Charter of 1609 and by letters patent dated December 14, 1615, as we have briefly mentioned, they could issue commissions to their captains and principal commanders giving them authority to use martial law, provided there had been the verdict of a jury. And in 1617 we have the first case of the capital punishment of an Englishman in India; this, however, seems to have been under a commission to Captain Henry Pepwell giving him the necessary authority provided he had with him the two principal masters and the two principal merchants of the place, and these and more were actually present. In 1623 (February 14th) the Company were authorized by the Crown to issue to their presidents and other chief officers, commissions for the punishment of their servants on land, but there must be the verdict of a jury. Thus when in 1630 Thomas Rastell was made president at Surat, the authorities at Bantam, which now became an agency, lost the powers of life and death which they had under the grant of King James, and also the power to increase wages, both of which were now conferred upon the President at Surat.

The Charter of 1661 says that the governor and councils of the several places belonging to the Company in the East Indies are to have power:

"

to judge all Persons, belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this Kingdom, and to execute judgment accordingly."

This seems to have been regarded as giving more general power than the previous section of the Charter which limited the punishments inflicted to "imprisonment of body" or "fines and amerciaments," and hence we learn from Mr. Love's Vestiges of Old Madras that a case of homicide having arisen there about 1665, and the Agent and Council having asked for instructions, the Company replied that by the Charter of 1661 the Governors and Councils in their forts and towns had power to execute judgment in all causes, civil and criminal. That there might be no doubt they made George Foxcroft governor and ordered him to proceed with the trial. Accordingly an indictment was drawn, a grand

jury of twenty-four was summoned, a true bill was returned, and a jury of six Portuguese and six Englishmen returned a final verdict. Sentence was pronounced and duly carried out. But probably before the Charter of 1661, the Agent and Council had dealt in some summary way with Englishmen who gave trouble.

As to Indians, before the time we are considering at Madras the Agent and Council had only such authority as was derived from the local ruler, from whom those rights were obtained. And from the records preserved it would seem that he wished justice to be done according to the Laws of England. There was a court of long standing for Indians at Madras, held by the Adijar of the town, who sat at the Choultry or Town House. This post continued to be held by an Indian till about 1652, when two Englishmen were ordered to sit in alternate weeks. In 1661 one Englishman was installed. The changes made by Streynsham Master involved a new arrangement in 1678, as he then increased the number of the justices in the Choultry Court to three, providing that at least two should sit; he also gave the court jurisdiction over cases of small misdemeanour and breaches of the peace, and over actions for debt to the value of fifty pagodas-higher if the parties consented. He further provided for an appeal to the Governor in Council. The subsequent history of this interesting court may be summarized from Mr. Love's researches as follows: When the Mayor's Court was established (see p. 36) in 1688 the aldermen sat as magistrates at the Choultry; but as their duties in the Mayor's Court became heavy special justices for the Choultry were once more appointed. In 1727 a Sheriff's Court, to take the place of the Choultry, was erected (from which there was an appeal to the Mayor's Court if the value in dispute was over five pagodas), but it was abolished in 1729, and the justices sat in the Choultry once more in the old way. After the English restoration in 1749 the Choultry Court was again set up. It was temporarily suspended in 1774, but it seems to have been existing in 1775, for purposes of registration at all events. However, in 1783 the Attorney-General at Madras gave an opinion

that the Company had really no right to establish courts with jurisdiction over the natives of India at all. A single justice now sat for small criminal cases, perhaps at the Choultry, and in 1784 it was decided that for such matters as he could not try, three justices should sit once a week; the magistrate who usually sat singly being one. Suits for sums not exceeding five pagodas, were to be tried by the Court of Requests, composed of commissioners appointed by the Government. This court had been established in 1753 (see p. 41), and about the year 1775 it seems to have taken the place of the Choultry Court. The commissioners appear from a petition of 1798 to have had power of confinement, no doubt in cases of debt, for forty days. The jurisdiction of the Court of Requests was increased to matters involving not more than eighty pagodas by the Charter of 1798, and the Choultry Court was abolished in 1800.

There can have been no need for legislative powers, beyond such as could create mere by-laws, till the Company became the ruler of extensive and important territories. Hence we find that the power of legislation is very clearly expressed in the Charter of 1669, when Bombay was handed over to the Company (and similar provisions are inserted in the Letters Patent giving the Company control over St. Helena in 1674). It is clear that the proceedings as regards trials are to be similar to those used in England, as far as might be, and the death penalty is expressly mentioned. There is also included the right to use martial law in certain cases (a right which had been foreshadowed in the Charter of 1661). This was even more clearly expressed in the Charter of 1683, and the right was made perfectly general in scope. We read :

"And to execute and use within the said Plantations, Forts, and Places, the Law called the Martial Law, for the defence of the said Forts, Places, and Plantations, against any foreign Invasion, or domestic Insurrection or Rebellion."

This is stated to be the widest extent to which the right to exercise martial law was ever granted in India.

On February 2, 1670, Gerald Aungier, the Governor, after a consultation issued orders by which a scheme was

provided for the administration of justice in Bombay. The island was divided into two precincts. In each there were to be five justices who were all Englishmen; they were to sit, three being a quorum and the customers of Bombay and Mahim being presidents and necessary members, to try all actions about matters not involving more than five xeraphins as well as what was in the laws. He also said that the Deputy-Governor and Council were to sit once a week to hear appeals from inferior courts, and to try all actions treasonable, felonious, capital or criminal, and all suits above the value of two hundred xeraphins. In this court all trials were to be by jury. Mr. Malabari has suggested, with every probability, that there was a court held by the Company's officers which dealt with suits about matters of the values between five and two hundred xeraphins. Some sort of code was issued which has been lost, and about the same time (1672) a civil procedure code, we find also that in 1672 a judge was appointed who, assisted by two justices, was occupied with civil and criminal cases. Fryer, writing about 1673, says of Bombay:

The Government here now is English: the soldiers have martial law; the freemen, common; the chief arbitrator whereof is the president, with his council at Surat; under him is a justiciary, and courts of pleas, with a committee for regulation of affairs, and presenting all complaints."

Things were in a very bad way in Bombay at the close of the century. The directors had written out in 1671 to the effect that

"

care should be taken that trial by jury should be introduced into the Courts of justice agreeably to the English law but they declined engaging a judge versed in the Civil Law being apprehensive that such a person might be disposed to promote litigation, and probably might not obey the orders which the President and Council might find it for the interest of the Company to give him; it had therefore been resolved to send some persons who had received education in Law as civil servants, without making the practice of the law their only object, and if they deserved well, they might be appealed to as assistants in the Courts of Justice."

We read that a salaried judge was appointed at Bombay in 1675, but he behaved foolishly, and was suspended in 1677.

At Madras the need of a superior court was greatly felt, and Sheynsham Master and his council resolved on March 18, 1678, in virtue of the Charter of April 3, 1661, and in virtue of the Governor's commission, that the Governor and his council should sit twice a week and hear and judge all causes, the trials to be by jury. Small cases were to go, as we have seen, to the Choultry. The same year this energetic Governor authorized courts martial to be held when necessary.

Such was the situation when the Charter of 1683 (see p. 15) was granted. It was confirmed by another of 1686, and copies were duly sent out to India. "The person learned in the civil law" and two merchants appointed by the Company had to deal with all mercantile and maritime cases, and also with trespasses, injuries, and wrongs, but the jurisdiction, though vaguely expressed, seems to be confined to civil cases, as there is no mention of criminal punishment. In consequence of this in April 1684 the directors wrote to the President at Surat appointing Dr. St. John "Judge of the Admiralty Court in the East Indies and of all our maritime affairs there, to be erected in pursuance of His Majesty's Additional Charter of August 9th last" (1683). He was to establish a court and to look after cases against interlopers, amongst other matters; the proceedings were to be in English (not in Latin), and all other judicatures upon the island of Bombay were to remain as they were.

The worthy doctor came out, but he found that the Deputy-Governor of Bombay was established as JudgeAdvocate. However, he set up his court at Surat on September 17, 1684, moving to Bombay shortly afterwards, and writing a report on Keigwin's Rebellion. He had disputes with the Deputy-Governor as to the jurisdiction, and when he went home, about 1690, no one seems to have been sent out to succeed him. It is perhaps with reference to these troubles that Bruce and Anderson say that there were no courts held at Bombay during the last eleven years of the seventeenth century.

The Company also wrote to the authorities at Madras appointing the Governor Judge-Advocate; apparently he