R v Willans [1858] 3Ky 16

Material Facts

On 20th November 1857 , one Chivatean entered into a contract with the
Right Honourable E Horseman of London , and the proprietor of the Valdor
Sugar Estate to work as a labourer in the said estate for 12 calendar
months from that date .In the month of December the same year , the
said Chivatean absconded from the estate and absented himself from the
contractual service.A complaint was lodged by the estate manager ,
Mr.Duncan Pasley , against the said Chivatean and then apprehended by a
warrant and brought before the Magistrate ,John Rogers Alexander ,
Esquire.He was sentenced to two months hard labour in the House of
Correction of Prince of Wales Island.
After the term of imprisonment , he didnt return to the said service
whereupon a complaint was being made against him.The said Chivatean
was then brought before Mr William Willians , Esquire , the then Justice
of Peace and Magistrate of Police of the Province .Mr.Wilians , after
examining into the nature of the complaint , he refused to adjudicate
on the said complaint , on the ground that the jurisdiction given by the
Act of Parliament , 4th Geo. IV , c34 , had been exhausted by previous
conviction and punishment .The present case was brought by James
J.White , Agent and Attorney of the Right Honble Edward Horsman
against Mr.Willans , to show cause why he should not hear and
adjudicate aforesaid matter.
Legal issues

Whether the said Statute was part of the law of the

settlement
Whether the particular Act was applicable to Penang.
2(B)On what grounds did Maxwell R
decide that neither;
I. The law of Kedah
II. The Personal laws of the Malay, Chinese and
Indian settlers; nor
III. English law

Could be considered the lex loci of penang at

the time penang was ceded to the east india
company?
(I) The law of Kedah

Kedah law could not have been the lex loci because when Penang became a British possession
without inhabitants to claim the right of being governed by any existing laws, and without
tribunals to enforce any , it would be difficult to assert that the law of Quedah continued to be
the territorial law after its cession.Acording to the general principle in English law that in a
ceded territory , the law of the previous sovereign country regarded as the lex loci, for the
doctrine would imply that it was the right of the previous sovereign or the soil itself but this was
not so as evident in Campbell v Hall.Even though Jamaica was taken from the Spain , Spanish
law was not in force there , after all the Spaniards had left the Island.The general doctrine
doesnt apply in a place when a country taken was a desert.
Secondly, as the laws of Kedah are Mohamedan laws and can only be administered by
Mohamedan judges and arbitrators , it would be impossible for the Christian English government
and people to accept and tolerate such a system as the lex loci in any British territory.
(II) The personal laws of the
Malay, Chinese and Indian settlers

The settlers came not as men assuming the dominion of a

desert land and setting on it as matter of right but as
strangers permitted as a matter of favour to dwell in a
country belonging to a quasi foreign power with the
government of which they had no concern.
(III) English Law
The Recorder considered Mr Light and the body of marines who first landed in Penang ,
not as British Colonisers but as a garrison to take possession of a ceded territory .
Assuming they were strictly British and had brought the law of England with them ,
Maxwell R said that law was only the personal law of the garrison , having considered
the nature and object of their inhabitancy in Penang.
Furthermore, he remarked on how in the first place, the law of England was not in
force for the punishment of crime .Mr.Light was instructed in 1788 to preserve good
order in the settlememt the best he could, not by punishing according to English or
any other body of law , but by confinement and other common punishment. While
the locals were dealt with by their respective Captains and by European Magistrates ,
but British subjects who committed offences went unpunished for the local Courts had
no juriusdiction over them.
There was no absence of laws in Penang, but whatever law was in
force , it was not English law .In civil matters, English law was
equally disregarded . Even the law of inheritance , which
Blackstone considered to be among the portions of law carried to
the Settlements by English settlers , was not exercised. The
settlers went further to endorse the trade of slaves and imposed
taxes on the people by the sole authority of the Governor-General
.These two practices were contrary to the principle of English
law.
2(c) if none of the above could
be considered the lex loci,
what law applied in Penang in
the first twenty odd years
after the British Occupation
 CRIMINAL MATTER
No territorial law
Commandant of the Garrison
Martial Law
Court Martial decides punishment
of crime

Therefore, English Law was not even recognized

as the law of its English inhabitants as reflected
clearly in the way the place was first run.
Kamoo v Basett (1808) 1 Ky 1
Facts:
The plaintiff was employed by the defendant to be a table-servant. In
that job, he was severely abused by the defendant. The plaintiff filed an
action of assault, battery [1] and false imprisonment against the
defendant.
Held:
The court held that although the Charter did not in definite terms
introduce English Law but its provisions were interpreted by the
judiciary as having introduced English Law, as it stood in England on 25
March 1807, into Penang to be their territorial law.
Even though so, the effect of it does not abolish the application of
various native laws or customs, but merely diminishing the
significance of these laws.
More to the point, the introduction of the Charter had brought in the
existing law of England also, except in some cases where it was
modified by expressed provision and had voided any law that
previously existed.
CIVIL MATTER

Succession, personal status, contract

and tort were enforced as there were
nationalities in the island

Nationalities were tempered/modified by

the law of nature/natural justice

Administration of martial law

Kamoo v Basset
 Conclusion

Different law applied to different groups,

legal chaos happened because there is no
proper penal execution in place.
2(d) Pick out from the judgment
all the factual evidence which
refuted any contention law
applied in Penang from the date
of 1786
FACTUAL EVIDENCE
CRIMINAL MATTERS
Journal of the Indian Archipelago under the title of Notice of
Penang:
Captain Light was directed in 1788 to reserve good order the
settlement as well as he could, not by punishing those who
offended against it, according to English or any other known law
but by confinement or other common punishment.

5 years later he is found carry out his instructions by whipping

and confining to the public works, sending off the island, the
thieves, house-breakers and other disorderly persons who he
complained then infested the island.

Sir W Burroughs, the Advocate-General (AG) gave it as his opinion,

that there was not any law by which the well-meant directions
given the superintendent of Prince of Wales Island could be
supported as far as they related to the trial or punishment of
murder, or any other crime at that island.
 CIVIL MATTERS
Mr. Dickens, who was appointed in 1800, partly at as Judge or
Assessor to the Lieutenant- Governor urge the Governor-General
should enact a Regulator upon the subject.

Even as late as 1823, Sir Phillips mention that the Rules which
according to British Law, govern the disposition and inheritance of
real proper have never been made applicable to our lands.

Sir Farquhar, the Lieutenant- Governor in applying to the Supreme

Government for instructions for the distribution of the effects of a
person dominating the island, who had died in the state, stated,
that there was here no law no any fixed customs.
THE END