The Evolution of Military Law in India

Including the Mutiny Acts and Articles of War

U C Jha

• Publisher: VIJ Books (India) Pty Ltd
• Year: 2020
• ISBN:
  9788194285120
• Edition: 1
• Topic: Law
• Subtopic: Military Law
• Index: Law

The earliest completed code of the British army dates back to the 14th century when the "Statutes, Ordinances and Customs" were issued by Richard II to his Army in 1385 on the occasion of war with France. These statutes called "Articles" or "Ordinances of War" were issued under the prerogative power of the Crown. The earlier Articles were of excessive severity prescribing death or loss of limb as punishment for almost every crime. There were thousands of instances of accused native soldiers being blown from a gun on the orders of their commander. As minor punishment, an accused could be branded with hot iron for swearing. He could even be flogged in public or ordered to ride the wooden horse. This book provides an insight into the origin and development of the legal system of the Indian Army from the year 1600 to 1947 including that of the Navy and Air Force. A total of 40 statutes passed by the British Parliament and the Articles of War issued by the Crown for governing the military forces during that period have been included. This book is for military historians, military personnel, military lawyers, academics, journalists, and those with an interest or professional involvement in the subject.

Chapter I

The Origin and Growth of East India Company (1600-1858)

Towards the end of the fifteenth century rapid discoveries in mathematics, physics, and astronomy facilitated distant navigation. Portuguese explorer Vasco da Gama, in an expedition that began in July 1497, became the first person to sail around the Cape of Good Hope to reach India. His revolutionary route proved that it was possible to reach India without hazardous journeys through the Mediterranean and Arabia. The Portuguese fleets brought lucrative Indian spices to Europe from the East-Indies and filled the treasury of the State. It lowered the price of eastern commodities in the Italian markets, and created a spirit for distant navigation and commerce among the rising maritime states in the north of Europe.¹ When the Portuguese acquired seats of trade and dominions on the East and West coasts of the Indian peninsula, they found it necessary to establish guards at their factories, to protect the territories which had been ceded to them by the Native Powers.

In 1588, the British acquired naval supremacy after defeating the Spanish Armeda.² This encouraged a few merchants of London to form a company for trade in the East.³ Queen Elizabeth I of England accepted the proposal to send ships to the Indian Ocean, where Spain was not dominant. A Charter was issued by the Queen on 31 December 1600 which granted the merchants’ newly formed organization: “The Governor and Company of Merchants of London, trading to the East-Indies”⁴ to purchase lands, and to dispose thereof, and to have a common seal, to ratify and make public their acts. The management of the Company was placed under a Governor and a Committee of twenty-four men, who were to have the direction of voyages, provisions of shipping and sale of merchandize for fifteen years, from Christmas 1600, provided that such trade should not be to any place in possession of any Christian prince in amity with the Queen.

During the initial years of its existence the Company undertook ‘separate voyages’ and distributed the profits from each voyage among the subscribers.⁵ The first effort for regular trade with India was made in 1608 when British Captain Hawkins tried to obtain permission from the Mughal emperor Jahangir to establish a factory at Surat.⁶ British merchants in the service of the East India Company would gladly have traded on the same sea-board, which was known as the coast of Malabar, but they were shut out by the Portuguese fortresses. Accordingly they sailed further northward, and tried to get a footing in the Mogul port of Surat. This port was a centre of the Mohammedan religion and an emporium of Mogul trade. It was the starting point for all pilgrims going to Mecca, and the point to which they returned when their pilgrimage was over. At Surat, however, the British were thwarted by the Portuguese. The Nawab of Surat was told that British were pirates. The merchants of Surat were threatened with the capture of their ships if they had any dealings with the British. Fighting was the only way of meeting the difficulty. Accordingly the British attacked a Portuguese fleet outside the bar of Surat. The news of battle and the roar of cannon brought the Nawab, the merchants, and half the population of Surat to the sea-shore. The British sunk and burnt several Portuguese ships until the residue of the fleet steered back to Goa. The Moguls were fascinated by the victory. They saw that the British had superior military strength. The Nawab of Surat feasted the conquerors in his tents on the sands, and the Surat merchants eagerly bought British cargoes and supplied Indian commodities to the men who had beaten the Portuguese.

Surat and Bombay: In 1613 the English succeeded in securing permission from Jahangir to establish their first factory at Surat.⁷ The Company officials set up a factory in a large Indian house and named it “English-House” having warehouses and offices below and chambers and refection-rooms above.⁸ Not only British travellers, but Italians, Germans, and Frenchmen, were heartily welcomed by the factors at Surat. All were impressed with the order and regularity of the establishment, in which decorum and discipline were as strictly maintained. An English chaplain read prayers every morning and evening, and preached two sermons on Sundays. An English surgeon attended the sick factors, and the Mogul authorities and other grandees often applied for his services, and thus enabled him to promote the Company’s interests on important occasions. The chief of the factory was known as the President, but all business was transacted by the President with the help of four or five senior merchants, who met twice a week in council. This management of affairs by a President in Council survived for nearly three centuries.

In 1615 Thomas Roe was instructed by James I to visit the Moghul emperor Jahangir. The purpose of this mission was to arrange for a commercial treaty that would give the company exclusive rights to reside and build factories in Surat and other areas. In return, the company offered to provide goods and rarities from the European market to the emperor. This mission was highly successful as the Company succeeded in securing from the Mughal emperor certain privileges including the right to erect factories in certain parts of the empire. By virtue of this concession the English established factories at Agra, Ahmedabad and Broach within the next four years. These factories were placed under the supervision of the President and the Council of Surat factory.

In order to improve on the general treaty, Thomas Roe made proposals to Sultan Churrum (future Shah Jahan), to enter into an alliance, for resisting the pretensions of the Portuguese. After long discussions with Prince, the treaty was concluded, and the following were its leading articles:— that the prince should take the English under his protection;—that the Governor of Surat should lend ships to the English, to be employed in the defence of the port; the English, however, to be allowed to land only ten armed men at one time, but the resident merchants might wear arms;— that the English might build a house in the city, but distant from the castle;—that the Governor of Surat should receive the Ambassador and his suite, with marks of honour;—that the English should enjoy the free exercise of their own religion, and be governed by their own laws;—that in any disputes between the English and the natives, reference was to be made to the Governor and his officers, who should decide, speedily and justly; but disputes, among themselves, were to be decided by their own factory;—that liberty of trade should be granted to the English, in its fullest extent, on payment of the usual duties on landing the goods, from which pearls, jewels, etc. were to be exempted;—that freedom of speech should be granted to the English linguists and brokers, in all matters regarding the trade of their employers;—and, lastly, that all presents, intended for court, should be opened and examined at the custom-house at Surat, and then sealed and delivered to the English, to pass, duty free; but, if such presents were not made, the articles were to be liable to pay duty. The firman, ratifying and confirming this treaty, was signed, sealed, and delivered to Thomas Roe.⁹

By 1647 the company had 23 factories and 90 employees in India. The major factories became the walled forts of Fort William in Bengal,¹⁰ Fort St. George in Madras, and the Bombay Castle. The 1660 charter empowered the Company to send ships of war, men, and arms to their factories for defence of the same, and to make peace or war with any people not Christians. Authority was also granted for the fortification of St. Helena, which since 1651 had become the port of call on the voyage to India, and stringent provision was made for the maintenance of the Company’s monopoly.

On 21 May 1662, the marriage treaty of Charles II of England and Catherine of Braganza, daughter of King John IV of Portugal, placed Bombay in possession of the British Empire, as part of dowry of Catherine to Charles. After the treaty, some villages in Bombay remained under Portuguese possession, but many were later acquired by the British. Sir Abraham Shipman, who was appointed as first Governor and General of Bombay on 19 March 1662, was sent out with 400 soldiers to take possession of the island. He arrived with his fleet at Bombay on 18 September 1662 and demanded the cession of the island and its dependencies, conformably to the treaty between the King of England and the Crown of Portugal. Shipman demanded not only the island and harbour of Bombay, but also the island of Salsette, believing it to be included in the dependencies of Bombay. The Portuguese Governor of Bombay contended that the island of Bombay alone had been ceded, and on the ground of some alleged irregularity in the form of the letters patent, he refused to give up even Bombay. The Viceroy of Portuguese India declined to interfere. Shipman thus left Bombay and landed on the island of Anjediva, near Goa on 12 December 1662.¹¹ In 1664 they were transferred to Madras, in view of the war with Holland; but by the end of the year Shipman and a vast number of the men had fallen sick and died; and when at last they landed in Bombay, in March 1665, the four hundred had dwindled to one officer and one hundred and thirteen men.¹²

In 1668 Charles transferred Bombay¹³ together with the whole of its military stores, to the Company for a rent of ten pounds a year. In course of time Bombay became a flourishing commercial city and gained more importance as compared to Surat and was made the headquarters of the Company in India.¹⁴

Madras: On the east coast also the English set up a number of factories. In fact they had established their first factory on the East coast at Masulipatam in 1611.¹⁵ They established another factory at Armagoan, few miles from the Dutch settlement of Pulicat in 1628. In 1639 a British merchant named Day bought a strip of territory on the Coromandel Coast, about 300 miles to the south of Masulipatam. It was within the dominions of a Hindu Raja, and was about six miles long and one mile inland. It included a small island, which faced the sea and was defended on the land side by a river. Mr. Day agreed to pay the Raja a rent of 500 pounds a year in native coin known as pagodas, and the transaction was duly engraved on a plate of gold. A factory of brick was built upon the island, and mounted with cannon, and called Fort St. George. The Raja was perfectly content. He was too glad to get a rent of 500 pounds a year to raise any difficulty as regards fortifications or cannon. This factory was the germ of the city of Madras, on the coast of Coromandel. Weavers, washers, painters, and hosts of other Hindu artisans, flocked to the spot and eagerly entered the service of the British, and began to set up their looms and to weave, wash, and paint their cotton goods in the open air beneath the trees. Villages of little huts of mud and bamboo soon grew up on the sandy soil to the north of the island and factory. Each avocation formed a caste, which generally had its own quarters and its own head-man. In this manner a Hindu settlement grew up by the side of Fort St. George and was known as Black Town; and the whole locality, including Fort St. George and Black Town, was called Madras, and was the first territory acquired by the East India Company in India. In the next forty years of the building of the British factory, Madras was the pride and glory of the East India Company. Fort St. George, or White Town, was a European city in miniature. The whole of White Town was environed by an outer wall, sufficiently fortified to keep off an Indian army. Only Britons, or Europeans under British protection, were permitted to reside in White Town. This ultimately became the headquarters of the company’s settlements on the Coromandel Coast. The garrison consisted of two companies of European soldiers, and a large number of native guards, who were known as peons.¹⁶ In 1660 pagodas were coined at the mint at Fort St. George, under the agency of Sir Edward Winter, from bullion received from Europe.

Calcutta: In Bengal the East India Company had established a factory at Hooghly, by the dismantled Portuguese fortress; but were exposed to insolence and extortion from the Mogul authorities. The trade was enormously profitable, and had helped to defray the cost of the fortifications at Madras and Bombay. Saltpetre had been in large demand ever since the breaking out of the civil war between Charles the First and his parliament. Raw silk and opium were equally marketable, and all three products could be brought from Patna to Hooghly by the river Ganges. At Dacca, the old capital of Bengal, very fine quality of muslins was manufactured. It was said that every young lady in the British Isles who aspired to be a bride was anxious to be led to the altar in a cloud of Dacca muslin.¹⁷

In 1651 the Company opened factories at Patna and Kasimbazar. Permission to fortify Hooghly, frequently solicited, was persistently refused by the Mogul Emperor, and the armed force of the agency limited to an ensign and thirty men (Europeans) to do honour to the principal agent. This small body of men may be regarded as the nucleus of the Bengal army. In 1669, Bengal was still subordinate to Madras, but was allowed a chief agent and six members of council, similar to those at the latter agency. Trade was then so flourishing that a pilot service for the intricate navigation of the river Hooghly was established. In 1675 the Company placed the three agencies, Surat, Madras, and Hooghly on an equal footing, and similar gradation was granted to its servants. The importance of the Bengal agency, which, among its other factories, now included Malda and Dacca, rapidly increased, and in 1681 the stock allotted for its trade alone amounted to 230,000. Its agent was dignified by the title of Governor, and it was declared independent of Madras. By 1682, the Mogul Emperor started oppressing the flourishing Company and ordered 3.5 per cent, to be levied on all the goods as customs. In 1683, Mr. Gyfford was appointed agent at Fort St. George with the title of President over both the settlements of Madras and Bengal. Thus Bengal became again subordinate to Madras. Though the permission to raise fortifications in Bengal was still refused by the Great Mogul; a war ship of 72-guns was consequently dispatched from England to cruise the Bay of Bengal. In 1690 the Company secured the city of Calcutta from the Nawab of Bengal against the payment of rupees 1,200 per year.

The three Presidencies of Bombay, Madras and Calcutta were established by the end of the seventeenth century. From 1708 all English factories were placed under these Presidencies. Each Presidency was under a separate President who was also the Commander-in-Chief of military forces.

During the initial years the Company followed the policy of peaceful trade, advocated by Thomas Roe. It avoided all attempts for gaining territorial possessions, because it felt that it could prove ruinous to the English interests in India. However, towards the close of the eighteenth century a change took place in the policy of the English. Taking an advantage of the downward trend in the law and order situation in India, they began entertaining political ambitions and gradually adopted the policy of territorial acquisition. Due to the increasing disorder in the country the Company was obliged to make necessary arrangements for its own defence. In view of the changed circumstances Gerald Aungier, President of the factory of Bombay, informed the Court of Directors that “the times now require you to manage your, general commerce with the sword in your hands.” Accordingly, Josiah Child, the President of the Board of Directors of the Company approved of a change in Company’s policy in 1687. The British in India were advised to establish such a politic of civil and military power and create and secure such a large revenue to secure both as may be the foundation of a large well grounded sure English dominion in India for all times to come. As a result of this change in the policy of the Company, its activities began to acquire political nature and its trade interests also continued to expand.

The prosperity that the employees of the Company enjoyed allowed them to return to their country with the ability to establish sprawling estates and businesses and obtain political power. Consequently, the company developed for itself a lobby in the British parliament. However, under pressure from ambitious tradesmen and former associates of the company, who wanted to establish private trading firms in India, a deregulating Act was passed in 1694. This act allowed any English firm to trade with India, unless specifically prohibited by act of parliament, thereby annulling the charter that was in force for almost one hundred years. By an Act in 1698, a new “parallel” company, titled the “English Company Trading to the East Indies” was floated under a state-backed indemnity of £2 million. However, the powerful stockholders of the old company quickly subscribed a sum of £315,000 in the new concern, and dominated the new body. The two companies wrestled with each other for some time, both in England and in India, for a dominant share of the trade. B...