A DIGEST OF THE LAW RELATING CHAPTER I HISTORICAL INTRODUCTION British BRITISH authority in India may be traced, historically, to Twofold a twofold source. It is derived partly from the British go Crown and Parliament, partly from the Great Mogul and authority other native rulers of India. In England, the powers and privileges granted by royal charter to the East India Company were confirmed, supplemented, regulated, and curtailed by successive Acts of Parliament, and were finally transferred to the Crown. In India, concessions granted by, or wrested from, native rulers gradually established the Company and the Crown as territorial sovereigns, in rivalry with other country powers; and finally left the British Crown exercising undivided sovereignty throughout British India, and paramount authority over the subordinate native States. It is with the development of this power in England that we are at present concerned. The history of that development may be roughly divided into three periods. in India. periods in tional During the first, or trading, period, which begins with the Three charter of Elizabeth in 1600, the East India Company are history of primarily traders. They enjoy important mercantile privi- constituleges, and for the purposes of their trade hold sundry factories, develop. mostly on or near the coast, but they have not yet assumed the responsibilities of territorial sovereignty. The cession of Burdwan, Midnapur, and Chittagong in 1760 makes them masters of a large tract of territory, but the first period may B ment. Land marks of first period. Landmarks of second period. perhaps be most fitly terminated by the grant of the diwani in 1765, when the Company become practically sovereigns of Bengal, Bihar, and Orissa. During the second period, from 1765 to 1858, the Company are territorial sovereigns, sharing their sovereignty in diminishing proportions with the Crown, and gradually losing their mercantile privileges and functions. This period may, with reference to its greater portion, be described as the period of double government, using the phrase in the sense in which it was commonly applied to the system abolished by the Act of 1858. The first direct interference of Parliament with the government of India is in 1773, and the Board of Control is established in 1784. The third and last period, the period of government by the Crown, begins with 1858, when, as an immediate consequence of the Mutiny of 1857, the remaining powers of the East India Company are transferred to the Crown. In each of these periods a few dates may be selected as convenient landmarks. The first period is the period of charters. The charter of 1600 was continued and supplemented by other charters, of which the most important were James I's charter of 1609, Charles II's charter of 1661, James II's charter of 1686, and William III's charters of 1693 and 1698. The rivalry between the Old or 'London' Company and the New or English' Company was terminated by the fusion of the two Companies under Godolphin's Award of 1708. The wars with the French in Southern India between 1745 and 1761 and the battles of Plassey (1757) and Baxar (1764) in Northern India indicate the transition to the second period. The main stages of the second period are marked by Acts of Parliament, occurring with one exception at regular intervals of twenty years. North's Regulating Act of 1773 (13 Geo. III, c. 63) was followed by the Charter Acts of 1793, 1813, 1833, and 1853. The exceptional Act is Pitt's Act of 1784. The Regulating Act organized the government of the Bengal Presidency and established the Supreme Court at Calcutta. The Act of 1784 (24 Geo. III, sess. 2, c. 25) established the Board of Control. The Charter Act of 1793 (33 Geo. III, c. 52) made no material change in the constitution of the Indian Government, but happened to be contemporaneous with the permanent settlement of Bengal. The Charter Act of 1813 (53 Geo. III, c. 155) threw open the trade to India, whilst reserving to the Company the monopoly of the China trade. The Charter Act of 1833 (3 & 4 Will. IV, c. 85) terminated altogether the trading functions of the Company. The Charter Act of 1853 (16 & 17 Vict. c. 95) took away from the Court of Directors the patronage of posts in their service, and threw open the covenanted civil service to general competition. marks of The third period was ushered in by the Government of LandIndia Act, 1858 (21 & 22 Vict. c. 106), which declared that third India was to be governed by and in the name of Her Majesty. period. The change was announced in India by the Queen's Proclamation of November 1, 1858. The legislative councils and the high courts were established on their present basis by two Acts of 1861 (24 & 25 Vict. cc. 67, 104). Since that date Parliamentary legislation for India has been confined to matters of detail. The East India Company was not formally dissolved until 1874. Elizabeth. The first charter of the East India Company was granted Charter of on December 31, 1600. The circumstances in which the grant of this charter arose have been well described by Sir A. Lyall. The customary trade-routes from Europe to the East had been closed by the Turkish Sultan. Another route had been opened by the discovery of the Cape of Good Hope. Thus the trade with the East had been transferred from the cities and states on the Mediterranean to the states on the 1 British Dominion in India. Atlantic seaboard. Among these latter Portugal took the lead in developing the Indian trade, and when Pope Alexander VI (Roderic Borgia) issued his Bull of May, 1493, dividing the whole undiscovered non-Christian world between Spain and Portugal, it was to Portugal that he awarded India. But since 1580 Portugal had been subject to the Spanish Crown; Holland was at war with Spain, and was endeavouring to wrest from her the monopoly of Eastern trade which had come to her as sovereign of Portugal. During the closing years of the sixteenth century, associations of Dutch merchants had fitted out two great expeditions to Java by the Cape (1595-6 and 1598-9), and were shortly (1602) to be combined into the powerful Dutch East India Company. Protestant England was the political ally of Holland but her commercial rival, and English merchants were not prepared to see the Indian trade pass wholly into her hands. It was in these circumstances that on September 24, 1599, the merchants of London held a meeting at Founders' Hall, under the Lord Mayor, and resolved to form an association for the purpose of establishing direct trade with India. But negotiations for peace were then in progress at Boulogne, and Queen Elizabeth was unwilling to take a step which would give umbrage to Spain. Hence she delayed for fifteen months to grant the charter for which the London merchants had petitioned. The charter incorporated George, Earl of Cumberland, and 215 knights, aldermen, and burgesses, by the name of the Governor and Company of Merchants of London trading with the East Indies.' The Company were to elect annually one governor and twenty-four committees, who were to have the direction of the Company's voyages, the provision of shipping and merchandises, the sale of merchandises returned, and the managing of all other things belonging to the Company. London, and Governor of the Levant Company, was to be the first governor. Thomas Smith, Alderman of The Company might for fifteen years 'freely traffic and use the trade of merchandise by sea in and by such ways and passages already found out or which hereafter shall be found out and discovered . . . into and from the East Indies, in the countries and parts of Asia and Africa, and into and from all the islands, ports, havens, cities, creeks, towns, and places of Asia and Africa, and America, or any of them, beyond the Cape of Bona Esperanza to the Streights of Magellan.' 6 During these fifteen years the Company might assemble themselves in any convenient place, within our dominions or elsewhere,' and there 'hold court' for the Company and the affairs thereof, and, being so assembled, might make, ordain, and constitute such and so many reasonable laws, constitutions, orders, and ordinances, as to them or the greater part of them being then and there present, shall seem necessary and convenient for the good government of the same Company, and of all factors, masters, mariners, and other officers, employed or to be employed in any of their voyages, and for the better advancement and continuance of the said trade and traffick.' They might also impose such pains, punishments, and penalties by imprisonment of body, or by fines and amerciaments, as might seem necessary or convenient for observation of these laws and ordinances. But their laws and punishments were to be reasonable, and not contrary or repugnant to the laws, statutes, or customs of the English realm. The charter was to last for fifteen years, subject to a power of determination on two years' warning, if the trade did not appear to be profitable to the realm. If otherwise, it might be renewed for a further term of fifteen years. The Company's right of trading, during the term and within the limits of the charter, was to be exclusive, but they might grant licences to trade. Unauthorized traders were to be liable to forfeiture of their goods, ships, and tackle, and to ' imprisonment and such other punishment as to us, our heirs and successors, for so high a contempt, shall seem meet and convenient.' |