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|Charters and legal reforms, circa 1773 |
|An examination of the systems established by the Tea Act in America, Regulating Act in India and Maria |
|Theresa’s policies in Austria. |

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FOREWORD:

Lord Fredrick North, the second Earl of Guilford was the Prime Minister of England from 1770 to 1782. He was the Prime Minister during the passing of the Regulatory Act, 1773 in India and most of the American Revolution. During the 1745- 1780, Maria Theresia Walburga Amalia Christina (Maria Thereresa) ruled the Austrian throne.

In India, Lord North passed the Regulatory Act, 1773 which decreased the power of the East India Company, the Tea Act of 1773 in America to give the East India Company trade monopoly over tea trade while Maria Theresa made various reforms in the administrative and legal system.

There were various legal and administration systems present in and around the year 1773 and some of these are examined here: namely the Tea Act, 1773 (America), the Regulating Act, 1773 (India) and Maria Theresa’s legal and administrative reforms (from 1745 to 1780).

INDIA: THE REGULATING ACT, 1773

The officials of the East India Company amassed a lot of wealth while administering India. They used this ill gotten wealth to buy seats in the House of Commons. They also, purchased shares in the East India Company and manipulated its policies. The directors amassed wealth by declaring dividends. This, with the annual Divani Rights which cost Rs. 53 lakh[1], straied the treasury of the Company and it was verging on bankruptcy due to the corrupt acts of the company officials. The Company took a £ 1 million[2] loan from the crown, and thus the Crown exerted more control over the company. At this time, the Crown’s primary concern was to recover the money advanced to the company. Moreover, the Bengal famine and defeat at Plassey were also factors.

Keeping the recovery of the money in mind, the Crown exerted more control onto the East India Company. Due to the increase in regulatory powers of the Crown, the Act was called the Regulating Act.

The Act was promulgated to establish regulations for “the better management of the affairs of the East India Company as well in India as in Europe”. This Act effected drastic changes in the Company’s constitution. The term of Directors of the Company changed from an office of life to an office of one and then four years. Out of the total number of directors, ¼ of the total Directors retired by rotation every year. No director could be re-elected. These measures prevented stagnation. Since the directors were not re-elected, new directors would be elected, bringing new vigour to the Company. The tenure of 4 years was neither too short nor too long. It was not short enough to end just as the Director became accustomed to the Office and his duties. By retiring by rotation, there was a mix of seniority and novelty. The new members had fresh ideologies and the old ones had experience and assisted the new ones with their experience.

Voting power was restricted. A shareholder with shares worth £ 1000 had one vote while £3000[3] had two votes. By restricting voting rights, small shareholders who had a minor stake in the Company could not sway policy of the company. In this way, the Directors were not at the mercy of all the shareholders.

A Select Committee and Committee of Secrecy were set up to regulate the Company’s activities in India to ensure that they did not supersede or act in contravention to the Sovereign.

The Governor was renamed the Governor General. The Governor General and Council were given equal powers of vote, i.e., the Governor General had no veto power. However, since there were 3 Councils and the Governor General, a total of 4 members, there was a possibility that the house was equally divided. In such a scenario, the Governor General could exercise a casting vote to break the tie. The casting vote was in addition to his regular vote.

The legislation permitted the setting up of a Supreme Court at Calcutta that would be an equivalent to the Kings Bench. The Supreme Court was set up in Calcutta in 1774 by a charter issued by King George III. This court was to cater to British subjects, a vague phrase that would be interpreted to advantage of the court. The Governor General and Council and the Supreme Court were equal, rival powers, causing coflicts.

The court was a Common Law Court that could try every inhabitant of India residing in Bihar, Bengal and Orissa, provided their case was valued at Rs 500 and above. It was also a court of equity, modelled on the Chancery Courts in England. This court was the Chief civil and criminal court. It functioned as a court of Oyer Terminer and Gaol Delivery. The Supreme Court was an Admiralty Court that took care of disputes arising out of piracy and as the court for adjoining territories and islands. This court also acted as an Ecclesiastical Court, dealing with religious matters and functioning like the diocese in London.

The system of law apparent here is permissive legislation. Also, the creation of the Supreme Court altered the system of courts. This court was a court of record and had legal professionals acting as judges. The court was created as a court of first instance for British subjects in Bengal, Bihar and Orissa. The jurisdiction was extended to Indians for appeals for cases over Rs 100 from the Mofussil Courts. The Bench constituted 3 Judges and a Chief Justice. It supervised the lower courts. By bringing the lower courts under the Supreme Court, which was under the crown, the lower courts were accountable to the Crown indirectly, through accountability to the Supreme Court.

THE TEA ACT

Lord North’s Government faced the problem of a glut in the East India Company’s tea. There was also a problem of the smuggled, inferior tea that reached America. Tea from England was popular in America. Though the smuggled tea did little to affect the Company’s market share, the primary aims were to establish trade monopoly and to dispose the excess tea. By imposing taxes on imported tea to Ireland and the British Dominions in America, the company increased its revenue. The provision that gave the East India Company monopoly over the tea trade was the factor that created resentment in the Americans. The Act also encouraged export of cordage and entrepôt trade of rice.[4] The Act allowed the East India Company to directly export tea to America at a duty of 3 pence / lb[5]. By making the tea cheaper, the Crown hoped to get rid of the 1.8 million lbs of unsold tea. The tea was sold at prices that competed with the tea smugglers. This tea was much cheaper and better than smuggled tea. The tactic employed by the Crown here was dumping. This is the sale of goods at a price so low that it drives out all competitors, a practice which is now prohibited by various trade laws.

Many Colonists boycotted the tea, as the Act gave the East India Company and British traders an unfair advantage while selling the tea. The smugglers’ livelihoods were affected by this move. Women who manufactured tea substitutes out of local plants were adversely affected by this move.

Trade documents allowed the legal trade of the tea.

The people did not allow the three shiploads of tea to be offloaded at Boston, until it was promised that no duty would be payable on such imports. The people refused to allow offloading and purchase of tea and also the payment of the duty. The tea began to rot in the ship and the crew was on the shore without a job. The Royal Governor, Thomas Hutchinson, refused to allow the ships to return with the tea unsold.[6] An armed guard of patriots was posted at the wharf to prevent the tea coming ashore, while a naval blockade of the harbour prevented the ships from leaving. Mass meetings were held by the resistance leaders, Samuel Adams and Josiah Quincy, and the Bostonians were further buoyed up by messages of support which they received from all over New England[7]. On 16 December, when the Governor refused to let the ships sail, the Boston Tea Party took Place. People called themselves Sons of Liberty, dressed up as Mohawk Indians and threw the tea into the sea. The participants of this agitation shrouded themselves in secrecy and their identity is unknown till today.

The Tea Act led to agitation of the people and wastage of the tea. The Crown wanted to dump the tea onto the Americans by making it affordable, though taxed. Instead, the tea was dumped into the sea and the only benefactors were the fish who were able to sample quality tea in the bargain.

This event dealt with an establishment of an Act, a law, which conferred monopoly on British traders. It imposed tax on a dominion. By levying tax on a dominion, the British reiterated that they had colonised the place, as the tariffs were charged by Britain. Moreover, Britain had to be paid duty for goods that were not produced or sold by the Company.

MARIA THERESA’S LEGAL REFORMS

Maria Theresa was the ruler of Austria from 1745- 1780. The first reform she brought in due to her was the Pragmatic Sanction of 1713, passed by Charles IV, Maria Theresa’s father.[8] This amended the position of Salic Law which previously prevented the recognition and practice of female succession.[9] Though this Sanction was passed, lifting the ban on female succession, it was not upheld on the death of Charles IV, leading to wars of succession. Maria Theresa’s reign was largely spent asserting her right to the throne.

Maria Theresa’s of her policies were quite practical and relevant even in today’s scenario, though she contravened the constitution and at times national liberties.

Prior to her rule, there was an agglomeration of states under the Austrian Dominion. During her reign, she unified them to create the Austrian Empire. This was the first attempt to unify Austria.[10]

One of the most significant reforms was separation of the Judiciary from the Police, so that neither was corrupted.[11]

Through the Board of Censorship, the Board of Ecclesiastical Affairs and Law Reforms, she regulated and created her policy.[12] This prevents the person deciding the matter (judge) and the person alleging or investigating the matter (police) being the same. She also did away with religious control over the education system.

Her law reforms were “liberal in the extreme”. She freed peasants and the poor from the moderate slavery imposed by the priests and landowners. She made the commoners feel a sense of pride in being her subjects. This inclusion is very difficult to achieve. There is no system in place where all members feel a sense of pride and belongingness. She drafted a code of law and a system of punishment. However, these punishments were biased and unfavourable to Jews and Protestants.

The legal system she created a Supreme Office of Justice “Oberste Justizelle” [13] which was the highest court and the office of administration of justice. Each Land had its own court. Keeping in mind peoples’ sensitivities, customary law was applied in lower courts. The “Codex Theresianus” [14] was a codification of civil law which was completed in 1767.

The court was independent of the central government giving the court expediency and autonomy. A system of appeal courts was established. Maria Theresa ruled Austria when some people were very traditional while some were liberal thinkers or “enlightened”. The two groups had different ideologies and thus the policies had to be intermediate, appealing to both types of thinkers. This can be seen from Maria Theresa’s Criminal Code of 1768. It was largely based on custom but it appealed to the liberals on account of abolition of torture. This provision of abolition of torture was recognised by Maria Theresa long before the III Geneva Convention.

Maria Theresa also made autopsies compulsory, irrespective of the perceived cause of death. This is a procedure that is followed even today in Austria and this system has been adopted in India as well.

Maria Theresa brought in these changes gradually. Though many of them were excessively liberal, some of them have stood the test of time.

A COMPARISON AND CONTRAST OF THE SYSTEMS: COMMONALITIES AND DIFFERENCES

In 1773, the East India Company was indebted on two counts: firstly due to the manipulation of the company in India and secondly due to the unsold tea surplus.

The North Government, to recover this debt, reformed the administrative system in India to prevent misuse and misappropriation of the Company’s money and thus decreasing unnecessary losses. In America, East India Company’s tea produced in India was promoted. Tea was directly shipped to America from India instead of being routed through England. The Americans were taxed for tea imported by the company and this was the only available tea. These two Acts were directed to improving the financial standing of the Company in order to facilitate repayment of the loan take from the Crown.

Maria Theresa’s reforms included codification of laws and established a system of law that recognised customs. The Oberste Justizelle was the highest court in Austria while the highest court in India was the Supreme Court at Calcutta. The lower courts in Austria and the Mofussil and Sadar courts applied customary law, giving voracity to peoples’ beliefs and customs. The laws here were codified just as the Civil Procedure Code would later codify rules and procedures of civil law. Both systems had hierarchy of courts and the option of appeal. The Indian system was partial to the English while the Austrian policy was anti-Semitic, being critical of Jews and Protestants. Both systems had offices dealing with Ecclesiastical affairs. In India, they were handled by the Supreme Court at Calcutta while Maria Theresa constituted a Board of Ecclesiastical Affairs.

In contrast to Austrian law that abolished torture, Mohemmedan law used amputations and corporal punishments in India. Both systems had the judiciary separated from the executive.

George III was the King of England during the passing of the Tea Act and Regulating Act. He assisted Maria Theresa by providing vaccination technology.

These events were interlinked, each exhibiting unique flaws and advantages. The Supreme Court made higher levels of justice more accessible and affordable. However, the system suffered due to the vagaries of provisions and the dispute between the Supreme Court and the Governor General and Council. The Tea Act aimed at raising British revenues and getting rid of surplus tea but ended up depriving people from their livelihoods and created an uproar. Maria Theresa’s reforms were very apt in some senses, abolishing torture, unifying Austria, codifying laws and forming a system of appeal. Despite this, some of them were discriminatory and excessively liberal.

BIBLIOGRAPHY

1. Gandhi, B.M. Landmarks in Indian Legal Constitutional History

2. Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History. 6. Lexis Nexis Butterworths Wadhwa

3. US HISTORY http://www.ushistory.org/us/9f.asp

4. United Kingdom Tea Council http://www.tea.co.uk/the-boston-tea-party

5. "Pragmatic Sanction of Emperor Charles VI." Encyclopædia Britannica Online. 20 Aug. 2010 .

6. Crankshaw. , (1969) Maria Theresa. New York: The Viking Press.11–12.

7. Vehse , Eduard (1856). Memoirs of the court, aristocracy, and diplomacy of Austria. 2. Longman, Brown, Green, and Longmans. 181. Available on Google Books http://books.google.com/books?id=vZVHAAAAIAAJ&pg=PA241&dq=Maria+Thresa+Law+Reforms&cd=1#v=onepage&q&f=false

8. Maria Theresa: The Last Conservative http://books.google.com/books?id=YoS88h4M-t0C&pg=PA151&dq=Maria+Thresa+Law+Reforms&cd=2#v=onepage&q&f=false

9. Vehse , Eduard (1856). Memoirs of the court, aristocracy, and diplomacy of Austria. 2. Longman, Brown, Green, and Longmans. Available on Google Books http://books.google.com/books?id=vZVHAAAAIAAJ&dq=Maria+Thresa+Law+Reforms&source=gbs_navlinks_s

10. Foster, Nigel. Austrian legal system & laws. Available on Google Books. http://books.google.com/books?id=Pdw4URPmshMC&pg=PA13&dq=Maria+Thresa+Law+Reforms&lr=&cd=18#v=onepage&q&f=false . Last accessed 23 Aug. 2010.

11. Banerjee, Tapos Kumar. ‘History and constitution of the courts and Legislative authorities in India’.

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[1] Banerjee, Tapos Kumar. ‘History and constitution of the courts and Legislative authorities in India’.

[2] Gandhi, B.M. Landmarks in Indian Legal Constitutional History

[3] Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History. 6. Lexis Nexis Butterworths Wadhwa

[4] From original text of the Act. Available at http://www.ushistory.org/us/9f.asp

[5] United Kingdom Tea Council http://www.tea.co.uk/the-boston-tea-party

[6] United Kingdom Tea Council http://www.tea.co.uk/the-boston-tea-party

[7] United Kingdom Tea Council http://www.tea.co.uk/the-boston-tea-party

[8] "Pragmatic Sanction of Emperor Charles VI." Encyclopædia Britannica Online. 20 Aug. 2010 .

[9] Crankshaw. , (1969) Maria Theresa. New York: The Viking Press.11–12.

[10] Vehse , Eduard (1856). Memoirs of the court, aristocracy, and diplomacy of Austria. 2. Longman, Brown, Green, and Longmans. 181. Available on Google Books http://books.google.com/books?id=vZVHAAAAIAAJ&pg=PA241&dq=Maria+Thresa+Law+Reforms&cd=1#v=onepage&q&f=false

[11] Maria Theresa: The Last Conservative http://books.google.com/books?id=YoS88h4M-t0C&pg=PA151&dq=Maria+Thresa+Law+Reforms&cd=2#v=onepage&q&f=false

[12] Vehse , Eduard (1856). Memoirs of the court, aristocracy, and diplomacy of Austria. 2. Longman, Brown, Green, and Longmans. Available on Google Books http://books.google.com/books?id=vZVHAAAAIAAJ&dq=Maria+Thresa+Law+Reforms&source=gbs_navlinks_s

[13] Foster, Nigel. Austrian legal system & laws. Available on Google Books http://books.google.com/books?id=Pdw4URPmshMC&pg=PA13&dq=Maria+Thresa+Law+Reforms&lr=&cd=18#v=onepage&q&f=false . Last accessed 23 Aug. 2010.

[14] Foster, Nigel. Austrian legal system & laws. Available on Google Books http://books.google.com/books?id=Pdw4URPmshMC&pg=PA13&dq=Maria+Thresa+Law+Reforms&lr=&cd=18#v=onepage&q&f=false . Last accessed 23 Aug. 2010.