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Colonial Cases

Newspaper Commentary, Singapore

THE SINGAPORE FREE PRESS & MERCANTILE ADVERTISER, 15 October 1846.

CORRESPONDENCE.

TO THE EDITOR OF THE SINGAPORE FREE PRESS.

   Sir,

          Having this instant received a copy of the Judgment given by the Hon'ble the Recorder is the case JOHANNA GOMEZ, versus FRANCISCO GOMEZ AND OTHER; and considering how applicable it is to the question of Patronage claimed on behalf of my August Sovereign the Queen of Portugal, and as affecting the incontestable proof of the right to that Patronage, and how base and tortuous are the arguments of the Propagandists, who without respect to Law or Justice are every day encroaching upon the Portuguese Missions, and of it as an important public Record and testimonial of facts elicited upon the above case, I in my official capacity of Consul General of Portugal, request you give it publicity in your columns, for which purpose I berg to send you a copy of the decision of the Court of judicature, dated Pinang August 1846, and signed by the Honorable Recorder, Sir W. NORRIS.

   My object is to impress upon the public mind the illegality of the conduct pursued by these Propagandists or Jesuits, and the futility of the arguments by which they attempt to justify it - and to shew that when we straggle hard in support of what we must considered a sacred trust, success must crown out efforts.

   I have the honor to be, Mr. Editor, with due consideration, &c.

   JOSE D'ALMEIDA, Consul-General of Portugal.

Singapore, 5th September, 1846.

JOHANNA GOMEZ Vs. FRANCISCO GOMEZ and others.

Memo: of Judgment,

   The pleadings in this case speak for themselves, and it is therefore needless to recapitulate them in detail.  Judgment was given at length in favor of the Defendants in May last, at Malacca, in presence of the parties or their agents; but as they have since expressed a desire to have the grounds of the Judgment in writing, I will endeavour to repeat them, in substance, as briefly as I can.

   The first Defendant, it appears, is the Pastor of the Portuguese Roman Catholic community of Malacca, assembling for Divine Service at the Roman Catholic Church of St. Peter, the yard pr enclosure of which constitutes the Burial Ground appropriated, from the foundation of the Church, to the interment of deceased Members of that community.  As such Pastor the first defendant has been, for the last 17 years at least, recognized and plaid by the British Government, and considered to have been duly appointed by or with the  sanction of the Curt of Portugal, and subject to the Spiritual direction and controul of his immediate Superior, the Portuguese Archbishop of Goa, as appears from the indorsement made by a former Governor of the Straits, Mr. Fullerton, on a Petition addressed to him by the first defendant bearing date the 28th November, 1829, and from the Monthly Abstract of the first defendant's Salary filed in the Resident councillor's Office at Malacca.

   Under a Contract, dated 10th July 1843, between the first defendant and Felicia Gomez, a member, as her ancester had been, of the same religious Community, the right of interment in a grave in the Chapel of the Ermida de Rozario (a covered building situated within the limits of the said burial grounds and so designated) was, for the consideration mentioned in the said contract, granted by the Defendant in perpetuity to the said Felicia and her Descendants; and the cause of the present proceedings by the Plaintiff a daughter of the said Felicia, was the Defendant's refusal to allow the body of her deceased Brother, Simao Gomez, to be interred in the said grave.

   The Defendant admits and justifies the refusal complained of on the ground that the deceased was schismatic in having entirely separated himself from the Church subject to the immediate jurisdiction of the Archbishop of Goa and joined the Mission inimical to the rights of the said Archbishop and to the Prerogative of the Queen of Portugal; to which the Plaintiff replies, in substance, that the secession of the deceased was justified by certain Bulls of the Pope of Rome, superseding the authority of the said Archbishop and appointing in his room the Revd. J. B. BOUCHO, who had, in his turn, superseded the Defendant by the appointment in his room of the Revd. PETER FAVRE, whose spiritual jurisdiction the said deceased had accordingly recognized and obeyed.

   The ground of the Court's judgment in favor of the Defendants were first, that the Court could not recognize, was indeed precluded from recognizing the authority of the Pope to interfere in anyway with the temporal or spiritual rights of any person or persons within the Court's jurisdiction; on which pint, by the way, it is satisfactory to be enabled to cite a corresponding decision of the Supreme Court of Madras, a few years since, (In the Matter of the Hill of De Monte.)   It is said indeed, in the Petitioner's reply, that official information of Mr. BOUCHO's appointment had been given by the Governor-General of India to the authorities in the Straits; but of this there was no proof, even if such an intimation would, of itself, have amounted to a sufficient recognition of the Pope's authority to be binding on this Court, or to alter in any way the legal rights of the parties.

   In the next place the COURT considered the deceased to have forfeited his right of sepulture under the Contract of 10th July, 1843, by his violation of the condition, necessarily implied therein, viz. That he should die in communion with the Church of which the Defendant is the recognized local superior; for if the Defendants had any authority and power to grant the right (and the Plaintiff is precluded by the Contract from saying ought to the contrary, as a tenant is estopped from contesting his landlord's title) it cannot be presumed that he intended to stultify himself by conceding the privilege to those who would afterwards deny his authority altogether. 

   Were it otherwise, could the Contract be held exempt from any such implied condition, then, of course, the deceased might, with equal safety to his asserted right, have embraced the Protestant faith, or even apostatized to the Mahomedan Creed or the Hindoo or Chinese Idolatries; since none of these would have amounted to a mire complete repudiation of all spiritual allegiance to the Defendant and his Ecclesiastical superior, the Archbishop of Goa,  than did the actual secession of the deceased. But as the argument for the claimant was not, for obvious reasons, pushed to this extreme point, and yet consistently might, had the Contract been absolute and unconditional, it follows that the condition specified was by necessary implication, part and parcel of the contract.

   And lastly, (though not particularly called upon to discuss the point, except with referenced to a contemporaneous Petition from several other seceders,) the Court was disposed to consider that secession, even without the violation, as in this case, of an express contract, was, ipso facto, a forfeiture of the common-law right of sepulture appertaining to all communicants with the local Church; for the case of seceders here cannot be assimilated to that of Dissenters from the Established Church in England, who are equally entitled with communicants to the privilege of interment in the Parish Burial ground, as being equally liable by law to contribute in tithes and rates top the support of the Established Church and its appurtenances; (that is, of they chose to assert the right; for in London and some other parts of the Kingdom the Dissenters generally prefer the less obnoxious course of providing a separate burial grounds for their own community:_) whereas here there exists no law by which to enforce any similar contributions from the Petitioners, nor any legal means of obligating the Defendant to accept such voluntary fees or offering as they might be willing to make in order to preserve their right of burial in the common burial-grounds, notwithstanding their secession from his Church.

   To contend, as the Petitioners do, that they are still entitled to interment in this burial-ground, as being in communion with the Church of Home though separated from the local Church, is to beg the question; since, as already explained, the Court is precluded from admitting the authority of the Roman Pontiff or his adherents to controul or in any way interfere with, the concerns of the local catholic Church recognized and supported by the Government of the country.

[Signed] W. NORRIS.

Pinang, August, 1846,

 

The North China Herald, 24 June 1879

SINGAPORE.

   The dull monotony of political life here, says the Tines, has been relieved somewhat during the past week by an incident which causes not so much comment as unspeakable surprise. The fact is the Supreme Court and the Executive have come into contact in a most unpleasant manner, with the result that an open breach is apprehended.

  The circumstances simply are that a Dutch subject who, it is alleged, committed an offence against the laws of his own country in Batavia, absconded and sought refuge in Singapore.  His extradition was demanded and the case argued before Mr. Justice Ford, who, on the 16th May,  delivered a carefully  thought out and lengthy judgment, interpreting the terms of the Extradition Treaties between the Government of Great Britain and the Netherlands Government, and deciding that the prisoner should be handed over to the Dutch authorities, but at the same time, on the application of his Counsel, leave was given to move for a rule to appeal before the Appeal Court, which will sit on the 23rd instant. Further, the bail upon which the prisoner was previously allowed to go at large, was increased at the request of the Counsel for the Consul-General for the Netherlands from $2,000, at which it stood, to $3,000.

   A few days after the judgment was delivered, the man was arrested by order of the Administrator, and immediately after a writ of habeas corpus was applied for and granted on his behalf. The returns of the Inspector-General of Police and the Superintendent of Prisons to the writs served upon them under this were that the prisoner was not in their custody, and it appears he had been handed over to the Dutch representative here by order of H.E. the administrator and  sent to Rhio.

   Mr. Justice Ford commented severely upon the conduct of the Government in interfering without having consulted the Court, and an application has been made that the Inspector General of Police and the Superintendent of Prisons shall be committed for contempt of Court.  This will be heard in a few days.

   The only deduction which can be drawn  from the whole affair is that the Government  do not appear to have shown a becoming respect for the dignity of justice, and before a native community any attempt to bring a Court of law and its dignitaries into disparagement or contempt is rather to be deprecated.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School