subjects of any other prince or state in amity with the king. Now the king cannot grant letters of denization except by letters patent, and without letters of denization, or naturalization an alien cannot, in this country, hold lands; nor can the Crown grant a licence to an alien to hold an office of trust; and yet in the charter of 1753, not only are aliens entitled to form part of the corporation, but by a subsequent clause, the President, or any three of them, two of whom may be aliens, are empowered to hold quarter sessions, and to try all offences except high treason. So that an alien, who, it is said, cannot hold lands or execute a trust, is by this charter, expressly invested with the highest functions of justice that of administering the criminal law of the country. II. With regard to the validity of the bequest to Lucknow college, the question is, here is a bequest for a specific charity, can that charity be established? That the gift is specific no doubt can be entertained; the particularity with which the testator directs the foundation and endowment of Constantia House leaves no room to contend that he has evidenced a general charitable intention. Then, can this specific bequest be executed? The Master, by his report, assumes it cannot; that report is confirmed, and is therefore conclusive; but the Court takes upon itself, at the hearing, to direct a new reference for further inquiry and information, and impounds the fund, appointing its own officer, the Accountant-general, receiver. The Master subsequently finds, that though the Supreme Court cannot give effect to the testator's intention, yet that the Governor-general in Council can; how, he does not say; but upon that finding, the Court purposes to pay the whole fund over Mr. Serjeant Spankie : We appear here, not as original parties to the suit in the Court below, but as representing the East India Company, who, in consequence of the decision of that Court, claim an interest in the property in question, and by the arrangement already alluded to, have been made respondents upon this appeal. The question now submitted to the Court, is one of infinite importance, not in consequence of the value of the lands, for they are of comparatively small account, but as affecting a very large portion of the territories in the East Indies. The population of Calcutta is the most mixed of any in the world, Portuguese, French, Armenians, besides natives; most of whom would 1836. MAYOR OF LYONS บ. EAST INDIA 1836. MAYOR OF LYONS v. COMPANY. be aliens under the laws of England, and yet have been accustomed to transfer lands, the title to which is now become insecure by reason of the new decisions of the Supreme Court. It is admitted, on all hands, that if the English law of alienage applies to lands in the East Indies, it must operate in this case. The only question, therefore, is, whether that law has been introduced. The principles which govern the establishment of English law in our colonies are to be found in Lord Mansfield's judgment in Campbell v. Hale (m), and in Chalmer's Opinions (n); and the whole question must turn, upon how much of the English law has been introduced into Calcutta. This must depend upon the force and effect of the charters, which have at various times been given to the East India Company, and which it will be necessary briefly to examine. It is perfectly well known that Calcutta was obtained by the East India Company by purchase from the proprietors, who were the Zemindars; and by an indenture, dated 22d July 1702, the old company conveyed to the new company, amongst other possessions, Fort William in Bengal, and the factories of Chutternuttee, with a large territory thereto belonging; which conveyance was recognised and confirmed by the award of Lord Godolphin, 29th September 1708. In 1726 the first charter for incorporating the mayor and aldermen at Madras-patnam, Bombay, and Calcutta, and for erecting a mayor's court, and other courts, at each of those settlements, was granted by King George the Second. In that charter it is recited, that"the United Company have, by the strict and equitable distribution of justice within the towns, forts, (m) Cowp. 204. Loft, 655. (n) 1 vol. 244. factories, and places belonging to the said Company, in the East Indies and other parts, very much encouraged, not only our own subjects, but likewise the subjects of other princes, and the natives of the adjacent countries, to resort to and settle in the said towns, forts, factories and places, for the better and more convenient carrying on of trade." And it then proceeds to establish a court of Oyer and Terminer, and provides, among other things, that the juries there assembled shall consist of the principal inhabitants of the place, without saying anything of their being the king's subjects; an omission which is found also in the subsequent charter of 1753, and which is an important fact, when we are considering how much of the English law has been introduced into that country. In consequence of the dispersion of the mayor and aldermen, and the dissolution of their authority, by the occupation of Madras by the French previous to the treaty of Aix-la-Chapelle, a new charter was granted in 1753, re-erecting the body corporate, by the name of "The Mayor and Aldermen of Madraspatnam," which was to consist of a mayor and nine aldermen; of whom seven, at least, together with the mayor for the time being, should be naturalborn subjects, and the remaining two might be foreign Protestants, the subjects of any other prince or state in amity with the king. It then constitutes a court of Oyer and Terminer and gaol delivery, composed of the mayor or any two of the aldermen; and provides that the jury should consist of the principal inhabitants of the district, and should take the same oaths as are administered in England; and the civil court is empowered to try all cases except suits between Indian natives of Madras, which are to be determined by themselves, 1836. MAYOR OF LYONS V. EAST INDIA 1836. MAYOR OF LYONS V. COMPANY. according to their own law, unless they shall choose to submit to the judgment of the Court. Besides the authority conferred by this charter, EAST INDIA the Company were, by treaty with the Nabob, Serajah Dowla, A.D. 1757, empowered to erect a mint, and coin money in Calcutta; and in the same year they acquired a Perwannah for the 24 Purgunnahs, which is a district immediately adjoining Calcutta; so that at that time, instead of Calcutta being part of the territories of the King of England, it was held under a native prince, by a company of merchants, paying a tribute in the shape of a sort of quit-rent. At the period we are now speaking of, the European population was inconsiderable, neither fixed or permanent, but constantly changing, and consisted rather of travelling merchants, and persons in their employ, than of any fixed or stationary body. Had the law of English tenures then prevailed, it would have been impossible to carry them into effect, as it is probable that in case of intestacy, no such person as the heir-at-law would have been to be found in the country. But, in truth, as far as the law of tenure existed, the Mahomedan must have prevailed. The natural course is to consider the law of real property according to the lex loci in the East Indies, that then would be the Mahomedan law; and the introduction of English law could not be to the same extent as in a country conquered, as Jamaica, or ceded, where the law of the mother-country becomes, ex concessu, the law of the colony. In such case the law previously existing is tabula rasa, and the new law prevails to its full extent. The prevalence of such a law in India has never been heard of till the recent decision in the Supreme Court of Calcutta. At Madras it has not even |