TOPIC 4- CHARTER OF 1726

HEADNOTES-
Presidency Towns had two kinds of Court- Mayor’s court and Admiralty Court
Charter of 1687- Brought by Company
Charter of 1726- Brought by the Crown that established the Mayor’s Court in Bombay and
Calcutta (establishment of corporations) to EIC
The mayor is the head of Municipal Corporation.
Main Reasons for bringing the Charter of 1726
1 Mayor + 9 aldermen (7 British natural born British and 2 aldermen of any other nationality)
Criminal Jurisdiction- Petty Jury and Grand Jury (23 persons)
Law making power with directors of Company prior to Charter of 1726, shifted the power to
Governor and Council subject to approval from Company
INTRODUCTION-
Before 1726 judicial administration in the East India Settlement was not of a high order. There
was no separation between the judicial and executive powers. The judicial system in all the
settlements of the East India Settlements was not uniform; the courts received authority from the
East India Company and not the British crown. The courts were supposed to use English law but
they were unable to do so because they were laymen and had no knowledge of the law. Cases
related to testamentary and intestate succession did not fall in the jurisdiction of any of the courts
in the East India Settlement. Due to this most of the workload fell on the Crown’s Privy Council.
Due to the increase of trade and commerce of the East India Company in the Indian presidency
towns (Bombay, Madras, and Calcutta) concentration of wealth began to take place which in turn
increased the population of these towns. In order to maintain law and order in these towns and to
bring about a uniform judiciary system, the Charter of 1726 was introduced by King George I on
24 September 1726.
Main Reasons or Aims of Issuing the Charter of 1726
The main reasons which necessitated the Charter of 1726 are as follows —
1. The judicial administration and the working of the courts in the three Presidency towns
of India was unsatisfactory.
2. With the growth in Company’s trade and commercial activities in India, the population
of British Settlements had increased considerably, and therefore, more cases were coming
to the courts for adjudication.
 3. The Company desired that the power of courts should be derived from a competent
authority so that their decisions would have a binding force and uniformity in judicial
administration could be achieved.
4. Encouraged by the successful working of the Corporation at Madras, the Company
wanted to establish similar Corporations at Bombay and Calcutta also.
5. Many Englishmen who settled in India died leaving behind them considerable movable
and immovable property. This created problems before the Company relating to
distribution and disposal of their assets. Although the Mayor’s Court of Madras
established in 1687 was empowered to decide testamentary cases but its decisions were
not recognised by the Court in England because it was a Court of the Company and not of
British Crown. Therefore, the Company was involved in unnecessary litigation in
England at the instance of the relatives of the deceased who died interstate in India. To
avoid this, there was a need of a court in each Presidency which could take cognizance of
testamentary and interstate succession cases deriving their authority from the British
Crown. Thus, in order to solve the above mentioned problems and to establish an
effective administration of justice in the Company’s settlements in the three presidencies
the Judicial Charter was granted by the British King George I on September 24, 1726 at
the instance of East India Company.
Importance of Charter of 1726
The Charter of 1726 had made a long departure from the earlier charters and had made
some fundamental changes in the judicial administration. The charter for the first time
established the Crown’s Court in India. Hitherto whatever courts existed they had their
origin from the company’s but the courts established by this Charter were the Royal
Courts having full recognition in British legal system. The Charter brought about a
uniform judicial system in all the three presidencies and different types of systems
existing till then were abolished. For the first time the jurisdiction of the Privy Council
was extended to this country. Here lies the beginning of the introduction of English laws
into India through judiciary. For the first time a legislature for each presidency with the
power of making necessary laws was established by this charter. The Charter of 1726 is
also very important in the sense that this charter introduced into presidency towns the law
of England – both Common and Statutory as it then stood. Thus, on the basis of the facts
stated above, we can say that the Charter of 1726 makes a turning point in the legal
history of India.
Main features of charter of 1726
1. Establishment of corporation.
2. Each presidency was to have a corporation consisting of a Mayor and nine Aldermen.
3. The mayor was to be elected annually and Mayor could hold his office for 1 year.
4. The Alderman could reside in the office or presidency city for the rest of his life. He could
be removed by the Governor and the Council on just cause. Such expulsion could be
appealed to the king in council in England.
Provisions of the Charter of 1726
1. Establishment of a Corporation at Bombay and Calcutta– The Charter provided for
the establishment of a Corporation at Bombay and Calcutta like the one which already
existed in Madras. Thus, each of the Presidency towns was to have a Corporation
consisting of a Mayor and nine Aldermen. The Mayor and seven of the Aldermen were to
be natural born British subjects while the two Aldermen could be of any nationality. The
first Mayor and Aldermen were to be appointed by the Charter itself. Thereafter, the
Mayor was to be elected annually by the Aldermen and the retiring Mayor on an annual
basis amongst the Aldermen. The Aldermen were to hold office for life or till their
residence in the Presidency town. The vacancy among the Aldermen was filled by the
Mayor and the Alderman from the inhabitants in the particular presidency town. They
could, however, be removed by the Governor in Council on a reasonable cause. An
appeal against such a removal could be made to the King in Council in England
(the Privy Council of the British Crown). The Mayor and all the Aldermen had to take
an oath of allegiance to the office before the Governor and Council.
2. Civil Administration and establishment of Mayor’s Court in Presidency Towns –
According to the Charter of 1726 the Mayor court was to be established in
each presidency town. The members of the Mayor Court included the Mayor and the
Aldermen of the Corporation of the Presidency Town. The quorum was constituted by the
Mayor or the Senior Aldermen along with two other Aldermen. The Mayor and nine
Aldermen of each Corporation formed a Court of Record which was called the Mayor’s
Court’. Under the Charter of 1726, the Mayor Court could hear all civil cases arising in
the Presidency Town and its subordinate factories.
Under this Charter, the Mayor’s Court also had jurisdiction to hear cases of
testamentary succession, to issue letters of administration to legal heirs of the deceased or
his principal creditor, or to any other person who the court finds fit. The Mayor’s Court
was also given further powers to provide Probates of wills of the deceased and to punish
any person guilty of contempt.
It could grant probates of will and Letters of Administration in case of intestacy. The
Court was to hold its sitting not more than three times a week. An appeal from the
decision of the Mayor’s Court lay to the Governor and Council in cases for less than 1000
pagodas. But in cases involving the value of subject-matter above 1,000 pagodas, a
further appeal lay to the King in Council (The Crown’s Privy Council) in England.
Being a Court of Record, the Mayor’s Court could punish persons for its contempt. The
process of the Court was to be executed by the Sheriffs, the junior members of the court
who were initially nominated but subsequently chosen annually by the Governor
and Council. The Governor and Council were to appoint a Sheriff who was the officer of
the Mayor’s Court. His tenure was for a period of one year. On the written complaint
provided by the plaintiff, the court issues the summons by directing the sheriff to order
the defendant to appear in court on a set date and time fixed by the court. If the
defendant doesn’t comply with the orders of the court, the court would issue a warrant
directing the sheriff to arrest the defendant and present him before the court. The
court could grant release to the defendant on bail or security. Warrants of execution were
issued by the Court to the implementation of judgements. On receiving the warrant the
sheriff was to implement its judgement.
There was no specific mention in the Charter of 1726 as to the law which was to be
applicable in the Mayor’s Court but since the earlier Charter of 1661 provided that justice
was to be administered in accordance with the English law, it was presumed that the same
law was to be followed by the Mayor’s Court in deciding the cases.
3. Criminal Administration and establishment of Quarter Sessions – The Governor
and five senior members of the Council were appointed as Justice of Peace in each
Presidency for the administration of criminal justice. The justice of peace could hear
petty criminal offences and punish and arrest offenders. They also constituted a Court of
Oyer and Terminer and Gaol Delivery and were also required to hold Quarter Sessions
for trial of all offences excepting high treason for at least four times a year. This was the
first time English ideas and procedures of criminal justice were introduced in India. The
session of the court was held four times a year, for the trial of all offences except the
offence of high treason committed within the Presidency and subordinate factories. These
were to be heard with the help of a jury. The procedure of the courts has to be similar
to the procedure of similar courts in England. The Charter of 1726 introduced the trial of
criminal offences with the help of ‘Grand’ and ‘Petty’ juries. Thus, technical forms and
procedures of criminal judicature of England were introduced through this Charter in
India.
4. Jury Trial in Criminal Cases – The Charter of 1726 provided that criminal cases in
Presidencies be decided with the help of Grand Jury and Petty Jury. The Grand Jury
which consisted of 23 persons, was entrusted with the task of presenting persons
suspected of having committed a crime. Besides, before the commencement of trial, all
the evidence of the prosecution, accusation or indictment was placed before the Grand
Jury, who was to return a verdict whether there was a case for trial or not. In case the
Grand Jury returned a verdict of ‘no Prima facie case’, the accused was acquitted without
trial.
5. Conferment of Legislative Powers on Governor and Council– For the better
governance of the presidency towns the Governor and Council of each presidency town
were given powers to make their own bylaws, rules, and ordinances for the regulation of
the Corporations and inhabitants of the Presidencies. They would also prescribe
punishment for the breach of such laws and rules. The bye-laws, rules and ordinances so
framed and the punishments prescribed for breach thereof were to be reasonable and not
contrary to the laws of England and they could not be effective unless approved and
confirmed by the Company’s Court of Directors in England.
Merits of the Charter of 1726
1. Uniformity in Judicial System – This Charter has, for the first the established
Mayor’s Court in all the three presidencies i.e. Calcutta, Bombay and Madras. Thus,
Uniform judicial system was introduced in all the three presidency towns of Calcutta,
Bombay, and Madras.
2. Establishment of Crowns Court-This Charter has, for the first time established the
courts of Crown. The courts established so far were the courts of company. Thus, Royal
courts were introduced in India i.e. the Mayor’s Court. Under this charter, the court was
to derive its authority from the Crown and not the East India Company. Since it derived
authority from the British Crown the Englishmen and court in England considered the
decisions of the court in India as equally authoritative.
3. Provisions of Appeal to Privy Council for the first time-For the first time a
provision was made to appeal to Privy Council from the decisions of Mayor’s Court. The
Charter of 1726 introduced the system of appeal from India to the Privy Council in
England. Wherever the Indian law was deficient the Privy Council used the English
laws. Thus, introducing the English law in India.
4. Application of English Law in Indian Soil – This Charter has for the first time
introduced English law into Indian soil. Where there was no express provision of law, the
judges used to decide the dispute on the basis of “equity, justice and good conscience.”
5.Establishment of Legislative Councils –The Charter made provision for the establishment of
a local legislature in each presidency where laws could be made keeping in mind the needs of the
local people. So the Charter of 1726 for the first time, established local legislative councils
in which the Governor with the aid of his council used to make bye-laws, rules and ordinances
for the regulation of the corporations and inhabitants of the presidencies. Before 1726, the law
making powers were vested in the company which could be exercised only by the. “Court
of Director” of the company in England.
6.Attempts to separate the judiciary from the executive -The Charter attempted to separate
the judiciary from the executive. The judges of the Mayor’s Court were not appointed by
the Governor and Council. The Governor and Council could dismiss the aldermen on
reasonable grounds but the aldermen could challenge the decision in the Privy Council in
England.
On account of the above mentioned merits, the Charter of 1726 constitutes a landmark i.e, a
turning point in the legal history of India and proved to be an important event. On account of the
great significance in the sphere of law and justice, the charter is usually characterised as the
"judicial charter.”

Demerits of the Charter of 1726

In spite of the above noted merits of the Charter of 1726, there were two traditional
defects of this charter –
(1) Appointment of Non-lawmen Judges – Before 1726, the traders were to be
appointed on the office of judges who were ignorant of law. As judges their main aim was
to bring about the settlement between the contesting parties. Even after the establishment
of Crown’s Court in 1726 justice continued to be administered by non-professional
judges. Thus, the object of the Charter of 1726 could not be fulfilled.
(ii) No separation of Judicial and Executive power is made -Although many attempts
were made to separate judicial and executive powers from one another yet the policy of
the company was not firm in this respect. The Charter of 1726 also did not admit this
division and it was not maintained.
Attempts to separate the judiciary from the executive was not totally successful for
the following reasons:
1.The Governor and Council could dismiss the aldermen on reasonable grounds and the
aldermen could challenge this decision in the Privy Council but this privilege was only on
paper.
 2.Appeals from the Mayor’s Court were to be heard by the Governor and Council and the
decision of the Governor and Council was final for cases less than 1000 Pagodas.
3.The Governor and five senior council members were justices of the peace who had
power over the criminal jurisdiction.
4.The justice system was in the hands of laymen and non- professional legal expert so the
people judging the cases had no understanding of the law.
5.In cases where both the plaintiff and the defendants were natives, the Mayor’s Court
had no jurisdiction.
6.Indians did not have adequate representation in the Mayor’s Court since out of the nine
Aldermen only two Aldermen were natives.

Critical Estimate of the Working of the Mayor's Courts from 1726 to 1753
The Mayor's Court was constituted to work independently but its relationship with the
executive, Governor-in-Council was not stated clearly. Instead of the smooth working of
these two wings-executive and judiciary, their relations became severely strained in each
Presidency Town. The following few cases reveals the particular aspects of strained
relationship between the two bodies.
Shimpy Case (Bombay): (1730)
A 12 year old boy (Hindu) left his mother who belonged to Shimpy caste and began to
live with his relatives, since his mother became Roman Catholic in Bombay. The mother
filed a suit for the custody of the boy in the Mayor’s Court. The Court ordered the
relatives to hand over the boy to his mother. On a complaint filed by the head of the
caste, the Governor in Council held that the Mayor’s Court had no power to decide cases
of religious nature or caste disputes of the natives. The Governor removed the Mayor
from his office.

Arab Merchant’s Case:

An Arab Merchant brought a suit in the Mayor’s Court for the recovery of the valuable pearls
which were alleged to have been escorted from him by a man who saved him from the burning
boat at the coast of Gujarat. The Mayor’s Court consulted the Governor in Council. The
Governor upheld the jurisdiction of the Mayor’s Court. It suggested the Mayor’s Court not to try
the case as the defendant had been previously hired for piracy regarding the same occurrence and
acquitted. The Mayor’s Court ignored this and decreed the suit. This was reversed
by the Governor.
Re-electing as Mayor Case:
In 1734, a conflict arose over the Mayor’s re-election. Naish was re-elected as Mayor but the
Governor refused to allow him to take the Oath of Office on the ground that an outgoing Mayor
could not be re-elected under the Charter of 1726. Ultimately another Mayor was to be elected.
Mayor and Secretary Betting Case:
Terrain the Secretary to the Madras Government and Mayor Naish met at a dinner party and
entered into a bet which Naish lost and refused to pay. Terrain sued him in the Mayor’s Court
which ruled that Mayor was immune from prosecution. The Government later complained that
its secretary had been treated with indignity by the Court.
Pagoda Oath Case:
In Madras, Hindus gave evidence in the Court on Bhagwad Geetha Oath. Two Hindu Merchants
were put to jail by the Mayor’s Court for refusing to take the pagoda oath which they said was
contrary to their religion and the rules of the castle. This made the Hindu Residents
very furious and they approach the Governor to interfere. So Governor released those merchant
on parole. At the same time the Court was directed to pay regard to the religious rites and
ceremonies of the natives.
RESULT
• In all these clashes and conflicts, even English people were divided into two camps and
were working against each other.
• The inhabitants of Bombay, Madras and Calcutta were the greatest sufferers due to
the constant conflicts between judiciary and executive.
• According to M.P. Jain, "The Company soon lost its patience as it could no longer brook
strife between the judiciary and the executive. In 1753 it took steps to weaken the
judiciary. This was unfortunate but easy comparatively."
CONCLUSION-
The year of 1726 marked the beginning of a new era in the evolution of a judicial
institution in India. The Charter issued by King George I on 24th Sep 1726 marks the
beginning of Crown's courts in this country. The charter of 1726 provided for the
establishment of a corporation in each presidency town. The charter is considered to
be an important landmark in the history of legal system in India as it introduced
the English laws into the country. This Charter became an important landmark in the legal
history of India due to its various vital provisions having far reaching consequences. By
this Charter, the Admiralty Court of Madras has been abolished and thereupon enlarged
the power of Mayor’s Court of Madras, Calcutta and Bombay. This Charter introduced a
uniform judicial machinery for justice in India. By this Charter, the Civil and Criminal
Courts entrusted their authority directly from the King and not from the Company. The
Charter of 1726 played an important role in introducing English Common Law and
Statutory law in India.
 TOPIC 5- STATUTES
Regulating Act, 1773
First Governor General of Bengal- Warren Hastings
Members of Executive Council- General John Clavering, George Monson, Richard Barwell and
Philip Francis
1774- Supreme Court established at Calcutta
Bengal Famine
Dual form of governance
Nizamat, Diwani- revenue collection by EIC and taking care responsibility from Nawab
Trade Monopoly- EIC had monopoly over trading rights
EIC- Control of commercial and political affairs with Directors
Administration- Governor General, Governor, Governor, Executive Council
Central Legislature- Governor General and Executive Council passed laws with voting process
Provincial Legislature- Governor general and council of Bengal made laws on central issues
DRAWBACKS-
Accountability, Subordination, No division of power, bad effects on local administration,
conflicts b/w Supreme Court and Governor General and Council, Elijah Imphey v. Warren
Hastings
Warren Hastings was not able to secure majority. 4 members in EC. Majority= 3/5

ACT OF SETTLEMENT 1781

The Governor General and Council complained to the Court of Directors of the Company which
forwarded their concerns to the British Government. The BG formed a Touchet Committee that
brought AOS 1781. Task was to divide and assign powers b/w the Governor and Council and
Supreme Court.
All matters relating to Revenue would fall under the Governor General and his Council.
Supreme Court was told not to meddle with the personal rituals and traditions of the Indian
people.
This act favored the Governor and Council over the Supreme Court.
PITTS INDIA ACT 1784-
William Pit enters the British Parliament in 1780 and becomes youngest PM of Britain.
This act was brought to control the EIC and free them from the control of the Court of Directors.
Changes in the monopoly of the EIC (to trade east of Cape of Good Hope and west of Strait of
Magellan) were not made.
Dual Government System-
The Control of Company was divided.
Court of Directors- Commercial activities
Board of Control in England regulating affairs India- Civil, military and political affairs (6
members, presided by Secretary of State who was a cabinet minister in British government, 4
privy councilors and exchequer appointed by the PM, the Court of Proprietors’ controlling rights
were taken back) Majority- ¾ and if 2/4, Governor General will have 2 votes. Thus, the GG
needed support of just one member of the EC which was easier. Provision of GG recall.
Administration- Members in Executive Council of Governor General were reduced from 4 to 3.
Increased the powers of Governor General.
Provincial Legislature- under the Madras and Bombay presidency, EC members were reduced to
3 and a commander-in-chief was appointed.
Revenue- EIC Territorial Possessions to British Possessions in India