Journal of the Straits Branch of the Royal Asiatic Society/Volume 24/An Old Minute by Sir Stamford Raffles
AN OLD MINUTE BY SIR STAMFORD RAFFLES.
THE following interesting record was recently found amongst some old documents in the Singapore Treasury. It is signed by Sir STAMFORD RAFFLES, and the concluding portion of the minute as well as the final signature are in the handwriting of that officer. The date is June, 1823, still legible as when it was written, but the day of the date has been eaten out of the paper.
The Proclamation and the Minute which follows it may accordingly be accepted as one of the first official utterances of the founder of Singapore, after the transfer of the island from the Government of Bencoolen to that of Bengal some three years before its amalgamation with Penang and Malacca.
Apart from its intrinsic value as a state paper, this document is interesting when we compare and contrast the present state of our laws with the provisions there indicated and foreshadowed nearly seventy years ago.
As the Minute is reprinted in extenso, I need only draw the reader's special attention to the author's views upon gambling, prostitution, registration of deeds, adulteration, the sanctity of oaths, and municipal regulation, amongst many other points touched upon. The doctrine of the liability of publicans may raise a smile, but it is a theory which still finds support amongst the apostles of temperance in England, where the legal sanction of the publican's errors lies only in the hands of the exponents of the licensing laws.
The Lieutenant-Governor's views upon deportation will, no doubt, be read with interest at the present time: while his brief remarks upon the characteristics of the Malay race, which he knew so well, are as deserving of study and acceptance to-day as when they were penned.
H. A. O'BRIEN.
Singapore, 7th August, 1891.
PROCLAMATION.
Provision having been made by Regulations Nos. III and IV of 1823 for the establishment of an efficient Magistracy at Singapore and for the mode in which local Regulations having the force of Law should be enacted, and by whom such Laws should be administered, it now becomes necessary to state the principles and objects which should be kept in view in framing such Regulations, and, as far as circumstances may admit, to apprize all parties of their respective rights and duties, in order that ignorance thereof may not hereafter be pleaded on the part of any individual or class of people.
The Lieutenant-Governor is, in consequence, induced to give publicity to the following Minute containing the leading principles and objects to be attended to:—
MINUTE BY THE LIEUTENANT-GOVERNOR.
As the population of Singapore will necessarily consist of a mixture, in various proportions, of strangers from all parts of the world having commercial concerns at this Port, though chiefly of Chinese and Malays, it would be impracticable for any Judicial Authority to become perfectly acquainted with the Laws and Customs having the force of Law which are acknowledged in their own countries respectively by the varied classes of so mixed a population, and to administer them in such a manner as to preserve them inviolate even in the mutual intercourse of those classes severally amongst themselves, far more so when justice is to be done between the Englishman and Chinese, the Bugguese and Hindoo, and the like. On the other hand, to apply the law of Europe direct, with all its accumulated processes and penalties, to a people of whom more than nine-tenths will probably be natives of China and the Malay Archipelago, would be as repugnant to universal and natural justice as it would be inconsistent with the benevolence and liberality which has ever marked the British rule in India.
Under these circumstances, nothing seems to be left but to have recourse to first principles, to use every precaution against the existence of temptation to crime that is found consistent with the perfect liberty of those who have no evil intentions, and when these precautions fail, to secure redress to the injured party, when possible, and such punishment as will be most likely to prevent a repetition of the crime, either by the party himself offending, or by those who may be inclined to follow his example. Nothing should be endured in the Settlement, however sanctioned by the local usage of particular tribes who resort to it, that has either a direct effect, or notoriously strong tendency to endanger the safety or liberty of person or the security of property, and in the same manner no want of what are considered legal formalities in any country should debar a person from having substantial justice rendered to him, so that legal and moral obligation may never be at variance.
Taking this as the fundamental principle for the Laws of the Settlement, it may be presumed that no local Regulation would be enacted that the society if left to themselves would not desire to see carried into effect; no public institution or source of expense would exist of which the benefit was not obvious to the enlightened part at least, if not to the whole body of the community, who would therefore soon feel that the Government was not made to tyrannize over the people, but for their protection and happiness.
Under such a system of administration, it is not unreasonable to expect that every facility would be afforded by the mass of the population to the Executive in carrying the Laws into effect, for even the midnight robber and swindler have no desire that their own persons or property should be liable to those evils which they inflict on the rest of the community, and will readily join in their suppression when other delinquents are the objects of the terrors of the Law.
In carrying such a system into effect, it ought to be fully understood and maintained on all occasions, that while individuals are allowed to protect themselves as far as possible against wrongs, the redress of wrongs cannot be left to the resentment or the revenge of the parties conceiving themselves injured. That must be done solely by Government through the instrumentality of the Judicial and Executive Officers whom it appoints for that purpose.
No one therefore being allowed to be a judge in his own case, or to revenge his own quarrel, arms or weapons capable of inflicting instant death as habitually worn by the Malays become unnecessary, and, by dispensing with them, the greatest temptation to and power of doing to others the greatest and irremediable wrong in depriving them of life is in a great measure removed. If a man takes another's horse or cow by robbery or theft or under a mistaken idea that he has a right to the property in question, redress can be afforded to him as soon as he is convicted of his crime or discovers his error, but if from revenge or under false impressions a man is suddenly excited to take the life of a fellow creature, it is in vain that he afterwards discovers that he was misled by passion or had been deceived by appearances. It often happens too in these countries that a man who considers himself aggrieved by a particular individual and finding himself in possession of a sharp weapon, attempts the life of every one he meets indiscriminately, and without having any wrong at their hands to complain of. It is impossible to see who may or may not be guilty of such acts of inhuman cruelty, and therefore all should agree to lay aside the use of the weapon that is commonly employed by persons who then transform themselves to wild beasts by giving way to brutal passion.
On the same principle, it has been found by experience that those who indulge frequently in gaming and cockfighting, are not only liable to engage in quarrels with those who have won their money, but also that they are incited to acts of fraud and robbery in order to obtain the means of amusement or of attempting to retrieve their losses; it is therefore the duty of Government to suppress both gaming and cock-fighting as far as possible without trespassing on the free will of private conduct. No man should be allowed to receive any money either directly or indirectly for conducting a gaming table or cock-pit, and winners of money at such places should be compelled to restore the amount to the losers, and should on no account be permitted to enforce payment from those with whom they have gambled on credit.
Intoxication being a source of personal danger to the community, and the indulgence in that vice being a frequent cause of betraying those who are addicted to it to the commission of acts of dishonesty, it is the duty of a good Magistracy to throw every obstacle in the way. In the first place, the Officers of Police should be required to place in constraint any person seen in public in a state of intoxication until he becomes sober, and in the next place the vender of intoxicating articles who supplied him with the means of inebriety, should be visited with proof[1] and fined, and be liable to make good the amount of any loss which the person so intoxicated can prove he suffered during his inebriety from being unable to take care of himself; the extent of this fine must necessarily be discretionary on the part of the Magistrate, depending principally on the degree of inebriety produced; it should always be of such an amount that the fear of being subject to it may be sufficient to outweigh in the mind of the vender the temptation of profit in the sale of his goods, of course if it should appear in evidence that the individual was supplied with the means of intoxication for the purpose of taking advantage of him in that state, the object converts the simple misdemeanour into a crime according to the particular purpose contemplated, and further punishment to the guilty as well as redress to the individual injured must be awarded accordingly. The use of spirituous liquors, though innocent in moderation, becomes vicious when indulged in to excess; the consumption may be diminished by the enhancement of price, and in this way the indulgence may be made so expensive as to be only attainable beyond the bounds of moderation by those whose means give them a station in society that induces them to be guarded in their conduct for the sake of preserving the respect of those whose eyes are turned upon them; thus, while gaming as practised by the Chinese and cock-fighting by the Malays are absolutely pernicious in every degree in which they come under public cognizance, the use of opium and spirituous liquors may repressed by exacting a heavy tax in the way of License from the venders.
There are many important considerations that stand in the way of enacting laws against prostitution, indeed it would, in a country where concubinage is not forbidden, be difficult to draw a line between the concubine and the common prostitute; it is practicable however in some degree, and highly desirable, that the temptation to profit should not exist to induce the seduction of women into this course of life by others of their own sex; the unfortunate prostitute should be treated with compassion, but every obstacle should be thrown in the way of her service being a source of profit to any one but herself. It should therefore be declared unlawful for any person whatever to share the hire or wages of prostitution or to derive any profit or emolument either directly or indirectly by maintaining or procuring prostitutes, as for any parent or guardian of a female or any other person to ask or receive directly or indirectly any reward for bestowing a female in prostitution, any custom, law or usage of the country in which such female or her parents or her guardians were born notwithstanding, reserving only for a jury to advise what constitutes a legal obligation on the man to support the woman thus bestowed, or in other words a contract of marriage by local usage and what a connection of prostitution; the penalty must here also be modified by circumstances. It is much more criminal to induct a girl into prostitution than to facilitate her pursuit of vice after she has entered upon it as a profession.
It may be necessary to make specific Regulations for the protection of the community generally against fire, both with regard to the construction of buildings, the storing of gunpowder and combustibles, the manufacture of arrack, &c., &c., the power of infringing on a neighbour's property after a fire has broken out either for the purpose of access to the means of extinguishing it or to prevent its spreading to a greater distance.
Boatmen and parties offering themselves publicly for hire may also be subjected to regulation with the view of facilitating the attainment of redress when they are guilty of fraud and negligence.
Weights and measures of the acknowledged standard should be accessible to all, and those used in purchases and sales ought to be in strict conformity with such standards. Certain Magisterial Officers, therefore, should be employed to examine those used by persons who openly keep goods exposed for sale. When found defective the person in whose behoof they are used should be liable to fine proportioned to his supposed means and the apparent degree of fraud resorted to.
Fraud with respect to the quality of articles is a crime more readily detected, and may be left to private prosecution. In giving redress to the individual, punishment ought to be annexed in proportion as the fraud is of an injurious nature.
As a great check to fraud and falsehood, a general Registry Office for all written agreements or engagements which are liable to be made the ground of dispute before a Court of Justice, should be opened for the public. Regulation should be made for the authenticity of the document in the first instance, and either party or any party interested should be entitled to a copy, paying for the same a moderate fcc as a compensation for the trouble given to the Registrar and his Establishment, Precaution must of course be taken against the falsification or abstraction of such documents from the Registrar's Office. All deeds which may be so registered should have an avowed preference over one that is not so registered, unless the holder of the latter can shew a clear, distinct and satisfactory cause why he has not been able to have his deed registered and the onus of establishing this ought decidedly to rest on him.
Nuisances generally speaking may be safely left to the complaint of individuals in each particular instance where the cause of nuisance is not obvious to all, or directly injurious to particular individuals, as crowding the river with vessels, &c., when it may be made subject of special regulation.
All house-holders should be registered and all houses numbered; auctioneers and pawnbrokers should be placed under specific regulations, and none allowed to act as such without giving security for complying with the same and taking out a license for the purpose.
With respect to the employment of informers, it may be observed that Magistrates must have information, but no bad passion should be elicited in the procuring of it. No temptation to lead others to vice for the sake of reward for informing, no inducement to betray confidence, and the act of giving information should be treated as a public and honourable duty.
Precautionary measures being taken on the above principles for preserving the peace and good order of society and removing as far as practicable the immediate temptations to crime and violence, it next becomes necessary to define what shall be considered Crimes, what lawful punishments and how injuries shall be redressed.
By the constitution of England, the absolute rights of the subject are defined as follows:-
1st. "The right of personal security; which consists in a person's legal uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation."
2nd. "The right of personal liberty; which consists in the power of locomotion, of changing situation or removing one's person to whatever place one's own inclination may direct, without imprisonment or restraint, unless by due course of Law."
3rdly. "The right of property; which consists in the use, enjoyment and disposal of all acquisitions without any control or diminution save only by the Laws of the Land." There seems no reason for denying corresponding rights to all classes of people residing under the protection of the British Flag at Singapore, the Laws of the Land being such as are or may be enacted under the provisions of Regulation No. III of 1823, dated the 20th January last, with such others of a more general nature as may be directed by a higher Authority or which may necessarily accrue under the provisions of the Legislature and the political circumstances of the Settlement as a Dependence of Great Britain. Admitting these rights to exist, it follows that all acts by which they are invaded are wrongs, that is to say, crimes or injuries.
In the enactment of Laws for securing these rights, legal obligation must never supercede or take place of or be inconsistent with or more or less onerous than moral obligation. The English practice of teaching prisoners to plead not guilty, that they may thus have a chance of escaping from punishment, is inconsistent with this and consequently objectionable. It is indeed right and proper that the Court should inform itself of all the circumstances of a crime from witnesses as well as from the declaration of the prisoner himself. Denial is in fact an aggravation of a crime according to every idea of common sense. It disarins punishment of one of its most beneficial objects by casting a shade of doubt over its justice.
The sanctity of oaths should also be more upheld than in the English Courts. This may be done by never administering them except as a dernier resort. If they are not frequently administered, not only will their sanction be more regarded and in this way their breach be less proportionately frequent, but of necessity much more absolutely uncommon and consequently much more certainly visited with due punishment in all cases of evidence given before a Court of Justice.
The imprisonment of an unfortunate debtor at the pleasure of the creditor, by which the services of the individual are lost to all parties, seems objectionable in this Settlement, and it is considered that the rights of property may be sufficiently protected by giving to the creditor a right to the value of the debtor's services for a limited period in no case exceeding 5 years, and that the debtor should only be liable to imprisonment in case of fraud, and as far as may be necessary for the security of his person in the event of his not being able to find bail during the process of the Court and for the performance of the decree after judgment may be passed.
It is well known that the Malay race are sensibly alive to shame, and that in many instances they would prefer death to ignominy. That is a high and honourable feeling and ought to be cherished; let great care be taken to avoid all punishments which are unnecessarily degrading. Both the Malays and Chinese are a reasoning people, and though each may reason in a way peculiar to themselves and different in some respects from our own way of reasoning. This germ of civilization should not be checked. Let no man be punished without a reason assigned. Let the principles of British Law be applied not only with mildness but with a patriachal kindness and indulgent consideration for the prejudices of each tribe as far as natural justice will allow, but also with reference to their reasoning powers however weak, and that moral principle which, however often disregarded, still exists in the consciences of all men. Let the native institutions as far as regards religious ceremonies, marriage and inheritance be respected when they may not be inconsistent with justice and humanity or injurious to the peace and morals of society.
Let all men be considered equal in the eye of the Law.
Let no man be banished the country without a trial by his peers or by due course of Law.
Let no man be deprived of his liberty without a cause, and no man detained in confinement beyond 48 hours without a right to demand a hearing and trial according to due course of Law.
Let the people have a voice through the Magistracy by which their sentiments may at all times be freely expressed.
In fixing a scale of punishments, the first principle to be attended to is that they should be so graduated as to attach to each particular crime its due and relative punishment according to its enormity, and with regard to the nature of the punishments they should be as mild and humane as the general security of person and property admits of. Severity of punishment defeats its own end, and the laws should in all cases be so mild that no one may be deterred from prosecuting a criminal by considerations of humanity. No feeling interferes with justice in behalf of a murderer, let this crime be punished by death, and no other. Banishment is the next in order. Solitary confinement proportioned to the degree of the offence or pertinacity of the offender in his criminal course seems the least objectionable of all sorts of punishment. Disgrace may also be a form of punishment, but much caution is required in this respect lest a too frequent enforcement of the punishment destroy the feeling which can alone make it a punishment. Personal chastisement is only for the lower orders who are incapable of feeling the shame of disgrace and may probably be had recourse to in cases of wilful perjury where the falsehood of the witness is palpable and his object particularly mischievous. In all cases let it be considered as no less an object of the Law to afford redress to the party injured than to punish the offender. Compensation should in all cases, where it is possible, be made to the injured party to the extent of the means of the offender, as in the case of the Malay Bangoon where when the father is murdered the family are entitled to pecuniary compensation for his loss.
(Signed) T. S. RAFFLES.
With these views and principles the Lieutenant-Governor has this day transmitted to the Acting Magistrates such a graduated Scale of Crimes and Punishments as appears to him sufficient to meet the existing circumstances of the Settlement and to answer the end of substantial justice, with instructions that they will duly deliberate on the subject and after such revision as their local knowledge and experience may suggest, submit the same to the Chief Local Authority with their opinion, and in the form of a Code of Laws to be established for the Settlement and to be in force after publication by the Resident until rescinded by a higher Authority, or altered under the provisions laid down for the enactment of local Laws and Regulations.
The Magistrates have further been required to frame in the form of a Police Regulation, to be approved and published by Government, such further Regulations as may be advisable in that Department.
It is to be hoped that the provisions that will be thus made will be found sufficient for the public peace and the protection of person and property until circumstances may admit of the establishment of a more regular Court of Judicature, every arrangement that can be now made being necessarily of a provisional nature.
Dated at Singapore this day of June, 1823.
(Signed) T. S. RAFFLES.
- ↑ Sic, probably "reproof."