A Failed Attempt of English Legal Transfer in India
When the East India Company (here in after EIC) was granted its first Charter in 1600, its aim was primarily to establish commercial outposts (i.e. factories) in India. Unlike its counterparts in North America, the EIC did not envision territorial expansion, and thus had no mandate as to transfer English laws within the small parcels of land it then controlled. Whilst loosely preserving personal jurisdiction over its servants, it then actively pursued treaties with local rulers and abided to the latter’s territorial authority.
The question of English legal transplants first arose upon the transfer of Bombay from the Portuguese to the English Crown in 1661, and the latter’s lease to the EIC through its 1668 Charter. Courts of Judicatures were progressively set up on a territorial basis to administer laws that would be ‘as near as may be agreeable to the Laws of England’. The subsequent ‘Company laws’ were however sometimes far distant from their original model, moreover administered by non-professional lawyers (i.e. EIC servants) and under the appellate jurisdiction of the Governor in Council for each Presidency.
Due to the growing problem of interlopers, the Charter of 1683 allowed for the creation of Admiralty Courts, furthermore headed by a professional civil lawyer. Procedural questions as to their appeallate jurisdiction over Court of Judicatures, as well as to the substantive law they were to apply (i.e. Company law or English law), led to growing tensions with the EIC Governors, which were only resolved to the latter’s benefit with the establishment of Mayor Courts under the EIC’s own seal through the Charters of 1686 and 1687. Moreover, the obligation of having a civil trained lawyer heading the Admiralty Courts would scarcely be implemented beyond this date, until the latter’s jurisdiction would be taken over by Supreme Courts of Judicature and subsequently some High Courts (following their establishment through the Indian High Courts Act, 1861, and the Colonial Courts of Admiralty (India) Act, 1891).
Nonetheless, the EIC’s victory in postponing the English Crown’s direct jurisdiction over its overseas Indian territories would be short-lived. The Company’s somewhat forced reform by Parliament in 1708 progressively paved the way for the 1726 Charter, which brought the Mayor’s Courts under the authority of the Crown, and for the first time the possibility of appeal to the King in Council in England.
Despite the EIC’s later territorial expansion following the battle of Plassey (1757) and the grant of dīwānī (1765), which ultimately led to the dual system of judicial administration between Presidency and mofussil territories; the Charter of 1726 marks a clear a juncture. The EIC was no longer be able to claim independence from British Parliament and its laws, and the administration of justice in India took an Anglo-centric turn.
If some studies previously focused on Mayor’s Courts and English legal transfers in India throughout the 18th C, little can be found on the 17th C. Admiralty Courts’ ultimately failed attempt to import English law.
Our inquiry seeks to investigate the reasons for this failure. It will concentrate on the brief period within which Admiralty Courts were established and functioning under a civil lawyer. This consists in Bombay of a period between 1684 and 1687 when John St. John was the judge-advocate, and between 1686 and 1704 in Madras when John Biggs, John Dolben and William Fraser occupied this position (no Admiralty Court was set up in Calcutta).
Concentrating on the conflicts between Admiralty Courts and Courts of Judicature and the former’s appellate jurisdiction over the latter, our aim is to establish the extent upon which English law was applied within Admiralty Courts compared to ‘Company law’. Through a study of court records still in existence, as well as the broader communications between the judge-advocates and EIC officials, it will then be assessed whether this unsuccessful attempt of English legal transfer in India was due to the personalities of the aforementioned judge advocates, the political setting of the time, or the lack of proper legal framework for these transfers to take place – whether it is the still ubiquitous legal status of the EIC, or the conflicts already present in England between Common law and Admiralty Courts.