The Singapore Law Gazette

The Second Charter: The Making & Unmaking of a Template for Justice

Introduction

Since the beginning of this year, Singapore’s legal fraternity has been celebrating the Bicentennial of the Second Charter of Justice, dated 27 November 1826. While the Second Charter is perhaps the most important milestone in the establishment of Singapore’s modern legal system, we should avoid the temptation to view its promulgation and arrival as a singular ‘big bang’ moment in our legal evolution. It was, after all, the ‘Second’ Charter, the first having been issued for Penang in 1807. Even though the Charter is a rather long document, running into some 62 printed pages,¹The page count is based on Letters Patent, Establishing the Court of Judicature at the Prince of Wales’ Island, Singapore, and Malacca in the East-Indies (Malacca: Mission Press, 1827). we remember it for two main things: its establishment of the first court in Singapore and the introduction of English law to Singapore. In this brief article, I would like to consider two little-known facets of the Charter. The first is its origins, form and template; and the second is how it came to be superseded by other legislation by 1868.

Origins: From Bengal to the Straits

The ‘template’ for the first two Charters of Justice in the Straits Settlements may be traced to British India. The template grew out of the struggle between the East India Company’s (EIC’s) need for administrative control and the British Parliament’s desire for independent judicial oversight. By 1765, the EIC (established in 1600) had morphed from a trading company into a massive corporation exercising sovereign powers. The EIC had grown so powerful and financially precarious that the British Parliament felt compelled to intervene in its affairs. This was done by the British Parliament passing the Regulating Act of 1773,²13 Geo III, c 63. which imposed the first formal legal framework over the Company’s vast territorial acquisitions. Through this legislation, Parliament sought to check the unbridled ‘despotism’ of the EIC’s officials by installing a professional judiciary, independent of the Company’s payroll and directly answerable to the King.

To operationalise this, Parliament used a form of Letters Patent called the Royal Charter. Letters Patent are open legal instruments by which the Crown legislates to confer a public right, office, monopoly, or title. When such Letters Patent serve the specific purpose of incorporating a body politic or establishing a formal system of governance—such as a court or a colony—they are historically referred to as a ‘Charter’.³Readers will note that the word ‘Charter’ appears nowhere in the actual instrument itself, so the Second Charter of Justice is properly entitled Letters Patent Establishing the Court of Judicature of the Prince of Wales’ Island, Singapore and Malacca. The first Royal Charter establishing a professional judiciary was promulgated in 1774. Under this Charter, a Supreme Court consisting of a Chief Justice and three puisne judges – all qualified barristers appointed and knighted by the King – was established in the Presidency of Bengal.⁴Letters Patent Establishing a Supreme Court of Judicature at Fort-William in Bengal (London, 1774).

In 1786, the EIC acquired Penang (Prince of Wales’ Island) from the Sultan of Kedah. While the island was initially largely uninhabited, it quickly attracted a diverse population of Europeans, Chinese, Malays, and Indians. The EIC soon realised that it had insufficient authority under its extant charters to maintain order, protect property, or repress crime in a growing settlement.⁵See generally, JW Norton Kyshe, ‘A Judicial History of the Straits Settlements: 1786–1890’ (1969) 11(1) Malaya Law Review 38–179, at 38–76. However, it was exceedingly difficult to procure a charter of justice for the settlement as its administrators and rulers in Calcutta considered Penang insignificant and unimportant. From 1786 to 1800, Penang was governed by a series of Superintendents, after which Calcutta appointed George Leith as Lieutenant-Governor of the island. In the same year that Leith was appointed, the Governor-in-Council in Calcutta also appointed John Dickens, an English Barrister, as ‘Judge and Magistrate of Prince of Wales’ Island’.⁶Ibid, at 45.

Dickens, who arrived in 1801, was appointed under the EIC’s general governing powers rather than by Charter, leaving him on a tenuous legal footing since his authority, and that of his court and its jurisdiction, was not properly defined. Furthermore, there was no ‘code of civil municipal law… enacted by due and competent authority as the law’ of the island ‘for the government of the Judge and Magistrate in pronouncing a judicial opinion in this cause.'⁷Ibid, at 53.

By 1805, Penang had grown to such an extent that the EIC decided it was time for Penang to cease being a dependency of Bengal and become a separate Presidency. Concomitant with this upgrade in status, it was felt that a proper judicial establishment be instituted for the new presidency. The EIC’s Court of Directors accordingly petitioned the Crown for a ‘Charter for the administration of justice’ on the island.⁸Ibid, at 70. The First Charter – Letters Patent Establishing the Supreme Court of Judicature at Prince of Wales’ Island in the East-Indies – was accordingly promulgated on 25 March 1807. However, it only arrived in Penang in 1808, and the Court of Judicature sat for the first time in Fort Cornwallis on 31 May 1808.

By 1824, following the signing of the Anglo-Dutch Treaty (the Treaty of London), the Penang Presidency had acquired two more settlements. Malacca was transferred from the Dutch to the British under the Treaty of London, and the EIC immediately purchased Singapore outright from Sultan Hussein and Temenggong Abdul Rahman. In 1826, the three territories were organised as the Straits Settlements, which lasted until 1946. Quite obviously, the First Charter, which had been crafted for Penang, was territorially constrained and could not apply to the two new territories. A new Charter was necessary. I have discussed the great legal uncertainty leading up to the grant of this Charter in 1826 elsewhere⁹See Kevin YL Tan, ‘Establishing Order … and Law in Singapore: Part I’ Law Gazette Jan 2023, available at https://lawgazette.com.sg/feature/establishing-order-and-law-in-singapore/ (accessed 1 Feb 2026); and, ‘Establishing Order … and Law in Singapore: Part 2’ Law Gazette, February 2023, available at https://lawgazette.com.sg/feature/establishing-order-and-law-in-singapore-2/ (accessed 1 Feb 2026). and will thus focus on its effects and evolution.

The Template

For our purposes, I shall focus on clauses used to establish what I consider to be the four main pillars of the English Charters of Justice. The first pillar is the establishment of the court itself and its composition. Second, we have the jurisdictional clause setting out the ambit of the court’s competence; and third, the ‘applicable law’ clause which instructs the court on the law to be applied in cases brought before the court; and finally, the clause on who might be admitted to have the right of audience in the court. Let us now examine and consider the wording of the Bengal Charter of 1774¹⁰Letters Patent Establishing a Supreme Court of Judicature at Fort-William in Bengal (London, s.n. 1774) (hereinafter ‘Bengal Charter 1774’). and compare it with that used in subsequent Charters. I will argue that while the words used in the different Charters differ over time, the 1774 Royal Charter nevertheless served as the base template for subsequent charters of justice – including the Second Charter.

Establishment and Composition of the Court

The Bengal Charter established ‘within the Factory of Fort-William at Calcutta, in Bengal, a Court of Record which shall be called The Supreme Court of Judicature, at Fort-William in Bengal'¹¹Ibid, at 3. as a Court of Record. The Court would ‘be holden by and before One principal Judge, who shall be, and be called, the Chief Justice … and Three other Judges, who shall be, and be called, the Puisne Justices’ all of whom ‘shall be Barristers in England, or Ireland, of not less than Five Years standing.'¹²Ibid.

This phrasal formula is also used to establish the Court of Judicature at Penang in 1807: ‘That there shall be within the Factory of Prince of Wales’ Island, and the places now, or any any Time to be subordinate or annexed thereto, a Court of Record, which shall be called The Court of Judicature of Prince of Wales’s Island’ which would be constituted as a Court of Record.¹³Letters Patent Establishing the Court of Judicature for the Prince of Wales’ Island in the East Indies (London: E Cox & Son, Apr 1807) at 4 (hereinafter ‘First Charter’). A professional Recorder, being ‘a Barrister in England or Ireland, of not less than Five Years standing’ was also appointed for the Court.¹⁴Ibid.

However, the Penang court was not constituted as a fully professional tribunal but a hybridised court, fusing Royal Justice – embodied in the Crown-appointed Recorder – with Company Justice, embodied in the EIC’s Governor and Councillors sitting ex officio as lay judges. The Charter further provides that the Governor or any of the Councillors could hold court and any of the Councillors could hold court and exercise judicial power, even without the presence of the Recorder.¹⁵Ibid, at 6. Even within the Court, the Recorder ranked below the Governor but above the Councillors,¹⁶Ibid. even though in a hearing where the Recorder is present, the Recorder gets to vote or render his opinion first.¹⁷Ibid, at 7. In any case, the Charter mandated that if the Recorder was resident in the Factory, ‘no Court shall be holden, and … no Act shall be done by the said Court’ without his presence ‘unless the Governor or President of the said Factory … shall authorise the Court to sit and act in the Absence of the Recorder’.¹⁸Ibid.

The Second Charter sticks closely to this semantic formula. It established ‘within the Settlement of the Prince of Wales’ Island, Singapore and Malacca … a Court of Record, which shall be called The Court of Judicature of Prince of Wales’ Island, Singapore, and Malacca.’¹⁹Letters Patent Establishing the Court of Judicature for the Prince of Wales’ Island, Singapore and Malacca in the East Indies (Malacca: Mission Press, 1827) at 9 (hereinafter ‘Second Charter’). And, as in the First Charter, the composition of the Court was a hybrid mix of Royal and Company Justice. The Court would ‘consist of, and be holden before the Governor or President and the Resident Counsellor … of the Station where the Court shall be held, as two of the Judges of the said Court, and before one other Judge, who shall be called “the Recorder of Prince of Wales’ Island, Singapore and Malacca”, and which Recorder shall be a Barrister in England or Ireland of no less than Five Years’ Standing’.²⁰Ibid, at 10.

Because the Straits Settlements was territorially divided, the arrangements for court hearings and precedence were necessarily more complex. As in the First Charter, the Governor and Resident Councillors (one each in Penang, Malacca and Singapore) were recognised as judges in their own right even though the Recorder (if present) would continue to rank higher than the Councillors but on par with the Governor.²¹Ibid, at 11–12. The Court of Judicature could thus be convene and hear cases so long as any of the judges – whether Governor, Resident Councillor or Recorder or any combination of them – were present and sitting.²²Ibid, at 12.

The requirement that the Recorder be present in Court if he was residing in that particular Factory was repeated in the Second Charter.²³Ibid, at 13. In the case of the First Charter, this practically meant that the Recorder – being resident in Penang – would necessarily have to attend every session of the court except in the exceptional instance as authorized by the Governor. However, the retention of this clause could not guarantee the presence of the Recorder either in Singapore or Malacca since the compulsion applied only at the Recorder’s place of residence which remained solely in Penang until 1855. This was when the Third Charter split the Court of Judicature into two divisions – one in Penang, and the other in Singapore (covering Malacca) with two professional judges – the Recorder of Singapore and the Recorder of the Prince of Wales’ Island.²⁴Letters Patent Reconstituting the Court of Judicature of Princes of Wales’ Island, Singapore and Malacca in the East Indies in John Augustus Harwood (ed), The Acts and Ordinances of the Legislative Council of the Straits Settlements from the 1^st April 1867 to the 1^st June 1886 (London: Eyre & Spottiswoode, 1886) 1–34, at 3–4.

The Court’s Jurisdiction

Under the different Charters, the Court’s jurisdiction is typically defined only with reference to existing courts in England, which evolved piecemeal from the King’s household and revenue machinery over several centuries. The Court of King’s Bench grew out of the peripatetic curia regis and later took on supervisory, criminal and much general business; Common Pleas crystallised as a stationary court for civil suits between private persons; Exchequer developed as the King’s revenue court; and Chancery emerged as a separate equity jurisdiction responding to the rigidity of the common law. On the criminal side, commissions of Oyer and Terminer and of general Gaol Delivery gave judges distinct, named powers to ‘hear and determine’ serious offences and to clear the prisons. And of course, the High Court of the Admiralty had emerged as a distinct forum to deal with foreign merchants and sailors.

Because these jurisdictions had grown organically and separately and were well understood by the eighteenth century, it was far more logical – when drafting a colonial charter – to define a new court’s reach by reference to them than to attempt a fresh, exhaustive catalogue of powers from first principles. The Bengal Charter of 1774, which is organised by subject, sets out the Court’s jurisdiction by reference to the various English courts, with clauses scattered throughout the document. It would have general jurisdiction as that of the Court of the King’s Bench;²⁵Bengal Charter 1774 (n 10) at 4. The Charter does not explicitly refer to the jurisdiction of the Court of the King’s Bench but instead gives the Supreme Court of Judicature ‘Power and Jurisdiction … to hear, examine and determine … All Actions and Suits, which shall or may arise, happen, be brought or promoted …’. to exercise Ecclesiastical Jurisdiction,²⁶Ibid, at 25. to be a Court of Equity,²⁷Ibid, at 21. to be a Court of Oyer and Terminer and Gaol Delivery,²⁸Ibid, at 22. and to be a Court of Admiralty.²⁹Ibid, at 29.

The First Charter 1807 correspondingly grants the Court of Judicature similarly wide jurisdictional powers but using a different formula. Instead of separately listing the Court’s jurisdiction under different subject heads, the First Charter collapses the grant of jurisdictional powers in a single clause:

And it is Our further Will and Pleasure, That the said Court of Judicature of Prince of Wales’ Island … to have such Jurisdiction and Authority as Our Court of King’s Bench, and Our Justices thereof, and also as Our High Court of Chancery, and Our Courts of Common Pleas and Exchequer, respectively, and the several Judges, Justices, and Barons thereof, respectively, have and may lawfully exercise, within that Part of Our United Kingdom called England, in all civil and criminal Actions and Suits, and in Matters concerning the Revenue, and in the Control of all inferior Courts and Jurisdictions, as far as Circumstances will admit.³⁰First Charter (n 13) at 15–16.

It will be noted that this jurisdictional clause includes the jurisdiction of the Court of Exchequer, which was absent in the Bengal Charter of 1774. Ecclesiastical jurisdiction,³¹Ibid, at 17. Oyer and Terminer and Gaol Delivery³²Ibid, at 37. were granted through separate clauses³³Second Charter (n 19) at 21. in the Charter. The Second Charter of 1826 follows a similar formulation: King’s Bench, Chancery, Common Pleas, Exchequer and Ecclesiastical jurisdictions in one clause, and Oyer and Terminer and Gaol Delivery in another.³⁴Ibid, at 42.

A significant omission in jurisdictions when compared with the Bengal Charter is that of the Admiralty Courts. This extremely important and highly lucrative jurisdiction was most probably deliberately omitted from the Straits by both the First and Second Charters to protect existing vice-admiralty revenues and institutional interests in India. This deliberate, as opposed to negligent omission may be surmised from the fact that the legislation that empowered the Crown to constitute the Court of Judicature,³⁵6 Geo IV c 85, s 19. and the EIC’s petition for the grant of the Charter dated 29 May 1826³⁶On file with the author. both specifically sought the grant of Admiralty jurisdiction in the Straits. This omission was only rectified in 1837³⁷See 6 & & Will IV c 53 and Letters Patent conferring Admiralty Jurisdiction on the Court of Judicature of Prince of Wales’ Island, Singapore and Malacca, 2 Oct 1837. when the practical problems caused by the lack of Admiralty jurisdiction reached a critical point.

The Applicable Law

Beyond setting up a Court, the various Charters also stipulate the law that the Court may apply when resolving cases and disputes. The Bengal Charter required the Court to apply English common law in general civil and criminal cases.³⁸Bengal Charter 1774 (n 10) at 4. A more qualified approach to the application of English law was made in Equity (‘as nearly as may, according to the Rules and Proceedings of Our High Court of Chancery’)³⁹Ibid, at 21. and in the exercise of Admiralty jurisdiction (‘according to the Course of Our Admiralty … in England, without the strict Formalities of Law, considering only the Truth of the Fact, and the Equity of the Case’)⁴⁰Ibid, at 30. and Ecclesiastical Law (the same as that ‘exercised in the Diocese of London … so far as the Circumstances and Occasions of the Provinces and People shall admit or require.’)⁴¹Ibid, at 25.

By the time of the First Charter, the application of law clauses was somewhat more qualified, with greater attention paid to the subsisting customs and usages of the local inhabitants. In the case of general civil and criminal law, the court was enjoined to apply English law ‘as far as Circumstances will admit’.⁴²First Charter (n 13) at 16. Insofar as its Ecclesiastical jurisdiction was concerned, the Court of Judicature in Penang was to apply the law ‘so far as the several Religions, Manner and Customs of the Inhabitants of the said Factory and Places will admit.'⁴³Ibid. Insofar as punishments for crime were concerned, the Court was empowered ‘such Punishment … (which) shall not extend to Life or Limb, or perpetual Imprisonment or Banishment, or Transportation from the said Factory or Places aforesaid, and so as such Punishment shall not be repugnant to the Religions, Customs, or Manners of the Persons on whom it is to be inflected.'⁴⁴Ibid, at 42.

The formulaic phrases for applicable law in the First Charter were largely repeated in the Second Charter save for two differences. First, in addition to the general application of English law in civil and criminal matters ‘as far as Circumstances will admit’, the Court was also enjoined to ‘give and pass Judgment and Sentence according to Justice and Right'⁴⁵Second Charter (n 19) at 31. and to administer criminal justice with ‘due Attention being had to the several Religions, Manners and Usages of the native inhabitants.'⁴⁶Ibid, at 43.

Regulating Lawyers

The final key pillar of the various Charters of Justices deals with the admission and control of persons qualified or approved to appear before the courts. The Bengal Charter authorises and empowers the Court:

… to approve, admit, and enrol such and so many Advocates, and Attornies at Law, as to the said Supreme Court of Judicature… shall seem meet (sic), who shall be Attornies of Record, and shall be, and are hereby authorized to appear and plead, and act for the Suitors of the said Supreme Court of Judicature…; and the said Advocates and Attornies, on reasonable Cause, to remove; and no other Person or Persons whatsoever, but such Advocates or Attornies, so admitted and enrolled, shall be allowed to appear and plead, or act in the said Supreme Court… for or on the behalf of such Suitors, or any of them.⁴⁷Bengal Charter 1774 (n 10) at 8.

The First Charter adopted a slightly different approach. It provided that ‘no Person or Persons shall be permitted to appear or act as the Advocate, Solicitor, Attorney, Proctor, or Agent, or to plead, verbally or in Writing, for any Suitor or Suitors in the said Court … unless such Person or Persons shall have been previously permitted or licensed by the said Court to act as an Agent or Agents for the Suitors of the said Court generally, or specially for the particular Occasion or Occasions.'⁴⁸First Charter (n 13) at 27. The Court was further authorised and empowered ‘at its pleasure, either assigning a Reason, or without assigning any Reason whatever, to withdraw or vacate any Permission or Licence which shall, at any Time, be granted to any Person or Persons to act, generally or specially, as the Agent or Agents of any Suitors, or particular Suitor, of the said Court.'⁴⁹Ibid. The same regulatory clause appears, almost verbatim, in the Second Charter.⁵⁰Second Charter (n 19) at 32.

The End of the Charter

The Second Charter of Justice, augmented by the Third Charter of Justice in 1855 remained the constitutive instrument for the judicial establishment in the Straits Settlements right up till 1868. On 1 April 1867, the Straits Settlements became a Crown Colony in its own right and ceased being a part of the Bengal Presidency. With this constitutional change, the Straits Settlements acquired legislative powers of its own through a Governor-appointed Legislative Council. This major constitutional change led to the ultimate demise of the Second Charter of Justice. There was, however, no imperial legislation that abolished or repealed either the Second or Third Charters of Justice specifically. The Charters were simply rendered redundant and inapplicable over time as new laws were passed on the same subject matters governed by the Charters.

In 1868, the Legislative Council passed the Supreme Court Ordinance⁵¹Ordinance V of 1868. For the text of this Ordinance, see Straits Settlements Government Gazette, 26 Jun 1868 at 352. to constitute the Supreme Court of Judicature. Significantly, section 1 of this Ordinance provided:

1 The Court of Judicature of the Prince of Wales’ Island, Singapore and Malacca, established under Royal Letters Patent is hereby abolished, and the said Royal Letters Patent shall cease to have any operation in the Colony from and after the coming into operation of this Ordinance.

A plain reading of this section seems to make it clear that not only was the old Court of Judicature abolished, the Second Charter of Justice that established it also ceased to operate in the Straits Settlements. The new Supreme Court of the Straits Settlements was established as a Court of Record⁵²Section 2, Ordinance V of 1868. and consisted of three Divisions – one each in Singapore, Penang and Malacca.⁵³Section 10, ibid. This Ordinance did not, however, deal with the subject of applicable law.

Under the Third Charter of 1855, the old Court of Judicature comprised two judges – the Chief Justice stationed in Singapore and also covering Malacca, and the Judge of Penang⁵⁴Section 5, ibid. – as well as the Governor and Resident Councillors of the three Settlements. However, with the transfer of the Straits Settlements to the Colonial Office in 1867, the post of Resident Councillor had been abolished. In the same year, the new Straits Settlements Legislative Council passed the Judicial Duties Ordinance to remove the Governor as judge of the Court of Judicature,⁵⁵Section 1, Judicial Duties Act, Act III of 1867 (Straits Settlements). ending any executive role in the judiciary. The structure and composition of the Court were further refined in 1873, when a Court of Appeal was constituted as an intermediate appellate court⁵⁶Part IV, Courts Ordinance, Act V of 1873 (Straits Settlements). and more judges – a Senior Puisne Judge and a Junior Puisne Judge – were added.⁵⁷Sections 13 & 14, ibid.

Following roughly the template of the Second Charter, the new Supreme Court was conferred ‘such jurisdiction and authority as the Court of Queen’s Bench … and also the Court of Chancery and the Courts of Common Pleas and Exchequer.’ However, the new Court is to ‘have and exercise the jurisdiction vested, under the Letters Patent of the 10th of August 1855, in the Court of Judicature of Prince of Wales’ Island, Singapore and Malacca in Matrimonial cases so far as the several religions, manners and customs of the Inhabitants of the Colony will admit.'⁵⁸Section 23, Ordinance V of 1868. For criminal cases, the Court was constituted as a Court of Oyer and Terminer and Gaol Delivery, Assize and Nisi Prius and to exercise the same jurisdiction and authority of the same courts in England.⁵⁹Section 24, ibid.

Finally section 40 of the 1868 Ordinance empowered the Court to ‘admit and enrol such and so many persons as have been admitted Barristers-at-Law or Advocates in Great Britain or Ireland, or have been admitted Attornies, Solicitors or Writers, in one of the Superior Courts as Westminster, Dublin, or Edinburgh, or have been admitted as Proctors in any Ecclesiastical Court in England’. The Court could also, ‘upon examination’ and ‘approved of as competent to act as Advocates or Attornies’, ‘any persons of good repute not previously admitted’. The Court could remove any person so admitted ‘upon reasonable cause’.

The Courts Ordinance of 1868 repealed the Second of Charter Justice and supplanted the Charter in three of its four pillars – (a) structure and composition of the court; (b) jurisdiction of the court; and (c) control over the admission of persons entitled to plead before the court. The fourth pillar – on the applicable law – was not explicitly dealt with in the 1868 Courts Ordinance nor by its replacement, the 1873 Courts Ordinance.⁶⁰Ordinance No V of 1873 (Straits Settlements). It was not till the passage of the Civil Law Ordinance in 1878,⁶¹Ordinance No IV of 1878 (Straits Settlements). This statute came into force on 1 January 1879. that explicit provision stipulating that the Supreme Court shall administer ‘Law and Equity’ in ‘every civil cause or matter, commenced’ in the Court in accordance with the rules set out in the Ordinance.⁶²Section 1, ibid.