Governor and Council was designated as the High Court of Judicature. The Court
met twice a week. The Court decided all Civil and Criminal cases with the help of jury of 12 men.

Meaning of the Words –

1) Mayors –

The Name of a court usually established in cities, composed of a Mayor, recorder and
alderman. Generally having Jurisdiction of offence committed with in the city.

2) Alderman –

A member of the municipal, legislative body in a town or city. In many jurisdiction, a

member of the higher branch of the municipal or borough council in England and Ireland before
1974. One of local council elected by the other Councilors.

3) Burgesses –

A magistrate of a borough generally the chief officer of the corporation who performs with in
the borough (administrative division) the same kind of duties which a mayor does in a city. In
England the word is sometimes applied to all the inabilities of a borough who are called
burgesses. Sometimes it signifies the representatives of a borough in parliament.

CONCLUSION

The story of India’s modern judiciary begins with the Mayor’s courts. Under the Royal Charter
of 1661, the Governor-in-Council of each Presidency {That time they had two presidencies viz.
Madras and Surat} were empowered ‘to judge all persons belonging to the said presidency or
that shall live under them in all causes, whether civil or criminal, according to the laws of this
Kingdom and to execute judgement accordingly’. This power was not exercised for at least two

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decades at Madras. In 1678, the Governor-in-Council decided that they should have two sittings
per week to hear and judge all cases concerning Europeans and Indians as per the according to
English Law. Meanwhile in 1687, another charter authorized the company to establish
municipality at Madras to mark the beginning of territorial character of Company’s rule in
Madras.

In exercise of this power, the company established a municipality. The Mayor and Aldermen
were recognized as a “Court of Record” with power to try the civil and criminal cases in their
territories. The Mayor and three of the twelve Aldermen were so called to be the “Justices of
the Peace”. Similar courts were established in successive presidencies at Bombay and Calcutta.

Under the Charter of 1726, a Mayor’s court was established at each presidency town viz.
Madras, Bombay and Calcutta. The difference between the old courts and this new court was
that the earlier Mayor’s courts were of the Company but the newer courts were of the King of
England. The term in the charter made is implicit that English Law had to be applied in the
Mayor’s Courts in India.

However, meanwhile French occupied Madras and this system remained suspended till 1749
when French surrendered Madras back. The Charter of 1753 was passed later to remove the
difficulties of previous charter including the courts. Under the new charter, the Mayor’s courts
were put under the Governor-in-council to avoid disputes between the two. However, still
judiciary suffered from lack of legal knowledge, overburdened executive, failure of impartial
judgment, lack of local judges etc.

REFERENCES

M.P Jain

Pleadings of mayor’s court

Administrative system of india: vedic to 1947

Legalbites.com

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