Common law in the empire: precedents from India

Common law as a case-based system owed its shape and content to a history of judicial decisions. The pace of its transplantation within the empire quickened starting from the mid-nineteenth century, when law reports in Britain became reliable enough that precedents could be more clearly recorded and circulated among colonial judges and other legal personnel, and advice rendered more easily by the Colonial Office.³

To administer culturally diverse people effectively, the British concluded that in some colonies that had ‘civilized’ cultures, local native and religious laws should be recognized as long as they did not conflict with the British ideas of justice, equity and good conscience. This was true in India, for instance, where Muslim, Hindu and native customs had been regulating societies for centuries. Personal law, in particular marriage, inheritance or religion, was an area where the British normally chose not to intervene and apply English law. It became an expressed policy that on such issues English law was not usually applicable, and Hindu and Muslim laws should be observed. Consequently, a regime of local ‘personal laws’ sprang up, even as English statute law and legal principles were being introduced into British settlements in the subcontinent. But attempts to codify the indigenous law tended to infuse them with English legal assumptions, as well as British imaginings about native society and culture.4 Believing that most Indian traditions were based on texts, the British tended to ignore the place of custom in Indian legal tradition, basing their understanding of Hindu and Islamic law on ancient and classical texts translated by British ‘orientalists’, as well as on statutes and cases from India that applied and interpreted that written law.⁵

In general, then, British officials declared that they saw their mandate extending primarily to matters of economy and order, ostensibly leaving the domains of religion, culture and ‘private law’ under the control of local elites. Yet it was not always easy to enforce the distinctions between public and private, religious and secular law.⁶

Personal law in the Straits Settlements

In the SS a similar system of personal laws developed, where laws were applied to persons of a particular religion or race.⁷ The history of English law there was one of accommodating the law to fit local circumstances and the so-called ‘Mahometans, Hindoos, and Buddhists’, which loosely connoted the Malay, Indian and Chinese populations, their religious communities and customs.⁸

In the case of Hindu and Muslim customs, the SS courts inherited a corpus of legal codes, commentaries, translations and judicial precedents from British India that were frequently cited. Among the ‘Buddhists’ or ‘Chinese’ communities, however, the judges were entering uncharted territory.⁹ The laws of Imperial China were not applicable to a Chinese immigrant in the SS because the legal codes of the Qing Dynasty had no official status in the colony and, in any event, primarily focused on administrative and criminal matters that were governed by British rules of governance and English law. Civil issues, such as those relating to property or family, were ‘minor matters’ and were mainly dealt with by the members of communities themselves through extra-legal mechanisms.¹⁰

To complicate matters, there were few translated classical texts to help judges interpret local customs. A notable feature in the early SS courts was the lack of Chinese translators and interpreters. In 1833, when the East India Company’s (EIC) monopoly over trading with China expired and the British Parliament refused to renew it, the sinologists and translators who had been working with the EIC for the past few decades lost an important political base, and gradually lost touch with decision makers on Chinese affairs in London. There were no Chinese translators in the courts, and no easily available translations of classical texts to use as a basis for ‘Anglo-Chinese law’ for Chinese communities in the SS.11

Accordingly, in SS the law as it related to Chinese immigrants was mostly devised in courtrooms, where litigation provided opportunities for a discourse between colonizers and colonized. However, with very limited literature to refer to, and no Chinese translators, it was up to the judge to interpret and apply Chinese customs in reaching a verdict. The role of the judge was therefore crucial.

Chaotic beginnings for the new judicial system

In the early days of colonization of the SS (Penang, then Malacca and Singapore), the under-resourced British colonial government needed to make concessions to local customs and other native forms of judicial practice.¹² The charter of 1807, which introduced English law, and that of 1826, which provided for a court and Recorder, both allowed for justice to be administrated by ‘Native Captains’, and witnesses to be ‘sworn in the way most binding on their consciences’.¹³ The Recorder’s Court for its part was chronically understaffed. There was only one overworked professional judge in the SS, and he was based in Penang. As trade and population in the SS grew, one Recorder could barely handle all the court business that came before him.

Adding to the chaos, in 1830 the SS administration was reduced to a Residency (subdivision) of the Presidency of Bengal in India to save money, and most subordinate staff in the SS were let go. For almost two decades, little new blood was recruited into the senior ranks of colonial administration in the colony. Such financial constraints had severe repercussions on the judicial system.¹⁴

To complicate matters further, Sir Robert Fullerton, the first Governor of the SS, and Sir John T. Claridge, its first Recorder, did not work well together. Claridge was eventually dismissed for insubordination and recalled to Britain in 1829.¹⁵ In the absence of a Recorder, Governor Fullerton closed the courts, leaving the SS temporarily without a judicial system. Only in June 1832, under the presidency of the newly appointed Governor, Robert Ibbetson, did the Court of Judicature reopen in Penang.

In 1832, Singapore replaced Penang as the headquarters of the SS, although the Recorder and judicial establishment were still based in the former. European merchants in Singapore petitioned to have their own resident professional judge throughout this period. By the 1850s, Singapore had developed so rapidly that the merchants’ petition could be ignored no longer. In 1855, the Third Charter of Justice added a court based in Singapore, with its own Recorder and a Court Registrar.¹⁶ In 1855, two professional judges were recruited from Ireland: Sir Richard Bolton McCausland became the first Recorder of Singapore, and Sir Peter Benson Maxwell the Recorder of Penang.

Both McCausland and Maxwell were Irish protestants and had received their legal education at Trinity College in Dublin.17 Before going out to the colonies, most judges were briefed in London at special courses at the Inns of Court on mainstream legal principles. Both judges and legal staff who were sent overseas had received similar professional training and tended to operate within a common belief system about the rationality of English law and the superiority of both it and its institutions.¹⁸

In 1855, when Judges Maxwell and McCausland arrived in the SS, there were no organized records of previous judgments in the SS to use as precedents and the existing court staff was minimal. In 1858, Sir Peter Maxwell lamented the lack of law reports, stating that, in their absence ‘much uncertainty will continue to hang over the administration of Justice’ as each Recorder:

Neither McCausland nor Maxwell had any previous experience of Chinese culture.

The Baba Chinese community in the SS

Beginning in the sixteenth century, waves of Chinese immigrants settled in South East Asia including the Malay peninsula. One group, who came to be known as the Babas, the Straits Chinese, or Peranakan (local-born), and who came mostly from the mountainous coastal province of Fujian, first settled in Malacca, where the Portuguese had established a port in 1511. Many of the early Chinese pioneers married native women. Their descendants combined Fujian culture with Malay and Portuguese elements, over time discarding their mother tongue, although many retained Chinese customs and values such as ancestor worship, and observed them strictly. The term sinchew (literally, ‘spirit master’) was widely used by Baba communities and most Chinese immigrants to mean the worship carried out before the ‘spirit master tablet’, a wooden tablet with the name of the deceased relative on it.²⁰ The leaders of Chinese communities (known as ‘Kapitans’) built temples/public cemeteries in which to bury their countrymen who had died in a foreign land. As well as serving a community’s religious needs, a temple might also be the official administrative centre and a court of justice.²¹

When Singapore was acquired by the British in 1819 and declared a free port, it attracted a community of Chinese who worked as traders, merchants and shopkeepers. Notable among them were the Babas from Malacca. They arrived before other Chinese immigrants, and were already familiar with the European way of doing business. As Singapore grew, the Baba merchants prospered. They built stately homes by the sea, and filled them with expensive furnishings and artefacts from China and Europe. They gave their children an English education, so the younger generation became Westernized, seeing themselves as superior to native Chinese even though they followed Chinese ancestral traditions.22 By the 1880s, a British official observed that although the Babas adhered to the customs of their ancestors, they despised the real Chinaman. He recorded that he had seen Babas, on being asked whether they were Chinamen, answer in an offended tone: ‘I am not a Chinaman, I am a British subject, an orang putih (literally, a white man).’ Some of these Baba leaders also adopted British law in their attempts to preserve their landed properties. The most notable among them included Choa Chong Long, whose will, written in English, would cause a decades-long legal debate on sinchew.

Choa Chong Long and the tradition of ancestor worship

Choa Chong Long (1877–1838 蔡滄浪) was a prominent Malaccan-born Chinese merchant. His father, Choa Su Cheong (1750–1802) who came from Fujian, migrated to Malacca in 1765 at the age of fifteen. In Malacca he built up a fortune, became a community leader, and was appointed by the Dutch as a Chinese Kapitan in 1795.²³

Kapitan Choa promoted the kinds of worship he had learned in Fujian to the Chinese immigrant communities in Malacca. In 1801, he rebuilt the temple/public cemetery at Bukit China (literally, ‘Mountain China’) and endowed property to provide rent that would finance regular worship and prayers for those buried there. Chinese immigrants generally believed that their fellow countrymen who died in a foreign land would become homeless, hungry ghosts without the religious worship that provided them with proper food and clothing in the other world. As hungry ghosts they became harmful to the living, and thus to the Chinese community.

Choa Su Cheong, who also donated generously to maintain ancestor worship in his home village in Fujian,²⁴ made a point of recording several standardized prayers and rituals to guide his own descendants after his death, when they would perform ancestor worship for him in Malacca.²⁵ Thus Kapitan Choa passed on his beliefs in ancestor worship to his sons, one of whom was Choa Chong Long.

A British will to protect sinchew property

Choa Chong Long was well connected in British circles. When Stamford Raffles visited Malacca in 1810, he stayed at a house in Bandar Hilir on an estate owned by Choa. When Singapore became a British port, Choa moved there, bringing substantial capital from Malacca. With money, connections and fluency in English, he went on to become a successful opium farmer:

Choa took steps to protect his property (and himself in the afterlife) through British law. He prepared a will in 1836, written in English, to avoid disputes over his property. His estate included a number of houses and property in Malacca, and houses, shops, bazaars and plots of land in Singapore. In Singapore, on a plot under Government Hill, Choa erected what his will described as a ‘house’ and as a ‘building for charitable purposes’ for the performance of religious ceremonies ‘according to the custom of [his] ancestors’. After allocating a lump sum to each of his sons and daughters, Choa bequeathed all of his remaining property in Singapore and Malacca to three British gentlemen, and their heirs, executors and administrators forever, in a trust. They were to collect the rents and profits and, after making repairs to the building, use the residue to pay for ancestor worship, and feed his spirit and the spirits of his deceased wives. He referred to sinchew as ‘charity’ and specified that it should be performed at least four times annually, and more often as funds allowed.

Choa stated in his will that none of his children should be allowed to meddle with his estate. He claimed that by enforcing his will, the EIC would ‘encourage wealthy, honest and industrious Chinese and other settlers in the EIC’s territories to follow Testator’s example, and thereby ultimately advance the wealth, prosperity and permanency of their possessions’ in the new colony. By providing legal protection to the estate arrangement spelled out in his will, Choa claimed that the British would inspire confidence in their authority, and attract other wealthy Chinese merchants to settle and invest in properties in Singapore.27

In 1836, Choa left Singapore and visited China. In 1838 he was killed by burglars in Macau. The Singapore Chronicle described the incident as ‘ending prematurely the career of a useful citizen’.²⁸