The Singapore Law Gazette

The Second Charter of Justice and the First Recorder (Part 1)

^* This is a much revised and truncated version of a much longer chapter written in connection with the Law Society’s Administration of Justice in Singapore 1819–1942 project for which the Society was awarded National Heritage Board Research Grant, HR035 for 2020–2022.

This is the first of a two-part article that documents the earliest days of the Court of Judicature in Singapore and the problems in its administration.

A New Charter and a New Era

Dutch claims over Singapore terminated with the Anglo-Dutch Treaty (Treaty of London) in 1824 and shortly afterwards, the British Resident at Singapore, Dr John Crawfurd, negotiated the outright purchase of Singapore from Sultan Hussain and Temenggong Abdul Rahman. To effect the terms of the Anglo-Dutch Treaty, the British Parliament passed the Transfer of Singapore to East India Company etc Act in 1825.¹An Act for Transferring to the East India Company Certain Possessions Newly Acquired in the East Indies, and for Authorizing the Removal of Convicts from Sumatra in 1825, 5 Geo IV c 108. On 5 July 1825, the British Parliament passed “An Act for further regulating the Payment of the Salaries and Pensions to the Judges of His Majesty’s Courts in India, and the Bishop of Calcutta; for authorising the Transportation of Offenders from the Island of St Helena; and for more effectually providing for the Administration of Justice in Singapore and Malacca, and certain Colonies on the Coast of Coromandel”.²6 Geo IV c 85. Section 19 of the Act authorised the Crown to “make such provisions for the administration of justice in civil, criminal, ecclesiastical, and Admiralty matters arisen and to arise within the said island of Singapore, and the said town and fort of Malacca and its dependencies”. Section 21 of the Act affected the formation of a new entity, the Straits Settlements, under the government of the Governor of the Council of Prince of Wales’ Island, Singapore, and Malacca. With this new arrangement, the three territories would be placed under the charge of a Governor based in Penang, and with Resident Councillors acting as chief civil officers in each of the three territories.

On 27 November 1826, the Letters Patent Establishing the Court of Judicature of the Prince of Wales’ Island, Malacca and Singapore was granted by the Crown. The original copy of the Charter arrived in Penang in August 1827. Thereafter, copies were printed by the Mission Press in Malacca and then distributed throughout the three Settlements. This Charter, more commonly referred to as the Second Charter of Justice was modelled after the First Charter of Justice, which had been promulgated for Penang in 1807,³Letters Patent Establishing the Court of Judicature for the Prince of Wales’ Island (London: E Cox & So, Apr 1807) as Crawfurd had proposed when appealing Bengal for a new Charter in 1824:

“The Charter of Justice for Prince of Wales Island has been in operation for 16 years and I am led to believe has given satisfaction and answered every purpose of substantial justice. It will therefore afford a safe precedent for any enactment in respect of this island”.⁴Crawfurd to Lushington, 23 Aug 1824, reproduced in Buckley (n 21) at 164.

The Letters Patent Establishing the Court of Judicature of the Prince of Wales’ Island, Malacca and Singapore (Second Charter of Justice) did not, however, arrive in Penang till August 1827.

A Court of Judicature had already been established in Penang by the First Charter of Justice, dated 25 March 1807⁵See JW Norton Kyshe, ‘Judicial History of the Straits Settlements 1786–1890’ reprinted in (1969)11(1) Malaya Law Review 38–179, at 77 (hereinafter ‘Kyshe’). and sat physically for the first time on 31 May 1808 with Sir Edmond Stanley (1760–1843) presiding as its first Recorder.⁶Ibid. See also, ‘The First Year of the Court Judicature of Prince of Wales’ Island 1808–9’ (1973) 15(1) Malaya Law Review 55–109. On the problems of finding appropriate accommodation for the Recorder and for the courtroom, see Marcus Langdon, Penang: The Fourth Presidency of India 1805–1830, vol 3, ‘Water, Wigs and Wisdom’ (Georgetown: Entreport Publishing, 2021) at 326–339. By the time the Second Charter of Justice arrived, Penang’s Court of Judicature had been in existence for almost 20 years, and cycled through four Recorders.⁷Kyshe (n 2) at 157. Sir John Thomas Claridge (1792–1868), the first Recorder to be appointed under the Charter, arrived in Penang in June 1826.⁸Ibid, at 95–96. It would appear that the late arrival of the Charter was due to some “negligence in some office at home”.⁹Ibid, at 96. In Singapore, the Charter was publicly proclaimed in the Singapore Chronicle on 5 September 1827.¹⁰‘Proclamation’ Singapore Chronicle & Commercial Register, 5 Sep 1827, at 1. The Second Charter of Justice was modelled largely on the First Charter of 1807 and the main difference was that it extended the Court of Judicature’s jurisdiction to cover Singapore and Malacca.¹¹Kyshe (n 2) at 96. The First Charter was, in turn, modelled on the various Charters that had been crafted for the three other Presidencies in India.

Establishing the Court and Its Jurisdiction

The Second Charter¹²Letters Patent Establishing the Court of Judicature at Prince of Wales’ Island, Singapore and Malacca in the East-Indies (Malacca: Mission Press, September 1827) (hereinafter ‘Second Charter’). As this Charter is a lengthy document with unenumerated provisions, references to any part of the Charter will be based on the pagination of this particular volume. established a peripatetic Court of Judicature based in Penang. As these settlements were quite sparsely populated, it made sense to have the permanent judicial establishment situated permanently in one of the settlements and have the judges travel on circuit to hold court and hear cases just as the judges of the circuit did in the United Kingdom. The Court of Judicature was an omnibus court with wide-reaching jurisdiction which the Charter defined as follows:

“That the said Court of Judicature of Prince of Wales’ Island, Singapore, and Malacca, … 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 Further, That the said Court of Judicature shall have and exercise Jurisdiction as an Ecclesiastical Court, so far as the several Religions, Manners, and Customs of the Inhabitants of the said Settlement and Places will admit.”¹³Ibid, at 21.

The Court of Judicature thus had the combined civil jurisdiction of the three superior courts of the common law – the Court of King’s Bench; the Court of Common Pleas and the Court of the Exchequer in England¹⁴See JH Baker, Introduction to English Legal History, 5 ed (Oxford: Oxford University Press, 2019) 44–59 (hereinafter ‘Baker’). – as well as the High Court of Chancery. Historically, each of these courts had developed separately after breaking away from the Curia Regis or Royal Council, England’s central governing body after the Norman Conquest.¹⁵AKR Kiralfy, Potter’s Historical Introduction to English Law and Its Institutions (London: Sweet & Maxwell, 1958) at 110–138 (hereinafter ‘Kiralfy’). See also, Baker, ibid, 54–57. The first of these courts to break away was the Court of Exchequer around the time of King Henry II (1133–1189). By the 19^th century, the Court of Exchequer exercised general equitable jurisdiction till 1841 when that jurisdiction was transferred to the High Court of Chancery.¹⁶Ibid, at 120. The Court of Common Pleas was the next set of courts to break away from the Curia Regis and emerged as a distinct set of courts sometime around 1234 to become the royal court for pleas between the King’s subjects in suits involving land, actions of debt, detinue and covenant, and it had the jurisdiction to issue the prerogative writs of Certiorari, Prohibition and Habeas Corpus.¹⁷Ibid, at 122.

In England, only Serjeants-at-Law (the most senior members of the Bar) had a right of audience in the Court of Common Pleas. The King’s Bench was the last of the three courts to separate from the Curia Regis and was so called because the King personally sat in the court up to the time of Edward I (1239–1307). The King Bench exercised a very wide jurisdiction and very soon took over many of the cases of the Common Pleas. However, it concerned itself primarily with matters affecting the Crown. By the early nineteenth century, the Court of the King’s Bench had both civil and criminal jurisdiction, original and appellate.

Judges of the King’s Bench were also justices of Oyer and Terminer and Goal Delivery. It was a superior court of record and had the power of judicial review, and was empowered to issue the writ of Certiorari to correct errors of law of inferior courts and tribunals.¹⁸Ibid, at 125–126. The Court of Judicature was also given the same jurisdiction as the Ecclesiastical Courts – those courts of the Church which applied canon law to spiritual matters in dispute.¹⁹On the development of Ecclesiastical Courts, see Baker (n 18) at 135–144. In addition to Church matters, the Ecclesiastical Courts typically dealt with matrimonial and probate matters. The Second Charter specifically provided that the Court of Judicature’s ecclesiastical jurisdiction extended to the grant of probates of wills and letters of administration.²⁰Second Charter (n 16) at 23–24.

The Court of Judicature’s criminal jurisdiction was that of a Court of Oyer and Terminer and Gaol Delivery. In England, the Court of Oyer and Terminer had jurisdiction to try cases of treason and felony while the commission of Gaol Delivery empowered the court to try every prisoner in jail for any offence whatsoever.²¹See generally, Richard W Kaeuper, ‘Law and Order in Fourteenth-Century England: The Evidence of Special Commissions of Oyer and Terminer’ (1979) 54(4) Speculum 734; William Renwick Riddell, ‘New Trial at the Common Law’ (1916) 26 Yale Law Journal 49. Taken together, the jurisdictions of the Court of Oyer and Terminer and Gaol Delivery gave the Court of Judicature full criminal jurisdiction. The Second Charter specifically provided that this would include the jurisdiction to try all cases involving ‘all Treasons, Murders, and other Felonies, Forgeries, Perjuries, Trespasses, and other Crimes and Misdemeanours heretofore had, done, or committed, or which shall hereafter be had, done, or committed within the said Settlement’.²²Second Charter (n 16) at 42.

The Problematic Sir John Thomas Claridge

Claridge’s Terms of Employment

The Second Charter also specifically named Sir John Thomas Claridge, a “Barrister in England of five years’ standing and upwards” as the first Recorder of the Court of Judicature.²³Ibid, at 14–15. Claridge (1792–1868) was the son of John Fellowes Claridge, a solicitor from Sevenoaks²⁴Marcus Langdon, Penang The Fourth Presidency of India 1805–1830, Vol 3 Water, Wigs and Wisdom (Penang: Entrepot Publishing, 2021) at 378 (hereinafter ‘Langdon’) and was educated at Harrow School and then at Christ Church College Oxford.²⁵Anne Falloon, ‘John Thomas Claridge: ‘my dearest friend’ (2014) 42(2) The Byron Journal 157-167, at 158. He was called to the Bar at the Middle Temple in 1818 before commencing practice at the English Bar. In the Spring of 1825, when news reached England of the death of Penang Recorder Sir Francis Souper Bayley, Claridge wrote to Charles Watkin Williams-Wynne (1775–1850), President of the Board of the Commissioners for the Affairs of India,²⁶This Board, more often referred to as the Board of Control, had been established by Pitt’s Act of 1784 by the British Parliament to control the affairs of the British East India Company. applying for the post of Recorder, to replace Sir Francis.²⁷A Statement Relating to the Appointment of Sir John Thomas Claridge, Knight, to the Recordership of Prince of Wales’ Island, Singapore and Malacca, in the East Indies and His Dismissal from that Office on 9^th March 1832 (London: Samuel McDowall, 1835) at 3 (hereinafter ‘Claridge Statement’). In July 1825, Claridge was interviewed by Wynne and thereafter informed that the King had approved of Williams-Wynne’s recommendation that Claridge be appointed to the post.²⁸Ibid. He was knighted on 30 September 1825, and at the time of his appointment under the Charter, he had just passed his seventh year of practice. As noted earlier, Claridge arrived in Penang on 29 July 1826, more than a year before the Charter naming him as Recorder arrived in Penang on 9 August 1827. Claridge offered his services even though the instrument of his appointment had yet to arrive and they were “generally accepted”, and he served “as a sort of assessor to the Lay Judges of the Court.”²⁹Falloon, at 96. However, relations between Claridge and the rest of the Penang establishment began spiralling downhill very soon after this. Claridge was a fussy, irascible and officious man who was quick to take offence and a stickler for protocol. Between the time of his arrival and his recall to London in 1829, he was a persistent thorn in the side of the Governor, Robert Fullerton (1773–1831), as well as his fellow judges on the Court.

It is important to understand the terms of Claridge’s appointment as Recorder before recounting the various episodes that led to Claridge’s recall to London in 1829 since this was the main cause of friction between him and his colleagues in the Straits Settlements. According to the report of the Parliamentary Committee that eventually exonerated Claridge of the various charges against him, the East India Company agreed to pay Claridge £4,000 per annum. Williams-Wynne had initially agreed to pay Claridge £5,000 per annum – the same salary as puisne judges in India – but the Directors of the East India Company offered him £4,000 but agreed to pay his “circuit expenses”.³⁰Claridge Statement (n 30) at 4. Unfortunately, the precise nature of this arrangement had not been made explicit to the authorities in the Straits Settlements who, quite understandably, were reluctant to pay Claridge’s circuit expenses out of its coffers.

While the Charter created the Court of Judicature and designed Claridge as its first Recorder, he was only one of three judges of the Court. The other judges were the senior Company officials – the Governor, and the Resident Councillor of the settlement where the court sat. Part of the cause of the discord between Claridge and Fullerton lay in the bifurcation of responsibility between the Crown and the East India Company. The Recorder was appointed by the King and represented the Crown, but his salary and other emoluments were the responsibility of the Company. The failure of the Company to make clear its commitment to pay Claridge’s circuit expenses resulted in Claridge ultimately refusing to go on circuit to Singapore and Malacca in January 1828. This failure, which Fullerton considered to be a blatant dereliction of duty, became the most serious of the six charges Fullerton levelled against Claridge before the East India Company’s Court of Directors between 1827 and 1829.

Roots of the Feud

The Second Charter of Justice established the Court of Judicature and stipulated that the Court would consist of three judges – the Governor as President, the Resident Councillor, and the Recorder – ranked in that order of precedence. However, in judicial matters, the Recorder was given primacy in that he held the casting vote in instances when the Court sat with a coram of only two and the Recorder was present. In cases where the Recorder was absent, the Governor held the casting vote.³¹Second Charter (n 15) at 12. This casting vote extended to other matters involving the judicial establishment and court rules as well.

The schism in relations between Claridge and Governor Fullerton began as early as April 1827 when Claridge offered to accompany Fullerton on a tour of Malacca and Singapore to hold a session of Oyer and Terminer but was snubbed. Fullerton ignored Claridge’s offer³²See Claridge to Fullerton, 11 Aug 1827, ibid, at 8. but proceeded to tour the three settlements accompanied by the “Secretary to Government, Commanding Officer of the Forces, Inspector General of Public Works and the whole of His Honor’s personal staff”.³³Prince of Wales Island Gazette, 28 Apr 1827. At this time, Claridge’s appointment had not yet been legally confirmed nor made public since the Charter was not to arrive on Penang’s shores for another four months. As such, Claridge had no official role in the conduct of the session of Oyer and Terminer at Singapore and Malacca, and Fullerton probably considered expense of having Claridge, his wife and servants tag along an unnecessary expense. Even so, Claridge considered this a major affront and later wrote to Fullerton that he was “not bound by any part of the Charter” to give his opinion to the Governor in Council until he receives an explanation as to “why the Courtesy which usually passes between Gentlemen, when one volunteers an act of Civility towards another, was withheld from me, on the occasion of my offering to attend the Governor in Council to Singapore and Malacca.”³⁴Claridge to Council, 25 Sep 1827, Minutes and Official Correspondence Between the Government and Sir John Thomas Claridge, Recorder (Penang: The Government Press, 1830) at 8–9 (hereinafter ‘Minutes and Official Correspondence’)

The first clash between Claridge and the Penang establishment occurred when Robert Ibbetson (1789–1880), Resident Councillor of Penang, took ill in September 1827 and was permitted to be absent from the settlement for six weeks. Kenneth Murchison (1794–1854) was appointed Acting Resident in place of Ibbetson and to effectuate court business during Ibbetson’s absence, Fullerton wanted Claridge to administer the judge’s oath and swear in Murchison as Judge of the Court, and requested Claridge’s attendance at the ceremony.³⁵Fullerton & Murchison to Claridge, 27 Sep 1827, Minutes & Official Correspondence (n 38) at 56. The punctilious Claridge objected to Fullerton for writing to him as Recorder to inform “the Court” of this development, chiding the Governor that the letter should have been written to the Judges of the Court of Judicature collectively.³⁶Claridge to Fullerton, 27 Sep 1827, ibid, at 56–57. Fullerton, not one to be cowed by such silly formalities, caused the Secretary, John Anderson, to search through the records for any letters written to the Judges collectively, found none,³⁷Anderson to Fullerton, 29 Sep 1827, ibid, at 57. and told Claridge so.³⁸Fullerton & Murchison to Claridge, 5 Oct 1827, ibid, at 58.

Claridge refused to attend the ceremony on the ground that it would be illegal for Murchison to be so appointed. To Fullerton’s relief, this impasse was resolved about in November that year when Murchison was appointed Resident Council at Singapore to replace John Prince (1772–1848), who had retired. Murchison was thus sworn in as a judge of the Court of Judicature on 13 November 1827.³⁹Claridge to Fullerton, 29 Dec 1827, ibid, at 61–62. In any case, Fullerton’s position was subsequently vindicated by the East India Company’s Court of Directors in July 1828.⁴⁰Astell to Fullerton, 2 Jul 1828, ibid, at 59–60.

Fullerton, who had his hands full with running the three settlements, and who was also anxious to distance himself from Claridge’s increasingly vexatious company, asked the Registrar of the Court to enquire “whether at any time the Governor or any member of the Council as Judges, assumed any direct interference over the transaction of the business of the Court, the Recorder being present”.⁴¹Kyshe (n 2) at 97. Having confirmed that there was indeed no such precedent, he announced that when the Recorder is in residence, he would not attend court, and neither would the Resident Councillor. Claridge, who was anxious not to shoulder the entire responsibility of court administration alone, persisted in getting Fullerton to attend Court:

“The Charter contemplates the perpetual presence in Court of the three Judges at each Station of this Settlement.”

When sitting as a Court of Oyer and Terminer, the Governor as the first in rank will try the first prisoner, the Recorder the second and the Resident Councillor the third, and so round again as they do at the Old Bailey in England. The Recorder must be present at every trial and in case matters of debate among the Judges arises, the Recorder must vote first. Whoever the East India Company make their Governor and Resident Councillor must sit on the Bench be they who they will, but the Recorder must be a Barrister of five years standing and is sent out to give the Judges the advantage (or not, as it may be) of hearing his vote before they vote themselves and they may agree with him or not as they please.⁴²Claridge to Fullerton, 15 Oct 1827, Straits Settlements Factory Records, vol 118, Reel 41.

Fullerton considered this preposterous:

“In the latter part of his Minute of the 28^th October, he distinctly indeed tells us he will not act at all but in our presence, thereby requiring from us what we cannot perform without the total abandonment of our executive duties, what none of our Predecessors have ever performed and what the spirit of the Charter does not require …” ⁴³Fullerton’s Minute to Court of Directors, 1 Nov 1827, Minutes & Official Correspondence (n 38) at 45.

Claridge was incorrect in insisting that the Charter contemplated “the perpetual presence in Court of the three Judges at each Station of this Settlement.” While the Charter states that the Court “shall consist of” the Governor, the Resident Councillor and the Recorder, it also states that they “shall hold their said Offices of Judges, severally”.⁴⁴Second Charter (n 15) at 10. Furthermore, as mentioned earlier, the Charter makes provision for the Court to sit as a coram of three, or two or as one, stipulating how a split decision may be resolved by giving the Recorder, or Governor, a casting vote.⁴⁵Ibid, at 12. In any case, this was certainly the position adopted by Fullerton whose told Claridge that while the absence of one of the Judges “renders the Court incomplete”, it “cannot utterly stop their Proceedings because any one Judge is competent to hold a Court.”⁴⁶Fullerton to Claridge, 27 Sep 1827, Straits Settlements Factory Records, vol 118, Reel 41. In the meantime, the official commencement of court business was delayed, pending the making of the official court seal which had been assigned to reputedly the “best Engraver in the Settlement”, and which was completed only on the evening of Wednesday 10 October 1827.⁴⁷Langdon (n 27) at 383–384; see also ‘Penang’ Singapore Chronicle & Commercial Register, 8 Nov 1827, at 3.