The Singapore Law Gazette

Establishing Order … and Law in Singapore

The British East India Company 1819–1824 (Part 1)

This is the first of a two-part article which examines how justice was administered in the earliest days of British presence on the island.

The British in Singapore

Raffles and Sultan Hussein

The story of how Thomas Stamford Raffles and William Farquhar established Singapore as a British trading post on 27 January 1819 has been told and retold countless times to bear detailed repeating.¹For the most detailed account, see John Bastin, Raffles and Hastings: Private Exchanges Behind the Founding of Singapore (Singapore: National Library Board, 2014); originally published as John Bastin, The Founding of Singapore 1819: Based on the Private Letters of Sir Stamford Raffles to the Governor-General and Commander-in-Chief in India, the Marquess of Hastings, preserved in the Bute Collection at Mount Stuart, Isle of Bute, Scotland (Singapore: National Library Board, 2012). Suffice to say, Raffles, the clever and ambitious Lieutenant-Governor of Bencoolen was anxious to establish a British trading post south of Penang to break the Dutch stranglehold on the lucrative spice trade that dominated the region. He arrived in Singapore on 29 January 1819 and proceeded to install Tunku Hussain Shah (Tunku Long) (1776–1835), the elder of the late Sultan Mahmud III’s two sons, as Sultan Hussain Muhammad Shah of Singapore. He did this despite the fact that the Dutch, who had practically seized control of Johor-Riau-Lingga, had installed Hussien’s younger brother, Abdul Rahman Muazzam Shah (1780–1832) as Sultan.

By installing Tunku Long as Singapore’s Sultan, Raffles did two significant things. First, he treated the island of Singapore as a territory apart from the rest of the Johor-Riau-Lingga empire, which technically had sovereignty over Singapore. Second, he elevated Sultan Hussain to the status of a sovereign of an independent entity – the island of Singapore – with full sovereign powers of a potentate to enter into an international agreement with the British.²Kevin YL Tan, ‘Two Centuries of British Rule of Law: A Look Back to 1819’ (2019) Law Society’s Gazette, July 2019, available at: https://lawgazette.com.sg/feature/two-centuries-of-british-rule-of-law-a-look-back-to-1819/ (accessed 1 Jun 2022).

Singapore as Sovereign?

Under Johor’s political order at the time, the Yang di-Pertuan or Sultan ruled with the assistance of the Majlis Orang Kaya (Council of Influential Men). This Council included the Bendahara (Prime Minister); Temenggong, Laksamana (Admiral); Shahbandar (Harbour Master), and Seri Bija Diraja. The territory of Johor was divided into four fiefs and the Sultan’s territory. The fiefs were: Muar and its territories under the Raja Temenggong of Muar; Pahang, under the Bendahara; Riau, under the Yam Tuan Muda; and mainland Johor and Singapore under the Temenggong residing in Singapore. The rest of the lands belonged to the Sultan who resided on Bintan.³See RO Winstedt, A History of Johore (1365–1895) (Kuala Lumpur: Malaysian Branch of the Royal Asiatic Society, 1992), originally published as (1932) 10(3) JMBRAS. As such, Singapore was not a separate political entity with sovereign rights to entreat with other sovereign powers. From the perspective of international law, it was a masterful move enabling the British to legitimately ignore Dutch protestations over British incursions on their claim over the island.

Following two days of discussions, Raffles and Temenggong Abdul Rahman signed a Preliminary Agreement on 30 January⁴For the text of this Treaty, see Roland St John Braddell, The Law of the Straits Settlements: A Commentary (Singapore: Kelly & Walsh, 1915) 142–143. under which the British were permitted to establish a trading factory in Singapore. This very brief Agreement, with just five articles was signed by Temenggong Abdul Rahman as Ruler of Singapore and in the name of Sultan Hussein Muhuammud Shah, Rajah of Johor. Article 1 gives the British the right to establish a factory at Singapore “or other place in the Government of Singapore-Johor” while Article 3 required the British to pay the Temenggong an annual stipend of Sp$3,000 (Spanish dollars). Article 5 makes it clear that the Agreement required the ratification of the Sultan of Johor and thus provides that whenever “the Sree Sultan, who is on his way, arrives here, all matters of this Agreement will be settled”.

In the Treaty of Friendship and Alliance concluded between Raffles and Sultan Hussein Mohammad Shah dated 6 February 1819,⁵For the text of this Treaty, see ibid, at 144–147. the terms of the Preliminary Agreement were affirmed. Sultan Hussein was to receive Sp$5,000 annually and the British agreed not to interfere in the internal politics of Johor. Raffles appointed Farquhar as Resident and Commandant of Singapore, and shortly afterwards departed for Bencoolen, leaving Farquhar to administer the new settlement as best he could.

Legal Authority of the British East India Company (EIC) in Singapore

The EIC’s Authority⁶I have previously dealt briefly with these themes in Kevin YL Tan, ‘Britain’s Legacy of the Rule of Law’ in Tommy TB Koh & Scott Wightman (eds), 200 Years of Singapore and the United Kingdom (Singapore: Straits Times Press, 2019) 229–235

Under the Treaty of Friendship and Alliance signed by Raffles, Sultan Hussein, and Temenggong Abdul Rahman on 6 February 1819, the British were given “full permission” to ‘establish a factory or factories at Singapore, or on any other part’ thereof.⁷Article 3, Treaty of Friendship and Alliance concluded between the Honourable Sir Thomas Stamford Raffles, Lieutenant-Governor of Fort Marlborough and its dependencies, Agent to the Most Noble Francis, Marquis of Hastings, Governor-General of India, etc, for the Honourable English East India Company on the one part, and their Highness Sultan Hussain Mahummed Shah, Sultan of Johore, and Datoo Tumungong Sri Maharajah Abdul Raman, Chief of Singapore and its dependencies, On the other part. Although the Treaty did not set out the territory to be governed by the British settlement, a document entitled “Arrangements Made for the Government of Singapore” dated 25 June 1819 provided that the British would control the area stretching from Tanjong Malang on the west to Tanjong Katang [Katong] in the east, and on the land side, as far as the range of cannon shot, all round from the factory.⁸‘Arrangements Made for the Government of Singapore, in June 1819’ as reproduced in Thomas St John Braddell, The Law of the Straits Settlements: A Commentary (Kelly & Walsh, 1915), at 148–150, at 149; see also Charles Burton Buckley, An Anecdotal History of Old Times in Singapore (Singapore: Oxford University Press, 1984) (originally published by Fraser & Neave in 1902) at 58–59 (hereinafter ‘Buckley’). Tanjong Malang is today, the end of Shenton Way, near its junction with Prince Edward Road, while what was referred to as Tanjong Katong (or Deep Water Point) would be on the old coast as Still Road meets East Coast Road.

This jurisdictional area was small, stretching roughly 8km along the southern coast of Singapore island and 1.2 km inland from the southern shore.⁹This estimate is based on the fact that the 12-pounder smooth-bore British cannons of the early 19^th century had a range of about 1.2km, and Article 1 stipulated that the jurisdiction extended ‘as far as the range of cannon shot, all around the factory’. Article 6 of these Arrangements provided that all persons

“belonging to the English factory … or who shall hereafter desire to place themselves under the protection of its flag, shall be duly registered and considered as subject to the British authority.”

As to the law applicable to the “native population”, the

“mode of administering justice … shall be subject to future discussion and arrangement between the contracting parties, as this will necessarily, in a great measure, depend on the laws and usages of the various tribes who may be expected to settle in the vicinity of the English factory.”¹⁰Article 7, ‘Arrangements Made for the Government of Singapore, in June 1819’ (n 10).

The Port of Singapore was, by Article 12, placed “under the immediate protection and subject to the regulations of the British authorities.”

The Treaty of Friendship and Alliance thus gave the British jurisdiction over anyone who either “belonged” to the factory (such as employees of the British East India Company), or those who voluntarily submitted to British jurisdiction (most probably European and other merchants trading on the island within the factory zone). Subjects under the Sultan’s and Temenggong’s sovereign control lay outside this jurisdiction. The British also had no jurisdiction over the rest of the “native population”. No further arrangements were made for the administration of justice upon Raffles’ departure on 7 February 1819, the day after he concluded the Treaty.

In a memorandum to Farquhar on 25 June 1819 to follow up on various administrative matters, Raffles instructed:¹¹Raffles to Farquhar, 25 Jun 1819, Straits Settlements Records, L10: Singapore: Letters to Bencoolen, at 73–75.

“3. With regard to Police and the administration of Justice, it does not appear to me necessary in the present state of the settlement that any precise regulations should yet be laid down. As Resident you are necessarily vested with the authority of Chief Magistrate and will of course exercise that authority as is usual in places subject to British control but where British Laws may not have yet been introduced. As also the larger portion of the Population may in a certain degree be considered as camp followers and consequently subject to your military authority as commandant it will be left to your discretion to act in either of these capacities according to circumstances by which with the assistance of the native authorities you will be fully competent to provide for an efficient police and the settlement of such matters as do not require a more regular Judicial Proceedings. The Chinese, Bugguese and other foreign settlers are to be placed under the immediate superintendence of Chiefs of their own tribe to be appointed by you, and those Chiefs will be responsible to you for the Police within their respective jurisdiction.

4. In higher cases of a criminal nature for which the Military Regulations or usage may not provide, the Law of the Country as it exists must necessarily be considered in force; – the mode in which this law is to be carried into effect, will hereafter be defined as experience may direct and in the mean time the present mode may be observed as far as in your judgment may appear advisable for the attainment of substantial justice. In the conduct of these Proceedings you will of course exercise a personal superintendence and your sanction and confirmation is to be considered necessary to all decisions. It is to be hoped that cases of this nature will be of rare occurrence, and it is considered of importance that disputes between Natives should as far as possible be left to be settled among themselves according to their respective usages and customs.”

By this instruction, the following was made clear. First, there was no formal judicial establishment on the island, and Raffles did not see the need to establish one as yet. Second, as Resident, Farquhar was “‘necessarily vested with the authority of Chief Magistrate” and this power was exercisable over all places under British control – which was basically the Port of Singapore on the southern coast of Singapore. Third, all military personnel and “camp followers” were under Farquhar’s military jurisdiction as Commandant and were thus subject to military law. Fourth, in serious crimes not dealt with in the Military Regulations,¹²See Abstract of General Orders and Regulations in Force in the Honorable East India Company’s Army of the Bengal Establishment (Calcutta: 1812). Farquhar was to apply his “judgment” in such matter as to attain “substantial justice”. Finally, Farquhar was instructed not to intervene in disputes between Natives’ and leave them to be “settled among themselves according to their respective usages and customs.” Given that the island was still under the suzerainty of the Sultan and Temenggong, such disputes would presumably have been dealt with under whatever “native” or “local” law then extant; in other words, the lex loci of Singapore.

In exercising his jurisdiction as Commandant of the Settlement, Farquhar was obliged to administer British military law. The General Orders and Regulations in Force in the Honorable East India Company’s Army of the Bengal Establishment, 1811 – which applied to Singapore – dealt mainly with military disciplines and offences such as attendance at church services, desertion, mutiny, disobedience of orders, insubordination and were thus generally inapplicable to civilians, even if they were, what Raffles called, “camp followers”. Section VIII, Article 1 of the Regulations requires the military officials to use their “utmost endeavours” to apprehend any officer or soldier who is “accused of a capital crime, or of having used violence or committed any offence against the person or property” of British subjects “such as is punishable by the known Laws of the Land” and deliver up the accused to the Civil Magistrate. Anyone failing to do so would be “cashiered” (dismissed).¹³Ibid, at 526.

Some Jurisdictional and Legal Issues

The Resident’s wide jurisdictional remit meant that Farquhar had absolute discretion to determine the extent of his jurisdiction. In one instance, Farquhar suspended Richard Reid under his powers as Commandant for refusing to attend the services of a Baptist missionary, but was later told by Raffles that since Reid was a member of the civil establishment, the station’s garrison orders did not apply to him.¹⁴See CE Wurtzburg, Raffles of the Eastern Isles (originally published by Hodder & Stoughton, 1954) (Singapore: Oxford University Press, 1986) at 593.

In July 1820, there occurred the case involving Captain John R Gillon, who had been accused of rape on board his brig, Adventure. Farquhar arrested him and sent him to Penang for trial before the Court of Judicature as he had no jurisdiction to deal with such a major offence.¹⁵Farquhar to Raffles, 8 Feb 1821, Straits Settlements Records, L4, at 291. However, the Court ruled that it lacked admiralty jurisdiction to deal with the case¹⁶Halhed to Farquhar, Straits Settlements Records, L4, at 384–385. and Gillon was despatched to Calcutta with four witnesses and under armed escort.¹⁷Farquhar to Clubley, 8 Jan 1821, Straits Settlements Records, L4, at 257–258. Due to the death of a key witness, the case against Gillon was dropped, and Gillon launched a scathing attack on Farquhar, alleging that he had been mistreated and demanded substantial financial redress. This incident was to plague Farquhar for the next two years as the Calcutta government gave 1,000 rupees to Gillon and his crew to tide them over and then sought to claim that back from Farquhar. It was not till March 1822 that the EIC exonerated Farquhar of the charged and allegations.¹⁸Nadia H Wright, William Farquhar and Singapore: Stepping Out from Raffles’ Shadow (Penang: Entrepot, 217) at 152. See also, Lushington to Farquhar, 11 May 1821, Straits Settlements Records, L4, at 388–389.

And there was the case involving the arrest and detention of the captain of the first Chinese junk (from Amoy) that arrived on Singapore’s shores in February 1821 by the Sultan. Raffles had declared Singapore a free port from its inception. This meant that no port dues or levies were payable by merchants trading in Singapore. However, the two treaties did not explicitly forbid the Sultan from insisting upon his right and privilege that captains (or Noquedahs) of all visiting vessels to call upon him and present him a gift. Customarily, the size of this gift was commensurate with the size of the visiting vessel. It appears that on 19 February 1821, the first Amoy junk anchored at Singapore, and under the Sultan’s order, its captain was seized and “confined for a night at Kampong Glam in irons” because the present delivered was deemed insufficient.¹⁹Morgan et al to Farquhar, 21 Feb 1821, Straits Settlements Records, L4, 280–282. A group of seven merchants – John Morgan, Charles Scott, Alexander Guthrie, Peter Christie, Andrew Hay, Alexander Laurie Johnston, and Graham McKenzie – wrote urgently to Farquhar, asking him to do something about this arbitrary detention especially since the Sultan could not “have the shadow of a right to demand” such gifts which, in any case, was optional. If this seizure “was tolerated”, the Sultan “might, with equal justice, arbitrarily seize upon the Captain of an European vessel and if he refused to comply with his wishes, throw him into prison without trial and even without the knowledge or sanction” of the Resident as Chief Magistrate.²⁰Ibid. The merchants ended by asking Farquhar to order “that the Sultan … be ordered to make a most ample apology to the Captain of the junk and also be ordered to desist in future from laying claims to presents from any strangers that may visit the port”.²¹Ibid.

Farquhar, who had been apprised of the detention on the day of its occurrence had already investigated the matter and concluded that the merchants had gotten their facts wrong, and that the Chinese captain had been arrested and detained because he had failed to pay the Sultan “the usual complimentary visit on the arrival of the junk” and not because the customary gift was inadequate.²²Farquhar to Morgan et al, 22 Feb 1821, Straits Settlements Records, L4, In any case, Farquhar ascertained that the Chinese captain was confined for only four or five hours in the afternoon of the 19^th before being released at Farquhar’s request and “carried to a private house of one of the Sultan’s Attendants and placed in the stocks”.²³Ibid. In closing, Farquhar warned the merchants against collective agitation against the Sultan and assured them of his “unremitting attention” of British interests on the island whilst also ensuring that “the respect due to the Native Authorities established here and on no account to admit of any indignity or insult being offered to them with impunity.”²⁴Ibid.

Unsatisfied, the merchants pressed their point regarding the “optionality” of gifts from visiting vessels to the Sultan, arguing that this practice had hardened into a convention that amounted to a tax or to requiring vessels to pay port dues in a “free port”.²⁵Johnston et al to Farquhar, 23 Feb 1821, Straits Settlements Records, L4, 288–289. Farquhar, who was obviously in a dilemma over this matter, since that the British had no sovereign rights over the island, nor indeed even the port area, but merely had a licence to trade. The tensions between the Malay rulers and the British had, to some extent, been personally mollified by Farquhar, who was an “old hand” in Malaya (having arrived in Malacca in 1795) and had good relations and was on good terms with most of the native rulers in the region. Farquhar proved adept at navigating the unspoken and unwritten spaces of law, legality and legitimacy insofar as the settlement of Singapore was concerned. He knew the Malay mind well and he knew that while the Sultan and Temenggong were happy to allow the British to trade on the island in exchange for the stipends they received, they nevertheless considered it a “native port” rather than a “British port” and thus sought to exercise their authority accordingly. Raffles, writing in 1823, disparaged Farquhar for not enforcing the terms of the treaty as follows:

“The advantage which had been taken of the general terms in which, from political considerations, it was deemed most advisable that the treaty with their Highnesses the Sultan and Tumongong should in the first instance be expressed, and the extraordinary principle assumed by Lieutenant-Colonel Farquhar, and maintained by him in opposition to my authority, that the disposal of the land was vested in the native chiefs, that the government of the country was native and the port a native port, rendered it indispensable that these points should be fully explained and more clearly defined, and as that officer had also permitted various exactions and privileges to be enjoyed by their Highnesses incompatible with the freedom of the port.”²⁶Raffles to Supreme Government, 7 June 1823, reproduced in Buckley (n 10) at 119–121, at 120.

As Carl Trocki put it:

“The Temenggong and the Sultan were acting as if Singapore was their entrepot, and they did as they would have at Riau. As maritime chiefs, they had traditionally been entitled to a share in the wealth and status that came with the entrepot. To them, Singapore was simply a slight adaptation of the typical Malay port which had sustained their ancestors for centuries. Raffles, although he must have been aware of this, saw things from quite a different viewpoint …”

To Raffles, Singapore was new; it was his own creation. Yet to the Malays, it was simply one more variation on a very old theme. Practically every Malay state known to history had been based on a trading city. In the maritime world, the entrepot was the major political structure. If a ruler sought power, his aim was to control the port. The Malay chiefs as Singapore were aware of the significance of the port, and the treaties reflect the demands they must have made on the Europeans. The trading city had always been the focal point for the political forces of the Malay world. The Malay chiefs may not have foreseen the extent of Singapore’s success, but they must have known that the city would soon dominate the region. From the beginning, it was they intention to have a share in its power.²⁷Carl A Trocki, Prince of Pirates: The Temenggongs and the Development of Johor and Singapore 1784–1885, 2 ed (Singapore: NUS Press, 2007) at 64–65.

This mismatch of understandings and expectations on the nature of British presence in Singapore and its jurisdictional reach created a great deal of animosity between the native rulers and the British. This would fester right up till 1824 when the British negotiated a cession of the island and took sovereign control of Singapore.