No. 5. Malay Land Tenure. Singapore and Penang were almost uninhabited islands when ceded to Great Britain; Malacca had been for centuries under Portuguese or Dutch law. The first occasion on which the Colonial authorities came into real contact with tenants of land under Malay customary law was at the cession of the populated Trans-Krian District to Penang in 1874. But even as far back as 1808 and 1813 Mr. Clubley, Secretary to Government, Penang, complained that "The Government having never formally put a stop to Mr. Light's general permission to clear and occupy lands, and never having been able from the want of a correct general survey to check the operation of that principle of Occupancy always acted upon by the Natives of Malayan countries and recognised by European Nations at new Settlements, many persons still continue to seize and cultivate lands that may be in the primitive state of forest or that may have been neglected by the original proprietors." When in 1874 the Government took over the TransKrian district the first paragraph of the first rules for the Settlement of the new holdings ran as follows:-† "Until English titles are issued an occupier of land cleared before the 13th July 1874 will be deemed to have only the rights given to him by Malay Law or Custom, viz., the right of possession as long as the land is cultivated, the customary taxes paid, and the customary services rendered, but no power to sell assign or mortgage.' Rule 6 runs : "No Malay document purporting to give the holder title to uncleared or abandoned land will be recognised." This is explained in a footnote: "Under Malay Rule leases were not given for jungle land. Any now produced may therefore be looked on as manufactured." Papers relating to Land Revenue administration, page 47. Turning from Penang to the Federated Malay States we find that the first land-rules issued in Perak (1879) state that every occupier of land "under Malay tenure must take out a certificate of title as written evidence of the tenure of his land. All lands are made liable (under S. 3 (f)) to the proviso that neglect to open up land entails forfeiture and that abandonment for three years also entails forfeiture. The same rules were adopted as the first Selangor rules. The land laws of these two States have been repeatedly amended since that time, but native holdings are still held under "certificates of title" or "extracts from the mukim register"; and the "cultivation clause" is still in force even for rubber estates. In the Negri Sembilan Malay land tenure is a far more complicated question owing to the rule as to tenure by women only and owing to the tribal interest in the land. But the rule as to title by occupancy prevails without question. Reference is invited to the remarks about land tenure on pages 27 to 30 and on page 37 of a pamphlet on Malay Law (Papers on Malay Subjects, Law, I). In this connection it is interesting to note (page 23) that in the Negri Sembilan the fees on opening up waste lands are paid to the local non-royal territorial chief and his family (the waris) and that the reigning prince or suzerain is expressly debarred from all participation in the land-revenue. "The raja does not own the land nor can he levy taxes; he is the fountain of justice and can claim a civil list." By all analogy (if other evidence were lacking) the universal Malay rule that title is acquired by clearing and cultivation would be true of Muar. But local evidence is not lacking, as the following reference to the Sultan of Johore's reply to the Studer claims will show. Sultan Ali in his grant of land to R. D'Souza (page 40, Appendix F) stipulates (as his first stipulation) that failure to cultivate shall entail forfeiture of his grant--3rd February, 1877. In his grant to Mr. Lind (page 41, Appendix G) Sultan Ali makes a similar stipulation-26th May, 1877. In his second and third grants (pages 43 and 45, Appendix H and I) to Mr. D'Souza, Sultan Ali makes the same stipulation. In his grant to Mr. Loring (page 46, Appendix K) Sultan Ali makes the same stipulation. [788-18] G 2 When the Temenggong of Muar described Sultan Ali's concession to Major Studer he spoke of it merely as "a letter to Major Studer who intends to clear land and open up a plantation." In face of these extracts from Sultan Ali's own grants it can hardly be contended that the law as to title by clearing and cultivation and as to forfeiture for noncultivation was not recognised in Muar. There is also evidence that from 1873 onwards official notifications were issued in Muar from time to time calling upon all persons to cultivate or at least prevent their holdings from relapsing into jungle, and saying that abandoned holdings would be liable to be taken up by strangers. A very little thought will show that in a semi-civilised forest-covered country without plans or maps or record-offices actual possession is the only possible evidence of title. Nor is there anything in the "cultivation clause" which is repugnant to European notions of right and wrong; it is the law of the Federated Malay States under British administration and it has even been introduced into the land-laws of the neighbouring Colony of the Straits Settlements. Evidence has been adduced to show that Sultan Ali's position was very far from being one which made it possible for him to use might to override immemorial custom and local hereditary authorities. Any concession he gave would necessarily be subject to the immutable custom of the country and to the assent of all the local Chiefs. Major Studer's own account goes to show that as an intending settler and bona-fide planter he was welcomed and supported and that no difficulty was put in his way in the matter of opening up land. It was only when he went beyond the local law by claiming rights over land that he was not in a position to cultivate that he came into conflict with the local authorities and finally the unfortunate facts that tobacco is not a form of cultivation suited to the Peninsula and that his followers mixed themselves up, rightly or wrongly, in local politics, brought his enterprise to an end. ANNEX 2. Papers relating to Malay Land Tenure. No. 1. (Reprinted from "The law and customs of the Malays with reference to the Tenure of Land," by William Edward Maxwell, C.M. G., Commissioner of Land Titles. Straits Settlements, Singapore. Printed at the Government Printing Office. 1885. N.B. The contents of this book had previously appeared in the "Journal" of the Straits Branch of the Royal Asiatic Society.) The Law and Customs of the Malays with reference to the Tenure of Land. Introductory. THERE are, probably, few subjects connected with the Government of a Malay population which are so little understood by Englishmen in the Colony as the principles which account for the point of view from which these people treat the possession of, and rights in, land. Successive generations of public servants in the Straits Settlements have been haunted by a bug-bear known as a bug-bear known as "the Malacca Land Question," which still makes periodical appearances, and is very far from having been set finally at rest: it is nearly sixty years old and has derived from the joint forces of ignorance and neglect an extraordinary vitality. From time to time a great deal of well-meant labour has been employed in trying to bring Asiatic customs and English law into harmony without the aid of legislation, and it need hardly be said that the task is an endless one. Two systems of tenure have been in operation in Malacca during the greater part of this century, and the present generation of officials have inherited a legacy of confusion in which time develops fresh combinations continually. In all the provinces of British India, British Administrators have taken the native revenue system as the groundwork on which to build up a detailed and consistent structure of land-revenue administration. Native tenure has been fully recognised; native law has been studied; the technical terms used in the vernacular to express particular documents, tenures and native officials have been preserved and are employed in all the Courts; nothing so fatal to the prosperity of the country and so unsuited to the native mind as the introduction of English real-property law has been dreamt of. Why was the policy of Indian Administrators as regards Malacca directly contrary to that pursued in British India? Principally, I think, because it was not soon enough discovered that the conditions of Malacca-an ancient Malay kingdom and then successively a Portuguese and Dutch Colony-differed fundamentally from those of the modern Settlements of Penang and Singapore, which had no population prior to their acquisition by the East India Company, and to which, therefore, any law of land tenure might be applied without the fear of disturbing existing rights, interests, customs, prejudices or superstitions. Malacca has never been the seat of Government during its occupation by the British, and the land laws and regulations formulated from time to time by officials, more conversant with the English practice introduced into Penang and Singapore, than with native law and custom, have never really fulfilled their purpose. Within the last nine years, certain Malay States on the West Coast of the Peninsula have fallen under the direction of British Officers subordinate to the Government of the Straits Settlements, and the latter are, therefore, to some extent, in a position similar to that of the Malacca officials earlier in the century. Unless future generations of public servants are to be confronted by a Perak, a Salangor, or a Sungei Ujong" Land Question," it is difficult to exaggerate the importance of studying very closely, and understanding very clearly, the nature of native rights in land. There is even a danger of imbibing and conveying erroneous ideas on the subject by the use of English technical terms. The first proclamation about land issued in Perak under the advice of a British Resident contained such terms as "fee simple," and in Larut, as early as 1876, land was being transferred and mortgaged with all English legal technicalities by the aid of two or three ignorant scribes who brought printed forms from the nearest British Settlement -Penang! It is perhaps doubtful if, to this day, the Malay law of land tenure and Malay thought and feeling regarding land are properly understood by Europeans in Native States, and, if not, there may be reason to fear difficulties in years to come. Besides persons in the service of the Native Govern |