Volume 1, April 2018

“History of Court”

Rajat Godha
B.B.A. LLB (Hons)
Indore Institute of Law
Indore
History of Courts

In 1583 A.D three (3) English merchants Ralph Fitch, James Newsberry and William
Heeds visited India. Britishers got information about the wealth of India from the writings of
Ralph Fitch who travelled throughout India. The information about the wealth of the country
inspired the Britishers to have trade relation with India.
On 24th September 1599, some merchants of London held a meeting under the
chairmanships of the city mayor. The object of the meeting was to constitute themselves into a
company for starting trade relations with the east Indies. They formed a company under the name
and style “The Governor and Company of merchants of London trading into the East Indies”.
The said company is known as East India Company. The Company applied to the crown for
permission to trade with East Indies. On 31st December 1600 Queen Elizabeth issued a Charter
and there by incorporated East India Company.

Introduction
History comprises of the growth evolution and development of the legal system in the
country and sets forth the historical process where by a legal system has come to be what it is
overtime. The legal system of a country at given time is not creation of one man or of one day
but is the cumulative fruit of the endeavor experience thoughtful planning and patient labor of a
large number of people through generation.
With the coming of the British to India the legal system of India changed from what it
was in the Mughal period where mainly the Islamic law was followed. The legal system
currently in India bears a very close resemblance to what the British left with.
As per the need of the changing times the changes and amendments were made but the
procedure which is followed not has its root in the era of British India. Little did the traders of
the English East India Company (EIC) while establishing their trade in India knows that they
would end up establishing their rate for about 400 years here. But the evolution of law as it today
did not came about in one go altogether. It was the presidency towns individually that were first
affected by this change in hands of the governance of India after which the steps towards
amalgamation of the judicial system were taken by the Charter 1726 and 1753. To improve upon
this under the regulating Act 1773. Supreme Court in the presidency town and then under the Act
of 1798 the recorders Court at Madras and Bombay were established. This were ultimately
replaced by the establishment of High Court Act 1861 which are still running in the country it

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was only after Independence in 1950 that the Supreme Court was established reforms and
codifications were made in the pre-post-independence era and are still continuing.

The History of the Legal System in British:

India Opens with the Establishment of East India Company
The company incorporated in England by the crowns Charter of 1600. The company was
given executive trading right in Asia including India, Africa and America. All the members of
the company constituted themselves as general court it was to elect annually the court of
Directors. The Court of Directors consisted of a Governor and 24 Directors.
The court of directors was to manage the entire business the court of director were to be
elected by the general court for 1 year but any of them might be removed from his office even
before the expiry of his term of office by the general Court.

Object of the Company

Actually the company appears that to promote British trade and commerce in Asia. The
company was conferred on only those powers which were necessary to regulate its business and
maintain discipline amongst its servants and they were not at all adequate for governance of any
territory.
But the company came to India and they were found the Indian Kings disunited and
unaware of the Modern Politics. They realized they can dominate the territory in India the
company gradually and gradually inclined to acquire territories in India. The company thereby
could market for its goods. At the time of the incorporation the object of company was
commercial but gradually and gradually its object became political also.
In early days the administration of justice in the settlement East India Company was not a
high order. There was no separation between the executive and the judiciary the judiciary was
under the control of the executive the judges were not a law experts. The company gave lesser
importance to the judicial independence fair justice and rule of law. The administration of justice
and developments of courts and judicial institution during this period may discussed under the
following headings –
1600 to 1726 is the first period.
1726 to 1773 is the second period.
Administration of justice and development of East India Company – presidency town.

Administration of Justice in Surat

The East India Company established Ist factory in Surat in 1612. British crown sent an
ambassador Sir Thomas Roe to the Mughal Emperor to request to grant certain facilities to the
English man in India. In 1615 the Mughal Emperor on the pleading of Sir Thomas Roe issued a
Firman, the Mughal Emperor allowed the Englishman to live according to their own religion and

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laws and to settle dispute among themselves by their president, however the disputes between on
Englishman and an Indian were to be decided by the native Judges.

Administration of Justice in Madras Before 1726:

In 1639 Francis Day acquire a piece of land from a Hindu Raja for the East India
Company and constructed a fortified factory were Englishman and other Europeans and therefore
the area of the factory came to be known as while town and the people residing in the village
Madras, Patnam were mostly Indians and therefore it came to be known as Black Town. The
Whole Settlement Consisting of white town and black town came to be known as Madras. In
judicial administration in Madras divided in 3 stages. First, Second and Third.

First Stage
White town before 1665 Madras was not presidency town and it was subordinate to
Surat. The administrative head was called ‘Agent’ and he was to administer the settlement with
the help of Council. The serious criminal cases referred by them to the Company’s authorities in
England for advice. But there was defects the judicial power of the agents and council was vague
and indefinite and much delay also, they did not have any elementary knowledge about law.
They were Merchant. There was no separation between executive and judiciary.
The president of the Surat factory and members of His Council constituted a court to
decide dispute between the Englishman interest in accordance with their own laws and customs.
They were to decide both civil and criminal cases.
Capital offences dealt by a jury there was no separation between executive and judiciary.
The president and the members of his council who were to decide cases and administer justice
were merchant. They did not have even elementary knowledge of English law.
The cases were decided by them according to their wisdom, commonsense. And the
native judges were corrupt bribery was rampant. They had no request for law and justice.
Surat was the chief trading center till 1687. But there after it lost its importance because in 1687
the headquarters of the president and council were transferred from Surat to Bombay.

Black Town
The old judicial system was allowed to function there was a village head man known as
Adigar or Adhikari who was responsible for the maintenance of Law and Order. Adigar
administered justice to the native at the Choulby Court. According to the long established usages,
Choulby Court was court of a petty cases. The Company had no power to inflict death sentences
under the Charter of 160 and the agent in Council could inflict such a sentence only under the
authority of local sovereign. The appeals front the Choulby Court were to be heard by the agent
in Council. An Indian native named Kannappa was appointed Adigar but he misused his power
and consequently he was dismissed from the office and the English servants of the office and the
English servants of the company were appointed to suit at the Choulby court.

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Charter of 1661
It was granted by the British Crown it conferred board powers on the East India
Company. The charter authorized the Governor and Council of Englishman inhabiting the
settlement of the company. The Governor and Council of each factory to hear and decide all type
of civil and criminal cases. Including the cases of capital offences also and it could award any
kind of punishment. Including death sentences.
Under the Charter of 1661, the cases of Indians inhabiting in the settlement of the
company were to be decide according to English law. The powers conferred on the company
could only be exercised by the Governor the chief factor and Council were empowered to send
offenders for punishment either to a place where there was a Governor and Council or to
England.

Second Stage – (1665 – 1683)

In 1665 one Mrs Ascentra Dawes was charged with the commission of Murder her slave girl and
the Agent- in – Council referred the case to the Company’s authority in England for advice.
After raising the status of agent and Council of the factory at Madras to try Mrs. Dawes with the
help of Jury and an unexpected verdict of not guilty was given and consequently Mrs. Dawes
was acquitted. Later on 1678 the whole judicial administration was re-organized. The judicial
administration in both the towns was improved.

White Town
The court of Governor and Council was declared to be the High Court of Judicature. It
was to hear all case of the inhabitance of both towns with the help of jury and also hear the
appeals from the Choulby Court. It was decide cases according to English Law. The Court was to
meet twice a week.

Black Town
The Choulby Court was also re-organized. The number of the judges was increased from
2 to 3. All the judges were Englishmen. At least 2 of them were to sit in the Court for 2 days in
each week. The Choulby Court was empowered to hear petty criminal cases. It was also
empowered to hear petty civil cases up to 50 pagoda and the cases of higher value with the
consent of the parties.

Third Stage (1683 – 1726)

Admiralty Court on August 9 1683 Charles II granted Charter to the Company to
establish the courts which was to consist of person learned in the civil law and two mercantile,
maritime trespass, injury and wrongs etc. again April 12 1686 Charles II issued a new charter
with same provisions. Chief Judge of the Admiralty Court was known as the Judge Advocate.
The admiralty court having the jurisdiction to hear and decide all mercantile and maritime cases.
In 1687 company sent from any land Sir John Biggs a professional lawyers learned in
Civil Law to act as the Judge Advocate of Admiralty Court bestowed justice in all cases civil,

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criminal as well as maritime. Sir Biggs died in 1689 and Governor again took the charge of
judicial function. In 1692 the company sent John Dolben as new Judge advocate and in 1694 he
was dismissed on the charge of taking bribes.
In 1696 company directed that members of the Council should in succession serve as the
judge Advocate after Willian Fraser a Merchant was appointed as Judge Advocate. Later he
resigned and no one was ready to become the Judge Advocate, so company made the Court
registrar the Judge Advocate.

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
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 First Alderman were as Follows

a) Englishman – 3
b) Hindu – 3
c) Frenchman – 1
d) Portuguese- 2
e) Jews and Americans – 3
The sanction named 29 Burgesses and after that outstanding Burgesses were delegated by the
Mayor and Alderman. Among first 60 Burgesses the standing head were chosen as the
Burgesses.

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This was the idea of first partnership the Mayor and three Senior Alderman were to be the equity
of the peace. The Mayor and Alderman were to frame a court of record which was approved to
attempt common and in addition criminal case. This court was known as Mayors court.
The Mayor's Court was approved to give following disciplines –
Fine, detainment and bodily discipline. The persuaded individual inspires ideal to document
engage the Admiralty Court.
As Mayor and Alderman did not have legitimate learning the arrangement was made for the
arrangement of the recorder of the Court. He helped the Mayor with respect to the cases and he
likewise got the ability to vote simply like Alderman. The Recorder of the Court was required to
be apt in the law and the hireling of the Company. The Charter designated the Judge Advocate
Sir Biggs as the first Recorder. Just in the year 1712 the court inspired energy to give capital
punishment to local individuals.
The Mayor Court did not take after uniform discipline for a similar wrongdoing. It relies upon
the Judge tact for this, the reason was that the Mayor and his group did not have any lawful
information. Sir Biggs got the experience of filling in as a recorder in the London however here
in Madras the issue was that Sir Biggs sat in the Admiralty Court were went. Be that as it may,
organization disregarded this reality after the demise of Biggs. No recorder was named. Like this
in the period 1686 to 1726 in Madras three Courts Functioned.
1) Mayor's Court
2) Choultry Court
3) Admiralty Court.
After 1704 Governor and Council heard the interests from the Mayors Court as Admiralty Court
to stop work. In this period additionally the Criminals were so long kept in prisons, that even
individuals overlook the violations. Equity framework was moderate and nobody pestered. The
death penalty was given by hanging. Theft was rebuffed with death, which make was rebuffed
with fine.
ADMIRALITY COURT
In 1683 King Charles II issued a Charter. It enabled the Company to set up Courts of Admiralty
in India. The Court of Admiralty was approved to attempt all merchants who carried out different
violations on the high oceans. The court was enabled to hear and decide all cases concerning
oceanic and trade exchanges. The court was additionally approved to manage all instances of
relinquishment of Ships, Piracy, Trespass, Injuries and Wrongs. It was expressed that the court
would be guided by the laws and traditions of vendors and in addition the tenets of value and
great inner voice in the assignment of organization of equity.

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The arrangement of the Charter of 1683 was rehashed by James II in a sanction issued in 1686.
On tenth 1686 the court of chief of naval operations' office was set up at Madras John Gray was
named judge of the court and to help him 2 other English man were named as his associates on
22nd July 1687. Sir John Biggs who was a Professional Lawyer learned in Civil law was
designated as Judge Advocate in Chief Judge of the Court.
From that point the Governor and Council surrendered the legal capacity and stopped to sit as
court. The Jurisdiction of the Admiralty court was not limited to Mercantile and Maritime Cases.
It additionally chose both common and criminal cases. Advance it heard interests from the
Mayor's Court. Consequently it turned into a General Court of the Settlement. The Admiralty
court was working routinely till 1704, yet from there on it stopped to sit on normal premise and
step by step it vanished, and its purview was exchanged to the Governor and Council.
THE CHOULBY COURT
The old Choulby Court was perceived and permitted to proceed by the Governor. The quantity of
Judges was expanded to Three – Two Judges were required to direct the trail of cases. The Court
met 2 days in every week. The court was enabled to attempt common cases up to 50 Pagodas
(Pagoda was a gold Coin, One Pagoda was equal to 3 Rupees) and insignificant criminal cases.
The High Court of Judicature was approved to hear advances from Choulby Court.
THE HIGH COURT OF JUDICATURE
The court of Governor and Council was assigned as the High Court of Judicature. The Court met
twice every week. The Court chose all Civil and Criminal cases with the assistance of jury of 12
men.
Importance of the Words:
1) Mayors
The Name of a court generally settled in urban communities, made out of a Mayor, recorder and
council member. For the most part having Jurisdiction of offense submitted with in the city.
2) Alderman
An individual from the civil, administrative body in a town or city. In numerous purview, an
individual from the higher branch of the civil or precinct chamber in England and Ireland before
1974. One of nearby board chose by alternate Councilors.
3) Burgesses
A judge of a ward by and large the central officer of the organization who performs with in the
precinct (regulatory division) a similar sort of obligations which a leader does in a city. In
England the word is in some cases connected to every one of the ineptitudes of a district who are
called burgesses. In some cases it means the agents of a ward in parliament.

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Organization OF JUSTICE IN BOMBAY

PERIOD 1668 – 1726
Portuguese were the first European to gain the island of Bombay in 1534 from the King of
Gujarat in 1661. Portuguese King Alfonsus VI exchanged the island to Charles II as Dowry on
the marriage of his sister Catherine with the British King. Charles II exchanged it toward the
East India Company in 1668 for a unimportant yearly lease of 10 pounds.

Judicial System
Before 1726, the Judicial system the Island of Bombay grew in Three Stages –
1) First Stage – (1668 – 1683)
2) Second Stage – (1683 – 1690)
3) Third Stage – (1781 – 1726)

Charter of 1668
The political position of Bombay was quite different from that of Madras, the King of
Gujarat and from that of Madras, the king of Gujarat and from that time onwards it was under the
political control of the Portuguese. In 1668, the charger authorized the company the other
comprised of Mahim, Parel, Sion and Worli. A separate court of judicature was established. For
each division at Bombay and Mahim. Each court consisted of Five Judges, the custom officers of
each division, an Englishman, was empowered to preside over the respective court. Three Judges
formal the quorum of the court. As it was not possible for an Englishman to have adequate
knowledge of India Laws, some Indians were also appointed Judges to assist him in the court of
each division. The courts were authorized to hear, try and determine cases of small thefts and all
civil actions up to 200 (it was a Portuguese Coin 20 Xeraphins were equal to nearly Rs.150) in
value. An appeal from the court of each division was allowed to the court of Deputy Governor
and Council. A part from the appellate Jurisdiction the court of Deputy Governor and Council
also had original jurisdiction in important. Felonies which were to be tried with the help of Jury
and the laws of the company. Englishman was under the jurisdiction of this court. Further appeal
to the president and council at Surat was discouraged except in rare cases to legislate and to
exercise judicial authority in the island of Bombay. It was further stated that such laws should be
consonant to reason and not repugnant or contrary to the laws of England and they were also
required to be as near may be agreeable to the laws of England. The system of courts and
procedure was to be similar to that established and used in England. The Charter of 1668 resulted
in a transition of the company from a trading association to a territorial sovereign invested with
powers of civil and military government.
The president of Surat, Sir George Oxenden, received the Company’s order in September
1668 to visit the Island of Bombay and establish the executive government under a Deputy
Governor and Council. Oxenden visited Bombay in January 1669. He died in July 1669. The
next Governor of Surat – Gerald Aungier, made same reforms in the Island of Bombay in 1670

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Judicial Reforms of 1670

As per the reforms of 167 the Portuguese Laws and Customs were allowed to continue
the Island of Bombay was divided into two divisions. One division consisted of Bombay,
Mazgaon and Girgaon. The other comprised of Mahim, Parel, Sion and Worli. A separate court
of judicature was established for each division at Bombay and Mahim. Each court consisted of
Five Judges. The customs officer of each division, an Englishman, was empowered to preside
over the respective court. Three judges formed the quorum of the court. Three Judges formed the
quorum of the Court. As it was not possible for an Englishman to have adequate knowledge of
Indian Laws, some Indians were also appointed Judges to assist him in the Court of each
division. The Courts were authorized to hear, try and determines cases of small thefts and all
civil actions up to 200 xeraphins (it was a Portuguese coin 20 xeraphins were equal to nearly
Rs.150) in value. An appeal from the court of each division was allowed to the court of Deputy
Governor and Council. Apart from the appellate jurisdiction the court of Deputy Governor and
Council also had original Jurisdiction in important Felonies which were to be tried with the help
of jury and the Laws of the Company. Englishman was under the jurisdiction of this Court.
Further appeal to the President and Council at Surat was discourages except in rare case.

New Judicial Plan of 1672

It was realized within the next 2 years that the judicial system of 1670 was defective in
various respects. Augier the Governor was himself not satisfied with the working of the Courts.
The Judges of the Superior and Inferior Courts had no knowledge even of the elementary
principles of law, they were Merchants. The judicial and executive powers were exercised by the
same person. As consequences, the abuse of power created various new problems. Order to
remove these defects a new plan was prepared in 1672 for the administration of Justice in
Bombay.
According to the new plan the government issued a proclamation on 1StAugust 1672
declaring the introduction of English Law into Bombay. The Portuguese Laws and Customs were
totally abolished under the new plan. The Judicial Machinery was again organized. A new
central court known as the Court of Judicature was established. The Court of Judicature was
empowered to exercise its Jurisdiction over all Civil a and Criminal and Testamentary cases.
George Wilcox appointed its Judge assisted by other Justice. The Court sat once a week to try
civil cases with the help of jury. The court charges a fe of five percent of valuation of the suit
from the litigants.
The judges were prohibited from carrying on private trade or business and instead he was
granted a salary of Rs. 2000 per year to meet his expenses. An appeal from the court of
Judicature was allowed to the Deputy General and Council. Juries were duty employed and paid.
Attorneys were allowed to practice. English procedure including arrest and imprisonment was
followed. As far as possible the English substantive law including statue law was made
applicable. In framing the new scheme Aungier was primarily concerned with the speedy and
impartial administration of Justice.

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Justice of the Peace was appointed to administer criminal justice. For this purpose
Bombay was divided into four divisions, namely, Bombay, Mahim, Mazagaon and Sion.in each
division a justice of the Peace, an Englishmen was appointed. They acted as committing
Magistrate to arrest the accused and to examine the witness. The record was then placed before
the Court of Judicature which met once a month to decide criminal cases with the assistance of
the Justice of Peace, who acted as assessors in the Court.
The scheme of 1672 also created a Court of Conscience to decide petty civil cases. Once
a week the court dealt summarily with cvil cases under twenty Xeraphins. The decision of the
Court was final and no further appeal was allowed. No Court-Fee was charged from poor persons
and, as such the Court Become famous as, “Poonam’s Court”. George Wilcox, Judge of the
Court of Judicature, also presided over the Court of Conscience which met only once a week to
deal with petty civil cases.
George Wilcos, the first Judge of the Court of Judicature died in 1674. James Adams was
chosen to succeed Judge Wilcox but he was not well – versed in law. After a few months in
1675, his assistant Niccolls was appointed judge in his place. In 1677 Niccolls was suspended
and later dismissed by the Council in various charges. Gary succeeded Niccolls as Judge and
remained in the office up to 1683. During this tenure, the salary and rank of a Judge was reduced
and the Council became superior in power and position.
Keignwin’s rebellion, which began in December 1683, and continued up to November
1684, gave a death – blow to Aungie’s judicial system in the Island of Bombay.

Admiralty Court (1684 to 1690)

As stated above, the development of Courts at Bombay was interrupted due to the
Keignwin’s rebellion. After the rebellion was suppressed, efforts were made to set-up a regular
judicial system at Bombay. The Company found its authority to establish courts under the earlier
Charter of 1683 granted by Charles II. The Charter provided for the establishment of Courts at
such places as the Company might direct for Maritime causes of all kinds, including all cases of
Trespasses, Injuries and Wrongs done or committed upon high seas or in Bombay or its adjacent
territory, and each Court was to be held by a learned judge in civil law assisted by two persons
chosen by the company. Such Courts were required to decide cases according to the rules of
equity and good conscience and the laws and customs of merchants. Accordingly, an Admiralty
Court was established at Bombay in 1684. Dr. St. John was also authorized to act as Chief
Justice of the Court of Judicature. The Court of Judicature was again created, as the authority of
the Admiralty Court was not sufficient to cover all other civil business.
John Child, Governor of Bombay at Surat, was not in favour of accepting the theory of
judicial independence which was adopted by dr. St. John in his judicial decisions. It gave rise to
conflicts between the Governor and the Chief Justice. Dr. St. John’s judicial independence was
interrupted by the Governor John Child as insubordination towards himself. In 1685 the powers
of Dr. St. John to act as Chief Justice of the Court of Judicature were withdrawn by the
Governor. Vux, a member of the Bombay Council was appointed as judge to preside over this
Court, in place of Dr. St. John. These steps further developed the existing conflict between the

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Governor and the Chief Justice. Dr. St. John strongly criticized the transferring of his power to
Vaux, a new judge, who according to him was ignorant of civil laws. In due course the Governor
and Dr. St. John’s dismissal, Sir J. Wyborne, Deputy Governor of Bombay, was appointed as the
Judge of the Admiralty Court. In 1688 Vaux succeeded Sir J. Wyborne and remained in the
office up to 1690.
In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial
system of Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer
justice was almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period in
Bombay’s Legal History.

Court of judicature
A new period in the Judicial history of Bombay began with the revival and inaugutration
of a court of judicature on 25th March,1718 by Governor Charls Boone. It was established by the
order of the Governor and Council which was later on approved by the Company authorities. The
court of Judicature of 1718 consisted of ten Judges in all. It was specially provided that the Chief
Justice and Five Judges will be Englishman. The remaining Four were required to be Indian
representing Four different communities, namely, Hindus, Mohammedans, Portuguese –
Christians and Parsi. All English Judges were also members of the Governor’s Council and
enjoyed status superior to Indian Judges. Three English judges formed the quorum of the court.
The Court met once a week. Indian Judges, who were also known as “Black Justice” were
included mainly to increase the efficiency of the Court and their role was mostly that of assessors
or assistants of the English judges. They do not appear to have enjoyed equal status with English
judges.
The Court of 1718 was given wide powers. It exercised jurisdiction over all civil and
criminal cases according to law, equity and good conscience. It was also guided by the rules and
ordinance issued by the Company from time to time. It was necessary for the Court to give due
consideration to the customs and usages of the Indians. Apart from its jurisdiction over probate
and administrative matters, it was further authorized to act as a Registration House for the
registry of all sales concerning houses, lands and tenements.
An appeal from the decision of the Court of Judicature was allowed to the Court of
Governor and Council in cases where the amount involved was Rs. 100 or more. A notice to file
an appeal was to given within Forty-Eight hours after the judgment was delivers to the Chief
Justice of the Court of Judicature. Moderate fees were prescribed by the Court for different
purposes. For filing an appeal a fee of Rs. 5 was to be paid.

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