Six Widow's Case

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CHOO ENG CHOON, CHOO ANG CHEE v. NEO CHAN NEO, TAN SEOK YANG, CHEANG
CHENG KIM, LIM CHEOK NEO, MAH IMM NEO, AND NEO SOO NEO
STRAITS SETTLEMENTS LAW REPORTS
LAW
6 AUGUST 1908
Counsel:
For the plaintiff - E.R. Koek
For the Neo Chan Neo - Donaldson & Burkinshaw
For the Tan Seok Yang - R.G. Van Someren
For the Cheang Cheng Kim - Wee Theam Tew
For the Lim Cheok Neo - Battenberg & Chopard
For the Mah Imm Neo - Montagu Harris
For the Neo Soo Neo - Allen & Gledhill
JUDGMENT
LAW AG. C.J. delivered the following Judgment:-
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In this case the first question we have to consider I think is, whether a Chinaman by Chinese law or
custom can legally have more than one wife. Now I think it is extremely clear, that the Chinese besides
the relations between a man and the person whom for the moment at any rate I will call the principal
wife, by law and customs recognize relations between a man and persons whom for the moment at any
rate I will call secondary or inferior wives, persons who certainly are not I think, either by law or custom,
looked upon at all in the light in which a woman, cohabiting with a man to whom she is not married, is
looked upon in England.
The first authority I propose to quote is the translation of the Penal Laws of China by Sir George
Staunton, F.R.S. (edition of 1810). John Francis Daires, F.R.S. member of the Royal Asiatic Society,
and of the Oriental translation committee speaks of Sir George Staunton at p. 22 of the preface to his
translation of the Chinese romance "The Fortunate Union" as "a real master of Chinese literature." At p.
49 of Stanton's translation the law is given showing that failing sons or legal representatives of sons by
the "principle wife" (as Staunton calls her) the several sons or their representatives, according to
seniority of the other "wives" (as he calls them) are entitled to succeed to hereditary rank and titles.
Then at p. 84 the law is given showing that if the "first wife" (as Staunton calls her) has completed her
fiftieth year and has no children living, it is allowed to appoint her eldest son by the other "wives" (as
Staunton calls them) to the inheritance.
Then at p. 110 the law is given, providing a penalty of eigthy blows for any person who lends any one of
his wives (in the plural) to be hired as a temporary wife, and the penalty is given to be inflicted on a
person who falsely representing any of his wives (in the plural) as his sister gives her away in marriage.
On the page just referred to is given s. 103 of the Code, having "Regard to rank and priority among
wives" (as Staunton calls them), and he points out in the footnote to the section, that he prefers to
speak of "inferior wives" rather than of concubines, as opposed to the principal wife, because he says
in the case of the inferior wives there are always certain forms of espousal and their children have a
contingent right to the inheritance. Section 103 itself speaks of the offence of when having a first, wife
living entering into marriage with another female as a first, wife, not of the offence of merely marrying a
second women.then s. 105 on p. 112 deals with the question of marriage during the period of legal
mourning and provides in one case in paragraph II for a lesser penalty when the marriage is one with
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an inferior wife, in another case paragraph VI for excising the marriage when it is one with a inferior
wife.
Then in s. 116, p. 120, "the law of divorce, adultery and certain other offences" is deal with, and it is
provided as follows:-"In all the foregoing cases the first wife only is "intended to be adverted to, but the
law in every instance "shall be applied in cases of the inferior wives, upon a reduction "being made in
the punishment to the extent of two degrees "for such offence." This section, I think, is a very important
one, for as I read it, it prohibits under penalty the divorce of an inferior wife except for the same reasons
as a principal wife may be divorced for; and it provides a penalty for the husband who retains not only a
principal but also an inferior wife, if she has done any act which by law requires her to be divorced.
Then s. 285 excuses a husband who finding a principal or inferior wife in the act of adultery at once kills
either the man or the woman or both.
In "The Middle Kingdom" by Willimans at pp. 60 and 61 Vol. II. of the edition of 1861 it is shown that the
position of "inferior wives concubines" (as Williams calls them) is fully recognized.
In "Things Chinese" by Dyer Ball, M.R.A.S., Chinese Interpreter of the Supreme Court Hongkong, 3rd
edition at p. 72, is described the ceremony, such as it is, of taking a secondary wife or concubine. At pp.
175 and 176 however, whilst the author admits the secondary wives or concubines are recognized as
concubines, he seems to imply they can be divorced at the husband's pleasure. This however, I take it ,
is not according to the law as laid down in Stanton. At pp. 364 and 365, Dyer Ball says the children of
the secondary wives or concubines are on an equality with those of the first wife.
I propose now to refer to "Notes on the Family Law and Usages of the Chinese," edited by the late Mr.
Hare, Protector of Chinese in the Colony and F.M.S. Those book was published at the Selangor
Government Printing Office by the F.M.S. Government's authority, and it is hardly necessary for me to
mention that Mr. Hare was considered a very high authority indeed in all "things Chinese," and his
introduction shows what very valuable help he obtained in compiling his notes, including that of a
former Chinese Minister to London, and of a former Chinese Consul-General in Singapore (perhaps the
same gentleman who gave evidence in the Malacca case hereinafter referred to) (I). This help I think is
very important, in view of the evidence of the Chinese Consul-General in Singapore which is of course
greatly relied on in this case, to which I shall refer later. Whilst Mr. Hare sometimes calls women, other
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than the first wife, "secondary wives or concubines,"he points out at page 5 that the man is bound to
maintain the secondary wife or concubine in a position befitting her station. At p. 6 he gives the
ceremonials usually observed in taking a "concubine" (as he calls her) and points out, at p. 7, that if
these ceremonies are not observed, she is not generally recognized as one of the family. On the same
page he points out that the "secondary wives or concubines" (as he calls them) have a legal status,
though it is different from that of the principal wife; and he shows that apparently an official may take a
secondary wife but she must not be an actress or a woman of light conversation, p. 8. At p. 9 Mr. Hare
says in taking a concubine a man can please his own taste if he first gets permission from his parents
and his first wife. At p. 10 he says there is no dishonor in being the son of a supplementary wife. At p.
11 he says the child of a recognized concubine, publicly received into the family, is legitimate. At p. 12
he says it is considered the moral duty of a man who has unlawfully begotten a child by a woman to
marry her as a principal wife if he has none or to marry her as a concubine (as he calls it) if he has
already a principal wife.At p. 13 he says that after the wife has passed her fiftieth year if she has no
son, the eldest son of any of the concubines is to be regarded as the father's eldest son. At p. 14 he
shows how the sons of a concubine may, under certain circumstances, be regarded as the grandsons
of their father's uncle. At p. 16 he says all sons of concubines are entitled to a share in the inheritance.
At p. 17 he says an inferior wife (like a first wife, at see p. 16) is not entitled to share in the inheritance,
but the sons of the deceased are bound to support her in a manner befitting her station in life; he also
says the inferior widow has a locus standi to be heard in Court, if she complains of the way the
deceased's property is being manajed so that steps may be taken to secure funds for her maintenance.
See also further on his subject the first paragraph of Chapter I, p. 21.
I would next refer to The Mind of Mencius by Faber translated by Hutchinson from the German edition
of 1882. At p. 153 reference is made to Polygamy for the sake of male posterity, and the mischief of a
harem in the household as a matter of duty. At p. 155 in what I understand is an extract from the
doctrine of Mencius is mentioned how Shun was married to both daughters of the Emperor, and this is
referred to again at p. 171, where the author says many Chinese now try to explain away the fact that
both sisters were given to be wives of one man, and he says that the teaching of Mencius is essentially
conditioned by the idea of polygamy, and at p. 170 he says it is stated concerning the most important
woman of China that the chief of her virtues was her treating the inferior wives without either envy or
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jealously. In regard to shun, his marriage to both daughters of the Emperor is also referred to at p. 220
of Vol. II of the translation of the Chinese Classic by Legge, in a passage which appears to be, quoted
from Mencius. I think it is the same passage as is referred to at p. 155 f Faber. The same matter is
again referred to in Vol. III part I, p. 27 of Legge, "The Canon of Yaon," and in a footnote Legge says
from the words used no inferiority can be inferred in either of the wives to the other, though the (Legge)
appears to refer to this as the way of former times.
In Piggott on Extraterritoriality (edition of 1907), published since the author became Chief Justice of
Hongkong, I find, at p. 248, that he assumes Chinese marriage to be polygamous. It is of course the
case that the Chinese Consul-General has, in this case, given evidence to the effect that a Chinaman
can lawfully only have one wife, that the Acting Chinese Consul General seems to have made an
affidavit to the same effect, and that the Chinese Consul-General seems to have given evidence to the
same effect in the case of The King v. Sim Boon Lip 7 S.S.L.R. 4 at Malacca. But with great respect I
am rather inclined to think that on each occasion the Chinese Consul-General who was examined was
asked to prove too much; if, that is to say, we are expected to take his evidence as showing that we
must hold a Chinaman can have only one wife whom the law here will recognize. Of course the
question of foreign law is a question of evidence, and if a Frenchman or an Italian, acquainted with the
laws of his own country, and qualified to give evidence on the subject, stated in evidence that such and
such things did not constitute a valid marriage in his country the evidence would no doubt, I think, be
admissible, and in default of evidence to the contrary should be accepted as correct. But then by the
words "marriage," "husband," "wife," Frenchmen and Italians mean the same thing as we do-that is to
say by "marriage" they mean (as it is said in Hyde v. Hyde and Woodmansee L.R.I.P. & D. 130, at 133,
is meant by "marriage" throughout Christendom) "the voluntary union for life of one man and one
woman to "the exclusion of all others," a definition of Christian marriage which has been accepted in
several other cases in England. On the other hand, I think the authorities I have quoted show clearly
that marriage in China, whatever else it means, does not at any rate mean "the voluntary union for life
of one man and one woman to the exclusion of all others." To talk of the union of a Chinaman with his
first or principal wife (as I will call her) as a marriage, and to talk of the ordinary marriage in
Christendom as a marriage, appears to me to be really giving the same name to two different things,
see SIR BENSON MAXWELL in Hawah v. Daud Leic. 253; Woods Or. C. 28. I doubt whether the
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evidence of the Chinese Consul-General can help us much further than this, i.e., first as to what
ceremonies are necessary to constitute a Chinese first marriage, and what are the rights duties and
position of a first wife, and secondly as to what ceremonies, if any, are necessary to constitute the
relationship, referred to above, with what has been called a secondary or inferior wife or concubine,
and what are the rights, duties and position of such secondary or inferior wife or concubine. After such
evidence as is just referred to I am inclined to think it would be for this Court to decide whether it can
recognize polygamy, and if it can to decide further whether (in view of the ceremonies required, if any,
and by virtue of their rights, duties and position) the women who have been called secondary wives,
inferior wives, and concubines, should be really regarded by this Court as wives or not, Something was
said I believe about a secondary or inferior wife being a thing we could not conceive, and that the Court
could not recognize, but I may point out that by the old law of England a consensual marriage was
good only for certain purposes and did not put either of the parties in the position they would hold under
a more formal celebration of marriage. On this point I find in Eversley on Domestic Relations (edition of
1885) at p. 20 the following: "Herein lies the peculiarity of the old English law when viewed in
contradistinction "to the ancient continental law. By the general law of Europe, "prior to the Council of
Trent, a consensual marriage was in "all respects absolutely perfect. By the law of England a
"consensual marriage was good only for certain purposes. It "did not give the man the right of a
husband in respect of the "wife's property, nor impose upon her the disabilities of "coverture nor render
her dowable, nor confer on the issue "legitimacy, nor did it make the marriages of either of the "parties
(living the other) with a third person void though "it did make it voidable; nevertheless, consensual
marriages "in England were indissoluble. The parties could not release "each other, and either could
compel solemnization in facie "ecclesiae. The contract too was so much a marriage, so "completely
verum matrimonium that cohabitation before soleminization was regarded not as fornication but as an
ecclesiastical "contempt."
I have quoted the above passage only to show that even in England formerly it did not follow that all
marriages had the same legal effect. If a question arises as to how far some of the authorities I have
referred to should be relied on as evidence of Chinese law or custom, I would refer to s. 57(13) of the
Evidence Ordinance 1893, see Ameer Ali on The Law of Evidence in British India (3rd edition) 540,
542, and 543, as to the admission in an Indian case, Cherukunneth Nilakandhen Nambudirapad v.
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Vengunat Padmanabha Revi Varma [1894] I.L.R. 18 Mad. 1, of Wigram on Malabar Law and Custom,
and of Borrodaile's Caste Rules, and Dubois' Hindu Manners Customs and Ceremonies, see
Ramasami Ayyar v. Vengidusami Ayyar [1898] I.L.R. 22 Mad. 113. 115; see also s. 60 of the Ordinance,
the proviso, and Ameer Ali, pp. 571 and 572.
On the whole, in view of the statements referred to above, that in the case of secondary wives, as I will
call them, some sort of ceremony is usually required, and that they were regarded as belonging to the
family of the man they lived with, in view of the law that these secondary wives cannot be divorced
except for the same reasons as a first wife, in view of their right to maintenance on the death of the
man they lived with out of his estate, just like a first wife, in view of their right to apply to the Court to
secure such maintenance, and in view of the other points affecting their rights and position already
referred to above, I think that in regard to these secondary or inferior wives (or concubines as they
have been called), though socially their position is no doubt very inferior to that of a first wife, yet legally
their position more nearly resembles that f a wife where polygamy is allowed than it resembles anything
else; and I think myself, though I do not think the matter is free from doubt, that Chinese marriages
must be regarded as polygamous as SIR BENSON MAXWELL held and as SIR THEODOR FORD and
other Judges have taken to be the case.
But even if I was myself disposed to think that Chinese marriages were not polygamous I doubt
whether I should be justified in so deciding in view of previous decisions of this Court. First of all we
have the case of In the goods of Lao Leong Ann Leic. 418, 1 S.S.L.R. 1, decided by SIR BENSON
MAXWELL over forty years ago, in which he decided that Chinese marriages were polygamous, and in
which he refers to the fact, that he had previously had to decide that a Chinese secondary wife was to
all purposes a lawful spouse. Then I would refer to Quaik Kee Hock v. Wee Geok Neo 4 Ky. 128. and
especially to the end of the Judgment of FORD C.J. at p. 132, and also at p. 131, and to the Judgment
of PELLIREAU J. in the Court of Appeal at p. 135, and here I may say I believe the word "widow" is a
word in itself capable only of quite a limited construction and cannot include persons who are not lawful
widows. See too In the goods of Ing Ah Mit 4 Ky. 380, Lim Chooi Hoon v. Chok Yoon Guan at pp. 75
and 77(4). I may add that I know I have myself at Penang, acting as I thought in accordance with
previous decisions and practice of the Court, granted joint administration to two widows of a deceased
Chinaman, and though I cannot give the reference to any case, I believe I have done so more than
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once. It was stated too during the hearing of this case that quite recently in this Court in Singapore
administration has been granted to a widow who had been a secondary wife, the widow who had been
the principal wife being in China. I believe myself there are other cases besides these to which
reference has been made, where plurality of wives among Chinese has been recognized in the Courts
here, but of course cases of this sort would not be reported indefinitely, and it must be remembered that
a very great number of these who can afford to support more than one wife here dispose of thier
property by will, and that the question we have been considering may thus not arise.
Mr. VELGE, the late Registrar of this Court, whose certificate it is now sought to vary, has relied in this
case on the Judgment of SIR BENSON MAXWELL in Lao Leong Ann's case already cited. Mr. VELGE
is, I think, well known to be a great authority on questions as to the previous practice of this Court, and I
suppose he was not aware of any decisions contrary to the decision of SIR BENSON MAXWELL. I
might also, I think, mention that Mr. VAN SOMEREN, Counsel for the second defendant, one of the
Advocates who has been longest in practice here of all the Advocates in the Colony,and who was
arguing that a Chinaman can have only one wife, that the Court can recognize, admitted that the
practice here has been to follow the Judgment of SIR BENSON MAXWELL above referred to, though I
believe one of the other Counsel demurred to this admission. On the other hand we must, I think, ask if
there have been any decisions contrary to the decision of SIR BENSON MAXWELL and the other
cases referred to, why such cases have not been reported.
I might here point out that in French Cochin China under a special law, polygamy in the case of
Chinese, amongst other Asiatics, appears to be recognized, and marriages of the first and second rank
it appears are registered. I would refer to the Precis de la legislation civil Annamite, published in 1884
at the Government Printing Office in Saigon, Cf. Art. 2 p. 35, Art. 13 p. 12, and what is said on pp. 18
and 19 under the headings of "Conditions of Validity and of Nullity of Marriage," and of "Rights and
Duties it creates"; see also Droit Annamite Doctrine et Jurisprudence et Matiere civil indigene, by the
Vice-President of the Court of Appeal in Indo-China published at Saigon in 1900. Compare what is said
at p. 120 about it being lawful for an Annamite to have several wives at the same time, but only one of
the first rank, and see what is said in the introduction as to the attention that has been paid by the Court
to native custom.
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The French law I think must have been enacted with a view to recognizing what was believed to be
according to the native custom. The only case I find which it appears to me may be inconsistent with
the cases in our Court, to which I have referred, is the Malacca case of The King v. Sim Boon Lip 7
S.S.L.R. 4. I shall show presently that I do not think it is at all clear the Malacca case is inconsistent
with the other cases I have cited, but however that may be, I do not think it is any rate clear that it was
really necessary in the Malacca case to decide the question of whether a Chinaman could or could not
lawfully have more than one wife. The charge in the case was under s. 494 of the Penal Code, which
makes it a punishable offence for any person having a husband or wife living, to marry in any case in
which such marriage is void, by reason of its taking place during the life of such husband or wife. If
what the accused in the Malacca case did was, when he had a first or principal wife living, to go trough
the ceremony requisite for marrying a first wife, with another woman, then by Chinese law the accused
committed an offence and the second marriage was void (see the Chinese Penal Code s. 103 Staunton
p. III to which I have already referred) and therefore the accused, I think, committed an offence which
exactly comes within the terms of s. 494 of our Penal Code, and the accused could I think rightly be
punished, quite independently of the question whether a Chinaman can or cannot lawfully have more
than one wife.
I have already said that in view of the authorities I have quoted I think it is clear that the person whom
the Chinese Consul-General seems apparently to consider as concubines, have a legal status and are
recognized by law, and that I rather think for the reasons I have given in the Malacca case the Chinese
Consul-General's evidence cannot be taken as showing that this Court cannot hold that a Chinaman
may have more than one lawful wife.
Finally, it does not seem to me that it is clear that in the Malacca case, to which I have referred, the jury
found or the case did really decide anything more than that the second particular marriage ceremony
which the accused went through, was void because he had gone through a ceremony of a similar
nature before when marrying a wife or principal wife (whichever she is to be called) who was then living
at the time of the second ceremony. If what I have just referred to is all that was decided in the Malacca
case, and I think the charge in the case should be referred to, I should not doubt for a moment that the
decision was correct, but it seems to me not really to bear on the question of whether a Chinaman can
or can not lawfully have more than one wife.
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Though however the report of the evidence given in the case just referred to by the Chinese Consul-
General leads me to think, bearing in mind s. 103 of the Chinese Penal Code referred to, that he at any
rate thought that the ceremonies of marriage gone through on the second occasion were such as are
gone through at the marrying of a first or principal wife, the whole evidence in the case is not I think
sufficiently set out for us to be able to form a definite opinion on the matter.
Of course custom or foreign law must be proved by evidence at any rate in the first instance, but
though I think the evidence in the present case, taking into account the authorities to which I have
referred, goes as I have said to show that Chinese marriages are polygamous, I do not feel at all sure
whether if I held a contrary view I should now be at liberty to decide in accordance therewith. For more
than forty years it seems to me the Courts here have been treating Chinese marriages as polygamous,
and though I do not know whether the matter has ever been thoroughly argued out before, it is to my
mind doubtful whether the question is any longer an open one, at any rate in a Court of first instance. I
would here refer to Stephen's Commentaries (11th edition) Vol. 1, p. 52 et. seq: showing how the
Common Law of England depends on general customs, and to a passage at p. 153 where it is said
judicial decisions are the principal and most authoritative evidence that can be given of such general
customs as shall form part of the common law. Against on p. 63 it is pointed out that certain well-known
customs do not require to be proved the law taking notice of them.
It seems to me the next question is, can this Court recognize polygamy amongst Chinese if it exists? I
think there is no doubt the English Courts have refused to recognize polygamous marriages wherever
contracted, as far as enforcing the matrimonial law is concerned, e.g., in questions of divorce or suits
for restitution of conjugal rights. See Hyde v. Hyde L.R. 1 P. & D. 130, Warrender v, Warrender 2 Cl. &
F. 488, per LORD BROUGHMAN at p. 532, Story on Conflicit of Laws (edition of 1883) pars. 113A and
114, and see Brook v. Brook at p. 227(3) where LORD CRANWORTH quotes apparently with approval
what is said by Story just referred to above about polygamy, Bethell v. Hildyard 38 Ch. d. 220, Brinkley
v. Attorney-General L.R. 15 P. & D. 76 at p. 50 especially. See also Ardaseer v. Perozeboye 10 Moo.
P.C. 375, particularly at p. 417. Of course, it can certainly be aruged I think that Warrender v.
Warrender, Brook v. Brook, Bethell v. Hildyard Brinkley v. Attorney-General, and the passages I have
quoted from Story show that English Courts will not recognize polygamous marriages for any purposes,
but it seems to me this is not perhaps clear. In Hyde v. Hyde L.R. 1 P. & D. 130 at p. 138, the Judge
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expressly said that his decision was confined to the prayer of the petition for a dissolution of marriage,
that he did not profess to decide upon the rights of succession or of legitimacy in the case of the issue
of the marriage, and that all that he intended to decide was that as between each other the parties were
not entitled to the relief of the matrimonial law of England. The case of Ardaseer v. Perozboye 10 Moo.
P.C. 375 only decided that a suit for restitution of the conjugal rights could not be maintained. As to
Warrender v. Warrender 2 Cl. & F. 488 the actual question to be decided was dissolution of marriage. In
Piggott on Extra-territariolity, cited above, at p. 243, it is questioned whether LORD BROUGHAM in
Warrender v. Warrender 2 Cl. & F. 488 in the passage I have previously referred to meant to go any
further than LORD PENZANCE did in Hyde v. Hyde L.R. 1 P. & D. 130, and I think perhaps this
suggestion receives some support from the words of LORD BROUGHAM in Warrender v. Warrender 2
Cl. & F. 488 at pp. 531, 532:-
"If indeed there go two things under one and the same "name in different countries, if that which is
called marriage "is of a different nature in each, there may be some room "for holding we are to
consider the thing to which the parties "have bound themselves, according to its legal acceptance in
"the country where the obligation was contracted." In Pigott at pp. 241 and 242 it is aruged that Hyde v.
Hyde L.R. 1 P. & D. 130 in view of the reservation as to succession, etc., was no authority for the
decision in 'Bethell's case 38 Ch. D. 220, and it is said the second part of the Judgment in Bethell's
case seems to show that under certain circumstances the marriage might have been recognized as if
Bethell had mentioned his marriage with Teepoo to his relations at home, or if he had introduced her to
any European as his wife, or spoken of her as such. Of course too in considering Bethell's case we
cannot I think lose sight of the fact,that he was a British subject with an English domicile.
At p. 244 Piggott says that he thinks there can be no doubt that amongst others, two Turks married
according to Mahomedan law would be considered married in England and their children legitimate
even if their own law sanctioned polygamy, so long as they did not seek to apply to their relationship
the matrimonial law of England, and at p. 248 he says: "If it is not true to assume that a marriage
between "two Orientals, even in a polygamous country, will be recognized as a valid marriage in this
country outside the Divorce "Court, then we must admit the truth of the following arguments. "A
Chinaman, for example, married in China and with children "born in China comes to reside in London.
He is possessed "of Consols and dies intestate. The property goes to the Crown "because there is no
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wife or child whom the English Court "will recognize as such." This passage assumes Chinese are
polygamous, but whether the authority is right about that or not, makes no difference in the principle.
But even if we take it that the law in England will not recognize polygamous marriages for purposes of
succession or any other purpose, it does not of course follow that the case is the same here. I propose
now to consider whether the Letters Patent of 1855 are still in force, and if so, what bearing they have
on the question now under consideration.
The case of Yap Cheah Neoh v. Ong Cheng Neoh 1 Ky. 326; L.R. 6 P.C. 381, shows that the Letters
Patent of 1855 sometimes spoken of as the Charter of 1855, were in force in 1875, and I think it has
been generally considered, and I think rightly, that the Letters Patent have been still maintained in
force, see s. 83 of the Courts Ordinance of 1878, up till the coming into operation of the new Courts
Ordinance, and of the Repeals Ordinance 1907, and of other Ordinances on 1st April last. But it is said
as I understand that by the Courts Ordinance 1907 a Supreme Court is constituted which is a new
Court, that neither under the Courts Ordinance of 1878 nor under any other law are the provisions of
the Letters Patent of 1855 applicable to this new Court, and that therefore the provision of s. 9(8) of the
new Courts Ordinance conferring on the so-called new Supreme Court inter alia any jurisdiction now
conferred on it by the Letters Patent, can have no effect in respect of the Letters Patent of 1855.
But I think the Courts Ordinance of 1907 in spite of the wording of s. 83 does not establish a new
Supreme Court, and I would refer to the preamble which only shows the intention was to amend the law
relating to the constitution of the Court, and amending the constitution of the Court does not, I think,
necessarily mean establishing a new Court. I would also refer to s. 9(8) itself, which I think would lead
one to suppose the old Court was to be continued, and to s. 4 which says the Judges of the Supreme
Court in office shall continue to hold their respective office. The offices referred to are offices of the
Court existing before the coming into operation of the Courts Ordinance of 1907, and if the Judges
continue to hold the same offices as before, they can only do so I think in the same Court. If there is a
new Court, I think the Judges of the old Court would have to be reappointed as Judges of the new
Court, either by expressed words in the law of otherwise. I would here suggest a comparison between
the language of the new Courts Ordinance, and the language of ss. 1 and 2 of Ordinance V. of 1868 by
which a new Court certainly was I think established. But it seems to me if, as I hold, the Courts
Ordinance of 1907 does not establish a new Court, that s. 9(8) maintains for the Court, or regrants to it,
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the jurisdiction under the Letters Patent of 1855, and what the nature of that jurisdiction is, so far as it
may specially affect this case, we shall I think presently see. But it was argued as I understand that the
Repeals Ordinance XXXIII. of 1907 came into force at the same time as the Courts Ordinance 1907,
and as the Repeals Ordinance 1907 repeals the whole of the Courts Ordinance 1878 which kept the
Letters Patent alive,the Letters Patent of 1855 were not in force for s. 9(8) of the Courts Ordinance to
operate upon, so as to maintain the said Letters Patent in force at the time the new Courts Ordinance
came into operation. It is also said that if the Repeals Ordinance came into force last of the two
Ordinance in so far as it is inconsistent with the new Courts Ordinance it repeals the latter. I cannot
accept the above views. If the two Ordinances came into force at the same time immediately before the
coming into force you have the jurisdiction under the Letters Patent preserved or regranted perhaps
(but it is not necessary to discuss that point) by the Courts Ordinance 1878. Then I think you have the
two Ordinances operating at the same moment, one repealing the Ordinance of 1878 and the other
preserving the jurisdiction under the Letters Patent before preserved or re-granted by the Ordinance of
1878. To my mind the effect is much the same as the effect would be of one clause repealing the whole
of the Ordinance of 1878 with the exception of those portions of it which preserved or regranted the
jurisdiction under the Letters Patent. To argue that in view of the provisions of the Repeals Ordinance
1907 there was nothing for the Courts Ordinance of 1907 to preserve is to argue, I think, that the
Repeals Ordinance of 1907 came into force before the new Courts Ordinance of 1907, a proposition
which I think is clearly untenable. If, as it was also aruged, the Repeals Ordinance 1907 came into
force after the new Courts Ordinance 1907, then I think that the jurisdiction under the Letters Patent
preserved or regranted by the Ordinance of 1878 is preserved by s. 9 (8) of the Courts Ordinance
1907, and the subsequent repeal of the Ordinance of 1978 will not I think affect the question. It was
indeed said that if the Repeals Ordinance 1907 is inconsistent with the new Courts Ordinance, and if it
can be held that it came into operation later, then in so far as the Repeals Ordinance is inconsistent
with the new Courts Ordinance the Repeals Ordinance must be held to repeal the new Courts
Ordinance. But I see no inconsistency between the two Ordinances. As I have said I think it would be
perfectly possible in one Ordinance to repeal the whole of the Civil Procedure Ordinance 1878 except
the provisions preserving or regranting the jurisdiction under the Letters Patent, and there would I think
be no inconsistency in provisions of this kind. It is provisions of the kind referred to, which in effect
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seem to me to be enacted in the Courts Ordinance 1907 and the Repeals Ordinance 1907, and there is
nothing to lead me to think that there is any inconsistency about the provisions because they happen to
be enacted in two different Ordinances instead of the whole matter being dealt with in one. Part of the
contention I have been dealing with just now seems to me much the same apparently as the one the
Privy Council held could not be maintained in respect of Ordinance V. of 1868, see Yeap Cheah Neoh
v. Ong Cheng Neoh 1 Ky. 326; L.r. 6 P.C. 381 at p. 397. In that case the Privy Council held that in spite
of s. 1 of the Ordinance, s. 4 preserved or re-enacted the provisions of the Letters Patent and made
them applicable to the new Court. I hold then for the reasons I have given that the Letters Patent are
still in force.
The question now comes, if the Letters Patent of 1855 are still in force, do they enable this Court to
recognize polygamous marriages, which I have given it as my opinion I must hold do exist amongst the
Chinese, assuming, that is, that such marriages cannot be recognized if we are to be guided by the
English law. I think the provisions of the Letters Patent do enable this Court or recognize polygamous
marriages amongst Chinese, for the Letters Patent provide, Harwood's Ordinances of the Straits
Settlements, Vol. 1 p. 11, that the Court shall have and exercise jurisdiction as an Ecclesiastical Court
so far as the several religious manners and customs of the inhabitants of the said Settlements and
places will admit. It seems to me under these words of the Letters Patent the Court in the exercise of its
ecclesiastical jurisdiction should recognize polygamous marriages in the case of any class of
inhabitants amongst whom such marriages are shown to be in accordance with their own laws,
manners and customs, and I might here point out that considerable importance appears to be attached
in the Letters Patent to the recognition of the religious manners and customs of the inhabitants of these
Settlements, for they are again directed to be recognized in the framing of process, and the making of
rules and orders for the execution of the same in suits within the jurisdiction of the Court, See Harwood,
p. 24. Regard is directed to be had to the religious manners and usages of the native inhabitants in the
administration of Criminal Justice, p. 25 ibid, and the religious manners and customs of the inhabitants
are again directed to be recognized in the provisions regarding the appointment of Peace Officers,
Harwood, p. 27; in the provisions regarding infliction of punishment Harwood, p. 28, and in the
provisions for establishing Courts in the nature of Courts of Requests, Harwood, p. 31.
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It was said indeed that the provisions in the Letters Patent, to which I have referred, about the Court
exercising the jurisdiction as an Ecclesiastical Court, has no application in this case, because what is in
dispute is a question about rights to property. I cannot accept this view, if for no other reason, because
the question of the rights of the defendants depends on whether they are to be regarded as lawful
wives or not, and as I understand, such a question would formerly in England have to be decided by
the Ecclesiastical Court whether rights to property were involved or not. In Lindo v. Belisario 1 Haggs
Con. 216, the question of validity of marriage between Jews was directed by the Lord Chancellor to be
tried in the Consistory Court and from what is said in the judgment on appeal at pp. 10 and 11 of the
Appendix of the same volume, it is clear that the question arose in connection with the rights to certain
property, and that to use the words of SIR WILLIAM WYNNE in his judgment (2) "it became necessary
before the Court of Chancery could stir "in the business so as to make any order, to know whether
"there had been a marriage, and to know whether the young "woman by whose guardian this suit was
instituted was "wife" or not." At p. 7 too of the Appendix to the same volume, I find a reference to a case
of Vigevena and Silveira v. Alvarez in the judgment of SIR WILLIAM WYNNE. The learned judge says
that in the case referred to a Jewish marriage was in issue in the Ecclesiastical Court, that the question
was who should be entitled to the property of a deceased person, but that eventually the parties is
came to an agreement.
But even if I did not personally think that under the Letters Patent this Court should recognize
polygamous marriages, I doubt if I should feel justified in holding that he Court should not under the
Letters Patent recognize such marriages, in view of previous decisions of this Court, and the cases to
which I propose to refer, see SIR WILLIAM NORRIS In the goods of Chua Siang Long Leic. 460;
Wood's Or. C. 12, which shows as I understand that he recognized Mohammedan polygamous
marriages, relying on the then Charter. The date of this case was 1843 but the words of the Charter
relied on appear to be practically the same as those of the Letters Patent of 1855, see the quotation in
the reports of that case.
Then we have several cases which seem to me to show that polygamous marriages amongst
Mohamedans were recognized before the Mohamedan Marriage Ordinance of 1880, though perhaps it
is not always clear whether such marriages were recognized in virtue of the passages of the Letters
Patent to which I have referred, or similar passages in the prior Charter, or whether such marriages
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were recognized on the principles laid down by SIR BENSON MAXWELL in Regina v. Willans 3 Ky. 16,.
which I understand to be, that he law of England will here ex comitate or ex debito justitiae recognize
polygamous marriages when such are valid according to the religions or usages of the parties, be they
Mohamedans, Chinese or others, see pp. 31 32 and 33 ibid. The cases I referred to above are:-
In the goods of Lao Leong An 1 S.S.L.R. I; Leic 418, already cited, In that case in 1867, SIR BENSON
MAXWELL says that it had already long been held in Singapore that when a Mohamedan died intestate
leaving two or more wives, they were entitled to share equally among themselves the share which the
Statute of Distributions allots to the widow of a deceased person. See also Regina v. Willians 3 Ky. 16,
the date of the judgment being 1858, Khoo Tiang Bee v. Tan Beng Gwat 1 Ky. 413, per FORD AG. C.J.,
at p. 416, date of judgment being 1877, Hawah v. Daud Leic. 253; Wood's Or. C. 28, judgment of 1865,
Chulas and another v. Kolson Linte Seydoo Malim Leic. 462; Wood's Or. C. 31, judgment of 1867. Then
we have the case of Regina v. Willans (supra), a case of 1858, which shows that polygamous
marriages generally had always been recognized here and I think Choa Choon Neo v. Spottiswoode 1
Ky. 216, at p. 221, shows that polygamous marriages generally must be recognized. The passage is as
follows: "In this Colony so much of the "law of England as was in existence when it was imported "here,
and as is of general (and not merely local) policy and "adapted to the conditions and wants of the
inhabitants is the "law of the land, and further that law is subject in its application to the various alien
races established here, to such "modifications as are necessary to prevent it from operating "unjustly
and oppressively on them. Thus in questions of "marriage and divorce, it would be impossible to apply
our law "to Mohamedans, Hindus and Buddhists without the most "absurd and intolerable
consequences and it is therefore held "inapplicable to them." Now the statement of law just quoted,
whether it depends on the Letters Patent or not, was approved of by the Privy Council in Yeap Cheah
Neo v. Ong Cheng Neo 1 Ky. 326; LR 6 P.C. 381.
I would next refer to the very important case already cited of In the goods of Lao Leong An 1 S.S.L.R.
1; Leic, 418. This shows both that Chinese marriages are polygamous and that they are to be
recognized by our Courts. Then we have Quaik Kee Hock v. Wee Geok Neo 4 Ky. 128, which shows
that polygamous marriages amongst Chinese are recognized by the Courts; In the goods of Ing Ah Mit
4 Ky. 380 to the same effect, and Lim Chooi Hoon v. Chok Yoon Guan 1 S.S.L.R. 72 which I think is
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also to the same effect. Whether in the Chinese cases just quoted, the Court recognized polygamous
marriages amongst the Chinese in virtue of the Letters Patent or otherwise, is, I think, not clear.
On the whole, then, I think that on the authorities, either in virtue of the Letters Patent or otherwise, the
Court here must recognize polygamous marriages if such are valid according to the religious and
usages of the married parties. I am therefore of opinion that either in virtue of the Charter or otherwise,
on the authorities, I must hold the Court must recognize polygamous Chinese marriages when had and
celebrated in accordance with Chinese customs and usages.
I think too in dealing, with the question of whether Chinese marriages are or are not polygamous, and
whether if polygamous they should be recognized by this Court, I might refer to what is said in Pollock's
First Book of Jurisprudence (edition of 1896) at p. 299 as to the decisions of an ordinary Superior Court
being binding on all Courts of inferior rank, and that though not absolutely binding on all Courts of co-
ordinate authority nor on that Court itself, they will be followed in the absence of strong reasons to the
contrary, and also to what is said to the effect that the decisions of a Court of Appeal are generally,
according to English practice, binding on the Court itself. I would also refer to the remarks of JESSEL
M.R., In re Hallett's Estate, Knatchbull v. Hallett at p. 712 [1880] 13 Ch. D. 696; the remarks of LORD
HERSCHELL concurred in by LINDLEY and SMITH L.J.J., in Pledge v. Carr [1895] 1 ch. 51; the
remarks of JESSEL, M.R., In re Harper and the Great Eastern Railway Co. at p. 43 [1875] L.R. 20 Eq.
39, where he says he has frequently expressed the opinion that it is not proper for one Court of Co-
Ordinate Jurisdiction to refuse to follow the decision of another merely because the Court thinks it
erroneous; the remarks of SWINFEN EADY J., in Markham v. Paget [1908] 1 Ch. 697, at p. 716, as to
his being bound to follow what the current of authority for more than sixty years had determined to be
the law; and the remarks of COZENS HARDY M.R., in Winans v. the King [1908] 1 K.B. 1022 at pp.
1026 and 1027. On the other hand, I think I ought to refer to the remarks of JESSEL M.R., in Osborne
v. Rowlett [1880] 13 Ch. D. 774, at p. 779 but these remarks seem to me to be very largely qualified by
what the same learned Judge said in the same case in his judgment at p. 784. In the case of Ardaseer
v. Perozeboye 10 Moo. P.C. 375 a suit for restitution of conjugal rights, even the Privy Council, the
Supreme Court of Appeal, would apparently have hesitated to give effect to their own opinion, if there
had been a course of decisions to the contrary in the Indian Courts, see at p. 420.
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I think there can be no doubt that great hardship will probably be inflicted, if we do not recognize
Chinese marriages as polygamous. The result I think will be that in the eye of the law here the women
merely declared concubines will have no legal rights at all to maintenance or any provision, that they
may be turned adrift to starve and that their children may be regarded by the law as bastards. There
are I think probably a good many persons in the Colony at the present time whom a decision that
Chinese marriages cannot be recognized as polygamous, will render liable to be affected in the way I
have indicated. I have already indicated some of the protection afforded by the Chinese law or custom
to inferior wives or concubines, whichever they may be called; I have shown that in the neighbouring
French Colony, the law appears to recognize polygamous marriages amongst the Chinese. If in this
Colony we are going to say that we will not recognize Chinese marriages as polygamous, I think we
shall as the result, contrary to what is done in the neighbouring French Colony, refuse to recognize
what are really Chinese customs and usages of polygamy, recognized in China, and inflict on the
Chinese community hardships from which I think they appear to be free in the French Colony and in
China, hardships which I think in view of the several passages of the Letters Patent to which I have
referred, if on no other grounds, it certainly was never contemplated that they would have to undergo. I
would here like to call attention to what SIR BENSON MAXWELL said in Hawah v. Daud Leic. 253;
Wood's Or. C. 28, as to why Mohamedan marriages which he calls "precarious unions" should be
recognized as marriages, and also to what he says in Chulas and another v. Kolson Leic. 462: Wood's
Or. C. 31 as to how our law must be applied to Mohamedans and races having different religions and
social institutions from our own. For all the reasons I have given, I think as I have said, that I must hold
that Chinese marriages are polygamous and that this Court will recognize polygamous Chinese
marriages.
[The learned Judge then dealt with the facts of each woman's case, in the end upholding the learned
Registrar's certificate on all points, and dealing with question of presumption of marriage raised in Neo
Chan Neo's case he found as follows]:-
As regards Neo Chan Neo therefore, I see no reason to interfere with the Registrar's certificate, which
finds Neo Chan Neo was a secondary or inferior wife of Choo Eng Choon, and I think that in the
absence of evidence to the contrary, under the circumstances of this case, the law would presume that
in the lifetime to Tan Kit Neo, Neo Chan Neo was legally married as a secondary or inferior wife, if
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polygamy is recognized. For the more fact that a marriage is polygamous seems to me to be no reason
why the Court should not presume a legal foundation for the co-habitation of a man and woman to the
same extent as it would be presumed in the case of non-polygamous marriages. On this question of
presumption, I would refer to Yeap Cheah Neo v. Ong Cheng Neo 1 Ky. 326; L.R. 6 P.C. 381 and Sastry
Velaider Aronegary and his wife v. Sembecutty Vaigalie and others [1881] 6 App. Cas. 364.
[The further consideration as regards the interests of the alleged children was adjourned till September
1, 1908. Counsel appeared as before and their arguments appear sufficiently in the Judgment below;
LAW Ag. C.J., reserved judgment which he delivered on October 17 1908, as follows:-]
LAW Ag. C.J.
The first point I propose to deal with in reference to the matters now before me is the question about
succession to real estate in the Colony, which no doubt is governed by the lex situs. Mr. KOEK argues
as I understand that the lex situs in the Colony is English law; but admitting that English law was
formerly the law in force here in regard to succession to real property, the question is, is it the law now?
The first legislative measure we have to notice in dealing with the question now before us is, I think, the
Indian Act XX of 1837, although the Act has since been repealed.
If we read Act XX of 1837, I do not think the natural construction of the wording of the Act is to limit its
operation, as I understand Mr. KOEK argues should be done, to a transmission of the legal estate. Why
should the word "transmission" be cut down in meaning to a transmission of the legal estate and not
include the transmission of the rights of beneficial ownership? Further the Act says that for the
purposes of transmission, immoveable property is to be taken to be and to have been of the nature of
chattels real, and not of freehold. I think the construction Mr. KOEK argues for is a forced construction
and not the natural one. It seems to me too that the weight of authority is against the construction that
Mr. KOEK seeks to place on the Act XX of 1837, and I would refer to the end of the judgment in In re
Lao Leong An 1 S.S.L.R. 1; Leic. 418, and to Chua Keng Sew v. Chua Ann Sew 1 S.L.J. 146, and
Moraiss v. de Souza 1 Ky. 27.
The Act XX of 1837 has been repealed by the Conveyancing and Real property Ordinance 1886, but
though this is so, if the right of the heir of succeed to real property was abolished by Act XX of 1837, I
do not think it would be lightly assumed that the right of referred to has been revived. What then is the
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bearing of s. 33 of that Ordinance, the really important section on this question? Now, if s. 33 of the
Ordinance be read alone, I think the natural construction to be put on it is, that it regulates not merely
the transmission of the legal estate as Mr. KOEK argues but also the transmission and devolution of the
beneficial interest. Again the heading just above the section is "Devolution of land on death," and the
marginal note is "land to devolve on death as chattels real." I again can see no reason in the absence
of anything further in the section, why the devolution and the transmission referred to in the section, are
to be limited to the transmission and devolution of the legal estate, as I understand is argued, and are
not to carry the beneficial interest. I would again refer to the case Chua Keng Sew v. Chua Ann Sew
cited above; and also to the case of In re Lao Leong An in the passage cited above, as to the meaning
of the word "devolve." As to the sense in which the word "devolve" is used to see also the judgment in
Duncan v. Lawson [1889] 41 Ch. D. 394 and Stroud's Judicial Dictionary.
It was argued that s. 33 of our Ordinance must be compared with s. 30 of the Conveyancing and Law of
Property Act 1881 in England, but I would point out that whereas the Act of 1881 in s. 30 deals with the
devolution of trust and mortgage estates on death, our s. 33 deals with the devolution of land on death,
and although formerly in England in the case of a mortgage in fee, the legal estate in the land
descended to the heir of the mortgagee, yet with regard to the money due on the mortgage, it had to be
paid to the executor or administrator of the mortgagee, and so if the mortgage were in fee, the heir or
devisee of the mortgagee was a trustee of the land for the executor or administrator, see Williams on
Executors, 10th edition Vol. 1, p. 518. It seems to me s. 33 of our Ordinance, deals with different
matters from s. 30 of the English Act.
Then it was argued as I understand, that the provisions of our s. 33 above referred to, should be
constructed in a similar manner to the provisions of s. 1 of the Land Transfer Act of 1897, and John v.
John [1898] 2 Ch. 576, was I understood referred to, as showing the effect of the Land Transfer Act of
1897. But I would point out that s. 1 of the Act deals with the establishment of a real representative, that
the marginal note speaks of the devolution of legal interest in real estate on death, that s. 1 of the Act of
1897 says the devolution and vesting of the land are to be as if it were a chattel real, whereas s. 33 of
our Ordinance says, the land is as regards transmission and devolution to be deemed to be of the
nature of chattels real. Again the Act of 1897 has provisions saving the rights of those by law
beneficially entitled, whereas our Ordinance has no such provision, and the provisions must be read
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with the provisions of s. 1 of the Act referred to, in order to properly get at the meaning of the matter.
Again, see Indian Act XXIII, of 1855, as published in our local collection of Indian Acts, and compare it
with Act XXIII of 1855 as published for India, and note how the references to the heir in the Act as
published in India are here left out.
I think myself that under s. 33 of our Ordinance of 1886 referred to above, when a person dies
intestate, land descends to his next-of-kin as chattels real, and not to the person whom we may call his
heir, and I would refer to the cases in the Colony which I have already cited. Indeed I think it is a matter
of common knowledge, that it has for a long time been accepted here by the Courts and generally, that
when a person dies intestate his land descends to his next-of-kin, and I would call particular attention to
the passage I have referred to in the judgment in In the goods of Lao Leang An as showing that this
has long been the view accepted. I might also refer, merely as showing what has been the accepted
view, to Mr. Napier's handbook on the Law of the Colony pp. 31 and 32.
But even if I thought, as I do not, that under the provisions of s. 33 of the Ordinance to which I have
referred, the person entitled to the beneficial interest in land in the case of intestacy was the heir, still if I
felt a doubt on the subject, as I could not I think well help doing, I do not think I should feel justified in
now deciding that the beneficial interest descended to the heir, for as JESSEL M. R., said in ex parte
Willey [1883] 23 Ch. D. 118. at p. 127, "When a series of decisions of inferior Courts have put a
"construction on an Act of Parliament, and have thus made a "law which men follow in their daily
dealings, it has been held "even by the House of Lords, that it is better to adhere to the "course of the
decisions that to reverse them, because of the "mischief which would result from such a proceeding."
See further on this point Hardcastle on the Construction of Statutes, 2nd Edition p. 165. and the cases
cited there.
To turn now to another point, I think I must hold from what I have said above, that the property to be
distributed will, including all leaseholds, if any, have to be distributed as if it was personal property. Now
personal property generally should be distributed on death intestate, according to the law of the
domicile of the deceased, but the Registrar's certificate shows that the deceased was born here and
that he died here, and it appears that while away in Saigon he had a position in a bank there. Under
these circumstances I think Choo Eng Choon's domicile must be taken to be that of his origin, i.e., this
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Colony, unless there is anything to show, which I think there is not, that he abandoned his domicile of
origin, see the Marchioness of Huntly v. Gaskell.
The question then of domicile does not seem to me to affect the case. Now the law of the Colony for
the distribution of personal estate is the Statute of Distributions, and unless some good reason for an
exception appears, I think Cheo Eng Choon's property will all have to be distributed according to the
Statute of Distributions, see the end of the judgment in Chulas and Kachee v. Kolson (supra), and In
the goods of Lao Leong An (supra), at the end of the judgment, where it is laid down that the personal
estate of a deceased Chinaman domiciled here, must be distributed according to the law of the Colony
and not according to the law of China, see also Lee Joo Neo v. Lee Eng Swee 4 Ky. 325, and Khoo
Tiang Bee v. Tan Beng Gwat.
As regards any alleged Chinese customs of males inheriting to the exclusion of females, or of
illegitimate children being given a share in the estate of their deceased father, I do not think as was said
in the judgment in Lee Joo Neo v. Lee Eng Swee (supra), that we can incorporate any such alleged law
of custom of China with the Statute of Distributions. I would also here again refer to Khoo Tiang Bee v.
Tan Beng Gwat (supra).
I do not think the Courts here have recognized either of the above alleged Chinese customs, and I
believe the Court here has on the other hand considered the question of whether the word "children" in
the will of a Chinaman should include illegitimate children.
As to a claim put forward on behalf of the child of Cheang Cheng Kim born before marriage, I may
remark that her marriage with Choo Eng Choon would not I think make her children born before
marriage legitimate here, whether the children were born in Saigon or not, the deceased being
domiciled in this Colony, and that is the case even assuming that in Saigon, the subsequent marriage
of the parents makes children born before marriage legitimate, which is not however shown. I would
refer to In re Grove [1888] 40 Ch. D. 216, Diccy on the Conflicit of Laws (edition of 1896) 497, and
Eersley on Domestic Relations (edition of 1885) 528. Nor again for reasons I have given above, could
the child of Cheang Cheng Kim to whom I have just been referring have any right to inherit on the
ground of any Chinese law or custom.
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In regard to claims of maintenance, I can find no authority to support the claim, and I am not aware that
it has ever been the practice to grant maintenance to illegitimate children after the death of their father,
or to a woman after the death of the man she has been living with, without being married to him. I do
not see how any sum can be deducted out of the estate for the maintenance referred to, and I am not
aware of any obligation on the personal representative of a deceased person, to provide maintenance
for such deceased person's illegitimate children.
The question of maintenance of children is discussed in Eversley on Domestic Relations (edition of
1885) pp. 558 et seq. 624 and 625, and in Eversley I think it is shown that the legal obligation of
parents to maintain their children only arises from express enactments.
In regard to any claim to maintenance founded on any alleged Chinese law or custom, I can only repeat
what I have said above to the effect that I do not think we can recognize any such alleged law or
custom. As regards the shares to be taken in the deceased's estate, I think the four persons whom I
have considered lawful widows should take amongst them equally a one-third widow's share, see In the
goods of Lao Leong An (supra). I would also refer to the end of the Judgment in In re Chu Siang Ling's
estate Leic. 460 where it is said that a similar method of distribution has been adopted in the case of
widows of Mohamedan intestates, the time referred to being prior to the passing of "The Mohamedan
Marriage Ordinance of 1880," and I would also refer to Clause 27(5) of the Mohamedan Marriage
Ordinance 1880, which adopts this mode of distribution amongst the widows of a Mohamedan dying
intestate.
As regards the children whom I hold to the legitimate and entitled to share, I think two-thirds of the
intestate's estate should be divided amongst them equally, share and share alike.
The result then of the findings of LAW Ag. C.J., was that Tan Seok Yang, Cheang Cheng Kim, Neo
Chan Neo and Mah Imm Neo were the lawful widows of the deceased, and that the plaintiff and such of
the other children of the deceased by these four women as were born in wedlock were his legitimate
issue, and that they were to divide the estate amongst them in the shares ordered by him at the end of
the above Judgment.
Tan Seok Yang appealed against the Judgment of LAW Ag. C.J., dated August 6 1908. The plaintiff
appealed against the Judgment dated October 17 1908, and to that appeal Cheang Cheng Kim filed a
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cross-appeal seeking to obtain the inclusion of her child who was born prior to wedlock but legitimated,
as she contended, thereby.
These Appeals came on for hearing before a Court of Appeal consisting of HYNDMAN-JONES C.J.,
SERCOMBE SMITH and BRADDELL JJ., on December 11, 14, 15, 16, 17, 18, and 21, 1908.
The Appeal of Tan Seok Yang was taken first.
Hon. E.C. Ellis (within him R.G. Van Someren) for the appellant.
In this Appeal there are two questions: (1) Does polygamy exist in China? (2) If so, will the Courts here
recognize it in the case of a British born subject domiciled in Singapore?
[HYNDMAN-JONES C.J.- Is there not this further question "assuming the Courts have been in the
wrong in the past, "can we now upset such a current of authority?"]
Ellis.-I am prepared to argue there is no such current of authority but even if there were, I shall argue
that your Lordship should not hesitate to upset it.
[HYNDMAN-JONES C.J.-Then I will call your attention to the case of ex parte Wille re Wright 23 [1893]
Ch. D. 118.]
Mr. Ellis intimated that he would deal with that question later. He did to propose to argue that the
Charter of 1855 was not in force, but would assume it is for the purposes of his argument. Mr. Van
Someren would agree contra. In this appeal the matter to be dealt with was the law of inheritance.
Regina v. Willans 3 Ky. 16 at p. 25 shows that the law of England as to inheritance and succession is to
be observed here. In Khoo Tiang Bee v. Tan Beng Whatt it was accordingly held that the adopted son
of a Chinese is not allowed to share in his intestate adopted father's estate. This is analogous to the
present case. Lee Joo Neo v. Lee Eng Swee 4 Ky. 325 shows that the Court will not import Chinese law
or custom which prohibits a Chinese woman from sharing on an intestacy so as to oust the Statute of
Distributions. Only express legislation can introduce foreign customs so as to interfere with the Statute
of Distributions. For instance take the case of Mohomedans, the Mahomedan Marriage Ordinance (V of
1880) Part III. If the law expounded prior to this Ordinance had been deemed beyond doubt correct this
Ordinance was not necessary, therefore this Ordinance was passed not to remove doubts about
Mahomedan law but about the way the Courts had interpreted and adopted it.
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[BRADDELL J.]- Was not that Ordinance passed for purposes of codification? There is nothing in its
preamble to show it was passed to remove doubts such as you suggest.]
Ellis.-I think not. Parts III. IV, and V only confirm what the Courts had previously done, and therefore if
the Courts were correct, that was so much waste. Parts I and II, do not make any startling alterations.
Mahomedan marriages are of course polygamous. As to the need of express legislation of. Regina v.
Willans 3 Ky. 16 at bottom of p. 30. Prior to Ordinance V of 1880, Courts had no power to introduce
such Mohamedan customs as it suited them to do in derogation of the Statute of Distributions. There
has been no such legislation in the case of the Chinese. Why? Because either polygamy does not exist
in China or legislature deemed it was a custom to which its sanction should not be given. Mohamedan
polygamy had long been known to exist, and the Court decisions as to Chiense go back as far as its
decisions as to Mohamedans. Yet the Legislature has not intervened as regards Chinese though
Judicial decisions regarding them are in pari materia with those affecting Mohamedans.
[HYNDMAN-JONES C.J. - Would it not have been more necessary for the legislature to legislature to
intervene in the case of Chinese to negative decisions if they were wrong?]
Ellis.- I prefer to look at it from the other point of view. Non-legislation for Chinese was due to the
assumption that polygamy did not exist among them and therefore there was no need to validate an
alleged custom not recognized as existing at all.
He then referred to the affidavits of Suen Sze Ting, Tao Ping Ling, and Wong Kim Fah, and of Lao
Chong Yow in Rex v. Sim Boon Lip These show that concubinage, not polygamy, is recognized by the
law of China. A concubine should not be called a secondary wife. A ceremony for taking a concubine
exists but is not always performed.
[SERCOMBE SMITH J.-If secondary wives go through a ceremony does it indicate polygamy and not
concubinage?]
Ellis.-There are no degrees of concubinage; they have no rights whatever in the household. As to
Staunton's translation of the Chinese Penal Code, it is not exact.
[SERCOMBE SMITH J.-No; see what he says himself at p. xxxi of the preface].
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The headings seem not to be in the original text. The expression "secondary wife" is Staunton's
preference cf. note at p. III. Again I find "wives" used. I understand there is no Chinese plural.
[SERCOMBE SMITH J.-There is a way of denoting the plural, sometimes by a special word and also
inflection.]
The note at p. 111 of Staunton gives the keynote to his translation of the Chinese character as "inferior
or secondary wife" rather than as "concubine."
[BRADDELL J.-Were any Chinese dictionaries referred to in the lower Court?] None - Staunton merely
preferred the term "inferior wife" to "concubine."
[SERCOMBE SMITH J.- But there is a word for concubine. It is composed of the characters "crime"
and "woman."]
He then referred to Wharton's Law Lexicon "Polygamy." Polygamy imports equality of wives. It is
admitted these secondary wives are not equal with the primary ones. Their children are considered to
be the principal wives' children. Wells Williams' Middle Kingdom, 4th Edition, p. 60. He then referred to
Dyer Ball's Things Chinese, 4th Edition, pp. 211, 212, 30, 89 325 and 428, Hare's Notes on Family Law
and Usages pp. 4, 5, 6, 7, 10, 12, 13, 17, and 21, and Faber's Mind of Mencius. As to Faber, in what
sense did he use "polygamy"? Shun's marriage was a marriage to royalty, and may be compared with
morganatic marriages in Europe. Legge's Classics, Vol. II, p. 220 shows that Shun had the dignity of an
emperor, and again Vol. III, p. 26, c. f. note as to trustworthiness of the story and doubt as to existence
of polygamy. Piggott in his book on Extraterritoriality assumes polygamy amongst Chinese but what
does he mean by it. The word is used loosely and with different meanings by the various authors supra.
Polygamy in the sense of equality of wives is not proved to exist by the laws or usages of china.
English law prevails here. Respondents must show "polygamy" in its proper sense exists in China. In
the goods of Lao Leong An 1 S.S.L.R. 1; Leic. 418 is the sheet anchor of the respondents. In that case
there was no evidence of fact, i.e., of proved foreign, law, to justify MAXWELL. R. in following his
opinion. The last paragraph of the judgment is mere guess work, i.e., as to allocation of the "second
wife's" share under the Statute of Distributions. Quaik Kee Hock v. Wee Geok Neo 4 Ky. 128. was on
the construction of a will; what was the intention of the testator? No discussion as to existence or non-
existence of polygamy in China. In the goods of Ing Ah Mit 4 Ky. 380 no argument is reported. It is no
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authority that polygamy exists in China. The question of how the widows were to share was not
decided. The case of Lim Chooi Hoon v. Chok Yoon Guan 1 S.S.L.R. 72 is no authority that Chinese
marriages are polygamous. There is no evidence in that case of the law of China on that subject. As to
the French law in Cochin China it is Statute Law based on 1 S.S.L.R. 1; Leic. 418 ignorance of Chinese
Laws and Usages, or 4 Ky. 128. a desire to place concubinage and marriage on an equality. In any
case, French law has no authority in this Court. He then dealt with Rex v. Sim Boon Lip 7 S.S.L.R. 4.
So much for the chain of authorities said to have existed for the past 40 years. It is founded on the case
of Lao Leong An (supra) and in that case Staunton's Penal Code was the only evidence. In England the
question was raised in the case of Bethell v. Hildyard 38 Ch. D. 220. He then dealt with Khoo Tiang Bee
v. Tan Beng Whatt 1 Ky. 416, Hawah v. Daud Wood's O.C. 28; Leic 253. Chulas v. Kolsen Wood's O.C.
31; Leic. 462, and Choa Choon Neoh v. Spottiswoode [1869] 1 Ky. 216. This Court is being asked to
vary the Statute of Distributions by dividing the widow's third amongst an indefinite number of persons.
This it is asked to do on the basis of an alleged Chinese custom. If the Court granted participation now
asked for, these concubines would be getting more than they are allowed in China. Therefore the Court
would be creating a right foreign to English and Chinese law. An adopted son is not recognized by local
decisions but he holds a higher position in Chinese law than does a concubine; why then reject
adoption and admit concubinage? The decision is purely arbitrary and illogical. Again, our local Courts
have not recognized illegitimacy which is recognized in China. The custom of polygamy could not
originate in this Colony; it has not been proved to exist in China. No religious observance enters into
the ceremony (if any) of taking a concubine. It is part of the religion of a Mahomedan to take four wives,
but no part of the religion of a Chinaman. Hardship is easily removed by making a will. This Court will
not hesitate to reverse the decisions in Lao Leong An and Ing Ah Mit (supra) if they are wrong. He then
dealt with Exparte Willy re Wright 23 Ch. D. 118, and cited contra Markham v. Paget [1908] 1 Ch. 697
at p. 716.
R.G. van Someren (following on the same side). - Religion is not the determining factor in considering
whether a person is properly married. Bethell v. Hildyard 38 Ch. D. 220. The intestate in this present
case is a British born subject and is of Colonial domicil. This seems to have been overlooked into Court
below. In de Wilton v. Montefiore [1900] 2 Ch. D. 481, the parties were Jews of English domicil but
within the degree of affinity prohibited by English law though not by Jewish law. Their marriage was
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held invalid. Domicil and not religion is the important factor. The same applies where only one party is
British-Harvey v. Farnie 8 App. Cas. 43; the woman takes her husband's domicil. He referred also to
Dicey's Conflict of Laws 2nd Edition R. 172 23 Ch. D. 118. Questions of succession in this present case
can be decided only by the Statute of Distributions. That Statute refers only to wife or widow. The rule
that singular includes plural cannot be applied to this Statute because it would be repugnant to the
context. That Statute being an Imperial Act is not a "written law" within the local General Clauses
Ordinance (1 of 1888); therefore we are strictly bound by words of that Statute. But the formal judgment
of the Court below expressly states that respondents "as widows" are entitled under the Statute of
Distributions. There is not string of cases, as alleged, settling this point; even if there were, this Court
could overrule them if wrong. He then referred to In the goods of Abdullah [1835] 2 Ky. Ecc. 8; Wood's
Or. C. I., In the goods of Chu Siang Long [1858] Leic. 460, Regina v. Willians 3 Ky. 16. It will be noticed
that in the case of In the goods of Lao Leong An 1 S.S.L.R. 1; Leic 418, the decision stops at granting
administration to the first widow: the rest of the judgment was not material to the case and was merely
obiter. This case has been blindly followed: but should now be reviewed by the Court of Appeal. He
then referred to Khoo Tiang Bee v. Tan Ben Guat 1 Ky 413 and Jamaludin v. Haji Abdullah [1881] 1 Ky.
503. The Mahomedan Marriage Ordinance consolidates and limits Mohamedan marriage customs but
no Ordinance does the same for Chines. He referred then to Perak Order in Council XXIII of 1893. The
Law of the Domicil is test of how succession on an intestacy is governed. Under what law can the
claims of the respondents be recognized. Can they under the Charter of 1855? Domiciled British born
subjects cannot be recognized in a matter like this ex comitate. He then aruged that the Charter of
1855 was not in force using the same arguments as in the Court below (cf. supra).
E.R. Koek (for the plaintiff).- A concubine is not entitled to maintenance in English law, nor in India
Ramanarasu v. Buchamma [1899] L.R. 23 Mad. 282. That she may in Chinese law have a charge on a
man's estate after his death does not raise her to rank of wife. He then referred to Maxwell's
Interpretation of Statutes 4th Edition 461, R. v. Hogg 1 T.R. 728 and Field's Law of Evidence in India p.
106.
G.S. Carver (for respondent Neo Chang Neo). - The Chinese are polygamous. That being so, all the
women share under the Statute of Distributions. I adopt arguments of Mr. Braddell on that. What is
marriage as understood in England? Cf. Eversley's Law of Domestic Relations (Edition of 1885) p. 3.
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Concubine may mean wife or mistress. Webster's Dictionary, Encylopaedia Britannica. In Bethell v.
Hildyard 38 Ch. D. 220 similar state of things to those in present case. That case supports contention
that Chinese are polygamous. He referred to Hare's Notes on Chinese Family Law and Usage. Law of
China shows that (1) union between man and second wife confess by law consanguinity; (2) second
wife becomes part of family circle; (3) offspring by her are legitimate; (4) and entitled to succession; (5)
necessity of ceremony in taking second wife; (6) adultery committed by or against her is punished as
matrimonial offence; (7) then such a marriage is an indissoluble tie; (8) then she is entitled to
maintenance by a man's sons after his death. He referred to Staunton's Penal Code preface pp. i, xv,
xvi, xxix, xxxi, xxxii, pp. 49, 62, 84, 110, 111(n), 112, 113, 114, 117, 118, 120, 121, 236, 290, 292, 307,
487 and 488; Hare's Notes on Chinese Family Law and Usage pp. 4, 5, 6, 7, 10 and 17; Faber's Mind
of Mencius p. 153; Legge's Chinese Classics Vol. II p. 220, Vol. III p. 26, Vol. I p. 58 and 59(n); Wells
Williams' Middle Kingdom Vol. II p. 61. Dyer Ball's Things Chinese is not a scientific work but a popular
work. [HYNDMAN JONES C.J.-His knowledge is confined to Cantonese. SERCOMBE SMITH J.-Yes;
that is so.]
Roland Braddell (for respondent Cheang Cheng Kim). - Chinese are polygamous; the Courts of this
Colony have so treated them for the past 40 years. Bethell v. Hildyard 38 Ch. D. 220 shows polygamy
does not necessarily import equality of wives, as argued by Mr. Ellis.
In that case it was admitted throughout by Counsel and definitely found by the Registrar that the
Barolongs were polygamous. The case of Seah Liang Seah v. Seah Eng Kiat and others 4 S.S.L.R. 22
shows that there are two classes of wives whose sons are legitimate; and that there are also
concubines whose sons are illegitimate, cf. at p. 29 ibid, also LEACH J., at p. 36 ibid. Marriage is a
contract, and in the case of these second wives, there is a contract, and their children have a legal
status. By not acknowledging the marriage of a second wife one would deprive the sons of their rights
under Chinese law. That would be more serious than conferring more on the mothers than they would
have got in China. Both unions are permanent and not merely voluntary, cf. Staunton's Penal Code
121. As to the chain of cases for 40 years some are direct and some indirect authorities. There cases
are also evidence of the fact that Chinese are polygamous. They are In the goods of Lao Leong An 1
S.S.L.R. 1; Leic 418 in 1867. This judgment was not obtier and has never been questioned till this
present case. In Lim Chye Peon v. Wee Boon Tek [1871] 1 Ky. 236, the supposed matrimonial
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jurisdiction of the Court was invoked. Bond based his case on the fact that the Chinese are
polygamous, and that therefore following Hyde v. Hyde and Woodmansee L.R. 1 P. & D. 130 a
Matrimonial Court could not interfere. This was in 1871. In the goods of Khoo Chow Siew 2 Ky. Ec. 22,
the deceased had two wives and children by both and Woods Jur. (at p. 23 ibid) argued that the Judge
of the Supreme Court being the ordinary under the Statute of Distributions could not recognize the
status of women in polygamous marriages. This was in 1872. In Quaik Kee Hock v. Wee Geok Neo 4
Ky. 128, the deceased left two wives surviving him and the Registrar made a finding to this effect. This
was in 1886. In the goods of Ing Ah Mit 4 Ky. 380 the Court followed the case of In the goods of Lao
Leong An 1 S.S.L.R. 1; Leic 418. This was in 1888 and is a direct authority, and the Courts have always
held similarly to this day. In Regina v. Yeok Boon Leng which was a prosecution for bigamy, Adams
opening for the Crown admitted that it was an accepted thing that the Chinese were polygamous. This
was in 1890. In Lim Chooi Hoon v. Chok Yoon Guan 1 S.S.L.R 72, rose for the plaintiff based his
argument on the fact that the Chinese were polygamous. Adams for the defendant argued contra.
COLLYER J. found that they were polygamous at p. 75. Chinese marriage he held is "not an exclusive
contract." This was in 1892. Seah Liang Seah Eng Kiat S.S.L.R. 22 (cf supra) also shows Chinese are
polygamous. This was 1895. Napier cites cases to this effect at p. 40 of his Introduction to the Laws of
the Straits Settlements published in 1898. Had there been any case to the contrary he would have
known of it and cited it, as would Mr. Registrar Velge or Van Someren. Can this Court now upset such a
course of authority? He referred to sec. 9 of the Courts Ordinance XXX of 1907, and cited Pugh v.
Golden Valley Railway Co. [1880] 15 Ch. D. 330 336, Smith v. Keal [1883] 9 Q.B.D. 340, 351, Foakes v.
Beer [1884] 9 A.C. 605, In re Wallis [1890] 25 Q.B.D. 176. In comparing Mohamedan with Chinese it
msut be remembered that divorce is much easier under Mahomedan law, when the husband can
divorce his wife merely by saying "I give you three talak." than under Chinese law. So that if the Courts
have recognized Mahomedan marriages which are more precarious, though equally polygamous, for
purposes of succession, they should do the same for Chinese marriages a fortiorari. He then referred to
Choa Choon Neo v. Spottiswoode 1 Ky. 216, Ong Cheng Neo v. Yeap Cheah Neo 1 Ky. 326, and Khoo
Tiang Bee v. Tan Beng Whatt 1 Ky. 413. As regards the recognition of polygamous unions in England,
the cases cited by Messrs. Ellis and Van Someren are when matrimonial jurisdiction are invoked. What
they will do in cases of succession is doubtful, Dicey's Conflict of Laws, 1896 edition p. 639. Bethell v.
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Hildyard 38 Ch. D. 220 is the only case cited that has any bearing on the question. In that case, Bethell
never treated the union as marriage at all. STIRLING J., seems to have overlooked the proviso at the
end of the judgment in Hyde v. Hyde and Woodmansee L.P. 1 P. & D. 13. Again counsel admitted his
case was lost if the marriage was a polygamous one. He then referred to Piggot's Extraterritoriality 2nd
edition p. 235-249. In 1856 Turkey was admitted into the family of nations and in 1899 China was
admitted. There are the only known polygamous nations within public International Law. It is difficult to
see how if they are admitted to public International Law, their citizens should be deprived of rights
under private International Law. It is against the principles laid down by JAMES L.J. in Goodman's
Trusts 17 Ch. D. 266.
Harris (for respondent Mah Imm Neo) referred to Gray's China, 184, Legge's Classics Vol. IV p. 166,
and adopted the arguments of Messrs. Braddell and Carver.
Hon. E.C. Ellis (in reply) dealt with his own case and the arguments of Messrs. Carver and Braddell on
lines similar to his opening. As to the power of the Court to upset the past decisions, see Hamilton v.
Baker [1889] 14 A.C. 209. The case of Goodman's Trusts 17 Ch. D. 266 is explained in that of In re
Grove, Vaucher v. the Solicitor to the Treasury [1888] 40 Ch. D. 216. The rules of private International
Law expressly exclude polygamous races.
E.R. Koek then opened the Plaintiff's appeal. - The judgment in the Court below was wrong in holding
children of inferior wives entitled to share like and like in the two-thirds of intestate's estate. He cited
Duncan v. Lawson [1889] 41 Ch. D. 394, approved in Pepin v. Bruyere [1902] 1 Ch. 24, and Secretary
for Foreign Affairs v. Charlersworth Pilling & Co. [1901] A.C. 373.
The other counsel adopted their arguments on the appeal of Tan Leok Yang.
Wee Theam Tew then opened the Appeal of Cheang Cheng Kim. His client's child, Choo Ah Chee, was
admitted to have been begotten by the deceased. He was legitimised per subsequents matrimonium.
Faber's Doctrines of Confucius, p. 81, Hares's Notes on Family Law and Usage of the Chinese p. 12.
He then cited Gray's Trusts [1892] 3 Ch. 88 Khoo Tiang Bee v. Tan Beng Gwat 1 Ky. 413, Goodman's
Trusts 17 Ch.D. 266 Tootall's Trusts [1883] 23 Ch. D. 532, Johnson Roberts v.Attorney-General [1903]
1 Ch. 821, Re Bozzelli's Settlement. [1902] 1 Ch. 751.
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Hon. E.C. Ellis (for respondent Tan Seok Yang). Legitimacy turns on domicil. Dicey's Conflict of Laws
519, 521, 523, Birtwhistle v. Vardil [1840] 7 Cl. & F. 895, Duncan v. Lawson 41 Ch. D. 394.
On the 26th June 1909 the Court of appeal delivered the following judgments.
HYNDMAN-JONES C.J.
[The learned Judge commenced by setting out the history of the case and the finding of LAW A. 9 C.J.]
The first question to be considered is whether the Chinese are polygamous, and a great deal of
evidence for and against that proposition was put before us. The evidence consisted of:-
(1) Appropriate books and treatises written by various learned persons who have made a special study
of Chinese habits and institutions;
(2) The statements on oath of Tso Ping Sing, Consul-General for China, Tsuen Sze Ting, the acting
Consul-General Wong Kim Fa, a Chinese merchant, and the evidence of Lo Tseng Yao, a former acting
Consul-General who gave evidence in the case of Rex v. Sim Boon Lip 7 S.S.L.R. 4, a case tried at
Malacca in 1901;
(3) The Ta Tsing Leu Lee of China so far as we can gather its provisions from Staunton's translation
published n 1810, and so far as we have been able to check the translation by the help of our own
sworn Chinese Interpreter. Staunton's translation is admittedly not a literal translation of the original; he
has endeavoured, as he says, "to draw the "middle line between the unfaithfulness of a free and the
"ungracefulness and almost ungrammatical obscurity of a "close version," and he has ventured "to
embody in words "these ideas which, though forming an integral part of "the sense of the text, were yet
left by a sort of ellipsis "to be understood by implication and reference."
While accepting his translation generally, it is important to remember these facts.
Dealing first with the evidence to be derived from books of authority, it is clear the Staunton considered
that the women, whom, in addition to his wife (t'sai), a Chinese brought into his household for sexual
purposes, occupied the position not of concubines but of inferior wives. In his footnote to s. ciii (the
heading of which section he translates by the words "Regard to Rank and Priority among wives") he
says. "A "Chinese may afterwards lawfully espouse other wives agreeably "to his own choice and with
fewer ceremonies as well as with"out any regard to equality in point of family and connections. "These
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wives are all subordinate to the first wife, but equal "in rank among themselves. In describing this
connection "the term 'inferior wife' has been preferred to that of hand-"maid or concubine, as there are
always certain forms of espousal, "and as the children of each wife have a contingent right to "the
inheritance" We find, therefore, that Staunton almost invariably translates the Chinese character t'sip by
the words "inferior wife."
Hare is not quite so pronounced on the subject and he generally alludes to those women as
'concubines." In his Notes on the Family Life and Usages and on the Criminal Code of the Chinese,
published in 1904, he says at p. 7; "A Chinese has but one wife or t'sai, secondary wives or "t'sip
(concubines) have a legal status too, but it is different "from that of the first wife. A t'sai or principal wife
is deemed "to be related to all the members of her husband's family; "the concubines are regarded as
strangers and are not addressed "or honoured with respectful names in the family."
Later on at p. 10, he has a paragraph headed "Chinese Polygamy" and he says: "It is a common fallacy
to think "the Chinese are altogether polygamous; the poor cannot afford "to maintain more than one
wife; the poor people are all "monogamic, but amongst the higher classes polygamy is common," and
later on again he says: "but even rich people as a "rule do not take concubines except to help add to
the succession "of the line." These words are noteworthy because the succession to the line is an all
important matter with the Chinese.
Dyer Ball in his Things Chinese, first published in 1891 and now in its fourth edition, treats these
women as merely concubines. He says under the title "Marriage": "A girl is "but once married in China;
she rides in the bridal chair but "once and only if she is the legal principal wife . . . . "only one women in
a man's household holds the position of a "proper wife; all the others and he may take as many as he
"likes-are not principal wives nor legal ones but secondary "wives or concubine', though their children
are on an equality "with those of the first wife." And under the title "Divorce" he says: "The case is quite
different with the so-called secondary "wives. They are not a man's wives in the sight of the law, that "is
to say, they do not stand on a footing of equality though "recognized as concubines, for there is only
one legitimate first "wife; and a man is free to dismiss these concubines from his "bed and board and
treat them in a way he would not dare "to act towards his first wife. This treatment may be modified
"more or less by the prospective counter-action of the so-called "wife's relations and her social position
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presuming she has any. "If she has none, or if her position is of no account, as is more "than likely often
to be the case with a secondary wife, beggary "or prostitution stares her in the face unless she is
fortunate 'enough to enter another family in a similar position." Again, "he says, under the same title,
that divorce is rendered to a great extent unnecessary "Because it is much simpler for a "Chinese in
case no son is born to him to take a concubine "or secondary wife (not a second wife except by
courtesy for a "Chinese has only one legal wife) and increase the number one "after another until he
obtains the longed for heir or future "worshiper at the family tombs, or failing this, he may adopt "a son."
If Dyer Ball therefore is to be trusted it comes to this that the Chinese are monogamous, but that
concubinage is a recognized institution, the dominant reason for the institution begin that it is an all-
important matter with the Chinese that a man should be get a son to offer sacrifices for him on his
decease and to worship at his tomb; and the concubine is regarded, failing the wife, as the means by
which this great essential may be attained. But is Dyer Ball to be trusted? I do not mean to imply that
he has knowingly misrepresented the position; but it is possible that in dealing with such a variety of
subjects as he has done in his very valuable treatise, he may have fallen into inaccuracies with regard
to some of them. On the other hand it may be, of course, that the witnesses to whom I have referred to
have unduly exalted the position of a concubine. But it is not only on this subject that these learned
writers differ; they differ, for example, in their view as to the position of a widow.
Dyer Ball says under the title "Woman": "A woman can "never marry twice legitimately, that is to say, a
man falling in "love with a widow may take her as a concubine." But Hare says at p. 7: "A widow may
lawfully contract a second marriage. "Her deceased husband's parents may act as her authoriser,
"falling which her own parents may act in the same capacity. "But in actual practice such consent is not
considered necessary "provided the permission of the relatives of the widow is "obtained." True he
goes on to say that the widow of an official of high rank is forbidden to marry again, but Dyer Ball treats
the prohibition as of general application. Furthermore, Hare gives the technical legal terms to be used
by the man and by the woman on the marriage of a widow.
Staunton in his translation of s. cv. of the Tsa Tsing Len Lee implies that widows, subject to certain
exceptions, may marry again. These learned authors therefore differ as much on this subject as they
would appear to do on the subject of polygamy.
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We were also referred to Archdeacon Gray's China, a work recommended by Dyer Ball and from which,
he says, he has largely quoted. Archdeacon Gray states that the Chinese are theoretically
monogamous, although polygamy as a matter of fact is practiced in several districts.
Turning now to the evidence which was given by affidavit and viva voce, it appears to be all in favour of
monogamy. [The learned Judge then quoted from the evidence of Mr. Tsuen Sze Ting reported ante-
and he then went on to quote Mr. Tso Ping Ling's evidence also reported ante.]
But however great the respect we may have for the learned authors who have made the institutions of
the Chinese their special study, and however great the respect we may have for the opinions of the
Chinese gentlemen who have given evidence upon the subject-all of them, excepting one, holding high
official rank and one of them, Mr. Lo Tseng Yao being not only a high official of his own country and
versed in its laws, but also, as I understand, a barrister-at-law of the Inner Temple I say however great
the respect we may entertain for the views of these gentlemen, we cannot allow them to decide this
question for us. On the contrary it is our duty to consider the position which the law of China has given
to these woman so far as we can gather if from all the sources above indicated, and in the light of that
law and having regard to the position and being aided but not restricted by the evidence to which I have
referred, decide for ourselves the question whether the Chinese as a nation are monogamous or
polygamous.
Dealing with the matter in this way let us, first of all, consider how the relationship between a Chinese
and a woman whom he proposes to make his t'sip is entered upon. This would seem to be regulated by
custom rather than law. Stuanton in his footnote to s. ciii. of the Tsa Tsing Leu Lee says: "There are
always certain forms of espousal" but he does not say what these forms are, and I have been unable to
find any reference to the subject in the Tsa Tsing Leu Lee itself. Hare on the other hand on p. 6 of his
treatise says: "The acquisition "of a t'sip or concubine is conducted without the ceremonies "mentioned
in the case of these first wife. As a rule only one "marriage document is made called a Lai Shu in which
the "purchase money is usually definitely stated . . . On "arriving at the family house the t'sip or
concubine is bound to "Ko Thau or do obeisance on her knees to the t'sai or wife and "to the parents
and relatives of her husband." It is unfortunate that Hare does not give the reference to the Chinese
authority from which he has taken this passage, and this seems to be a defect in the treatise generally;
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but I am , nevertheless, disposed to attach the greatest weight to everything that falls from his pen
inasmuch as the Treatise has been revised and amended by the late Sir Lo Teng Lu, the Hon. Dr. Ho
Kai, C.M.G., M.L.C., barrister-at-alw, Hongkong and Mr. Lo Tsong Yoa who was acting Consul-General
for China in Singapore and gave evidence in the case at Malacca already referred to.
Mr. Tsuen Sze Ting said: "As to a concubine she may be "purchased with money without any ceremony
whatever," while Dyer Ball under the title "Bethrothal" after dealing with betrothals in the case of a wife,
says: "With concubines or "secondary wives it is quite different. In their case a go-between may be
employed or not. In such a betrothal all "that generally takes place in Canton is for the woman to pour
"out a cup of tea for her future husband to drink, and a parcel "of money, wrapped up of course in red
paper, and containing "two or three or ten dollars or so, it placed on a tray for her; "but in other places
there may not be as much ceremony about "it as that."
On the other hand, Archdeacon Grey says at p. 214 of his first volume: "Although the marriage of a
second or third wife "is not attended with that degree of pomp and ceremony which "marks the
marriage of a first wife, the religious ceremonies "are precisely the same in both cases. At the close of
the religious ceremonies the second wife is taken into the presence "of the first before whom she
kneels and performs the Kow-Tow. "At such marriages it is usual to call into requisition the services "of
an aged man who is one of the class called Fa Koong. "Upon him devolves the duty of exhorting the
newly married "couple to live together in the bonds of affection. The bride "is also exhorted to love,
honour and obey the first wife of "her husband."
The evidence, therefore, is very contradictory, but I am disposed to think that when it is intended to take
a woman into a man's household as a concubine for the purpose of securing a succession, or at all
events as more than a temporary mistress, there are some sort of ceremonies; although these
ceremonies, in some districts and among some classes, are of a more or less perfunctory character,
and always such less elaborate than those adopted in the case of taking t'sai.
Next, is the relationship thus created of a temporary or permanent nature?
Dyer Ball, it will be remembered, says that a man may dismiss these come at his will and pleasure.
Turning to section cxvi. of the Tsa Tseng Leu Lee the heading which Staunton translates by the words
"Law of Divorce" but which, as the interpreters inform us, would be correctly rendered by the words
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"The putting out of the T'sai," I find there are certain penalties imposed on a Chinese who divorces his
T'sai without legal cause. There are also certain penalties imposed on a T'sai who deserts her
husband; and I find that Staunton, after enumerating the penalties in either case, has a paragraph to
this effect: "In all the 'foregoing cases the first wife only is intended to be adverted to, "but the laws in
every instance shall be applied in cases of the "inferior wives, upon a reduction being made in the
punishment "to the extent of two degrees for each offence."
Now, if this paragraph is a correct rendering of the original it would tend to establish two points: (1) That
subject to divorce the union with a t'sip is of the same permanent character as the union with a t'sai: (2)
There would be an inference that the t'sip is also equally entitled with the t'sai to maintenance during
her lifetime.
But again a question arose as to the correctness of the translation, and the Court Interpreters have told
us that the literal translation of the Chinese character would be "In case of a t'sip two degrees less in
each case." It is obvious therefore that Staunton has been avoiding what he calls "the ungracefulness
"and obscurity of a close version," and the further question arises whether in doing so, he has altered
the sense of the original.
The interpreters tell us that the eleven paragraphs into which Staunton has divided the section appear
in the original as five paragraphs; and that the paragraph to which I have referred is part of the two
paragraphs immediately preceding it, which themselves are part of each other. These paragraphs
therefore, of which Staunton has made three, really stand by themselves as one paragraph, and it is
arguable that the words used by Staunton, viz., "in all the foregoing cases" are limited to (a) the cases
in which, the husband refusing to consent to a divorce, the t'sai quits her home and absconds, or during
her absence marries again, an to (b) the case in which when a husband he has been guilty of
desertion, the t'sai without giving the necessary notice to a tribunal of Government, quits her home and
absconds or marries again, thus excluding the t'sip from the previous provisions of the section. If this
construction of the section be adopted it would clearly show that he t'sip in the same way as the t'sai is
bound to her lord and master but it would not clearly show that the lord and master is bound to the t'sip.
Having regard, however, to the manner in which the law, in other respects, has safeguards the t'sip I
find myself unable to limit the operation of the words in the way suggested; for example, if the lord and
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master even only proposes to sell his t'sip he is punishable; and if he actually sell her he is punishable
with 80 blows and two years banishment (Tsa Tseng Leu Lee s. cclxxv.); then again, if he connives at or
consents to the adultery of his t'sip he shall be punished just as severely as if he had connived at or
consented to the adultery of his t'sai, viz., with 90 blows; and if he compel either of them to engage in
criminal intercourse he shall be punished with 100 blows, but in the latter case the woman shall be
considered innocent and be sent back to her parents or family; then again, assuming that the t'sip is not
divorced and remains in the master's household, she appears, without doubt, to be entitled on his
death to maintenance out of his estate, and if the sons of the deceased fail to do their duty towards her
in this respect she can appeal to the Court, and the Court will, on good cause shown, not only remove
the sons from control of the estate, but also, with the object of preserving her interests, place the estate
in the hands of an official administrator; indeed, so far as maintenance after the master's death is
concerned, her position is little inferior to that of the t'sai, the only difference being that on failure of
male issue the t'sai has a life interest in the estate, and even when there are sons a controlling voice in
its management, but either t'sai or t'sip is entitled to go to the Court for protection.
Having regard to all these facts I am of opinion that, subject to divorce, the union with the t'sip is
contemplated by the law to be of a permanent nature and the inference is that she is entitled to
maintenance during her lifetime. I have already said that in the diversity of opinion before us we must
decide the question of monogamy or polygamy mainly by a consideration of the position which the law
assigns to these women; and it appears to me that when you find that concubinage is not only tolerated
by the law but recognized as a legal institution, then concubinage ceases to be that which Western
nations are accustomed to understand by that name and becomes polygamy; and I may add that I am
fortified in this conclusion by a perusal of Bethel's case In re Bethell, Bethell v. Hildyard 38 Ch. D. 220,
where the circumstances as to a plurality of women amongst the Baralongs were very similar to the
present case (except that they are not safeguarded by the law or customs of the Baralongs in the way
in which these women are by the law in China). In Bethel's case no question was raised as to the
propriety of the finding of the Chief Clerk that the Baralongs were polygamous.
With regard to the case of the King v. Sim Boon Lip 7 S.S.L.R. 4, I wish to say a very few words. The
case, it will be remembered, was tried in 1901 at Malacca, and it was contended before us that the
decision in that case must have involved a finding that the Chinese are monogamous. The evidence
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brought before the Court, consisting as it did of the uncontradicted statements of Mr. Lo Tseng Yao
certainly warranted such a conclusion; and it was said that if the Chinese were polygamous then
neither a Criminal Court any more than a Matrimonial Court would recognize polygamy; and so the
King v. Sim Boon Lip must be taken as an authority for Chinese monogamy.
I am not quite sure that the contention is sound because what Sim Boon Lip did was to take to himself
a woman as a first wife during the lifetime of his first wife-an offence clearly punishable by the law of his
own country, and having regard to the attitude taken towards polygamy by the Courts of these
Settlements, very properly punishable as bigamy here. But be that as it may, we have had a wealth of
authority put before us in this case which was not put before the Court in Malacca; and it is the duty of
this Court of decide the question on the evidence before it; and the weight of that evidence is in favour
of polygamy.
The Chinese then being polygamous, the next question for our determination is whether this Court
should recognize these marriages; and if so, whether we are at liberty to apply the Statute of
Distributions under which (except in the case of Mahomedans) the estates of intestates are distributed
in this Colony so as to meet the exigencies of the present case. The question of recognition was said to
be further complicated by the fact that Choo Eng Choon was a British-born subject domiclied in
Singapore. According to the principles of the Law of England a marriage valid by the law of the country
where it is celebrated is valid everywhere, assuming always that the lex domicilii imposes no personal
invalidity on the parties, but the rule is subject to certain exceptions the most prominent of which (and
the one which concerns us at present) is that the English Courts will not recognize polygamy. But even
in England it is doubtful whether this principle of non-recognition in applicable to all Courts or only to
those Courts which deal with the rights and obligations of the parties inter se.
In Hyde v. Hyde and Woodmaster L.R. 1 P. & D. 130, a suit for the dissolution of marriage, Lord
Penzance clearly threw a doubt upon the propriety of accepting the exception unreservedly, for at the
end of his Judgment he said: "The Court does not profess to decide "upon the rights of succession or
legitimacy which it might be "proper to accord to the issue of polygamous unions; nor upon "the rights
or obligations which people living under the sanction "of such unions may have created for themselves.
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All that is "intended to be decided is that as between each other they are "not entitled to the remedies,
the adjudication or relief of the "matrimonial law of England."
It is true that in Bethel's case - In re Bethell, Bethell v. Hildyard 38 Ch. D. 220 (a case decided some 22
years afterwards in which the right of an infant to be declared legitimate and to succeed to property
came in question) STERLING J. (conceiving himself, as he said, to be bound by Hyde v. Hyde and
Woodmansee) decided that the marriage which had been contracted by Bethel according to the
customs of the Baralongs who practiced polygamy was invalid, and that the infant born of the marriage
was illegitimate. But in that case not only was Bethel a domiciled Englishman and professedly a
Christian, but there had been an admission by Counsel for the infant to the effect that "if the marriage
involved polygamy there was an end of the infant case." and, as was contended before us, this
admission may have induced the learned Judge to disregard or lose sight of LORD PENZANCE'S
reservation. However that may be, there appeals to be no case in England in which the principle of the
reservation has been adopted; but on the other hand, so far as I know, Bethel's case is the only case
against its adoption.
But the conditions obtaining in these Settlements are very different from the conditions obtaining in
England; and as the facts are, only a fraction of the population here is, or ever has been Christian; and
the remainder is almost entirely composed of races among whom polygamy has been an established
institution from the earliest times, and a goodly proportion of these races are British born subjects
domiciled here, as was Choo Eng Choon whose cause we are now considering, and Lao Leong An
whose case I shall refer to later.
Having regard to the conditions above mentioned, it is small wonder that the Courts of this Colony have
invariably taken upon themselves the responsibility of extending to polygamous unions the principle
which makes a marriage which is valid according to the law of the country where it is celebrated valid
everywhere; and that they have further held that when the law of the country is inapplicable, then such
a union is valid if it is celebrated according to the religion or usages binding on the contracting parties,
and further that in such cases the lex domicilii of the parties, i.e., the law of the Straits Settlements,
imposed no personal incapacity on them.
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That the Courts have assumed this responsibility and held as above stated is, I think, abundantly clear.
As to Mahomedans, FORD Ag, C.J., in Khoo Taing Bee v. Tan Beng Gwat 1 Ky. 413, said: "The
"practice of allow in the second and third wives to share in the "husband's estate is too well established
to be now shaken;" and earlier than that, viz., in 1843, in the case of In re Chu Siang Long's Estate 3
Ky. 30 SIR WILLIAM NORRIS R. said: "I have frequently "directed the two or three widows of a
Mahomedan intestate to "rank as one widow and their several children as one family in "the distribution
of the estate." As to Chinese, SIR BENSON MAXWELL R., in 1867 in the case of In the Goods of Lao
Leong An Leic. 418, who was domiciled in Singapore, granted administration to the first wife and
declared the second wife entitled to an equal share of the intestate's property. In that case the learned
Recorder said: "It was much urged in resisting the claim of the second wife "that the condition of the
latter was not that of a wife, but merely "of a concubine. I think it right to say that I had to consider this
"question some years ago in Penang and that I was of opinion that "a second or inferior wife was to all
intents and purposes a lawful "spouse, and was entitled to share with the first or superior wife "in the
property of her deceased husband." Later on in the case of Ing Ah Mit 4 Ky. 380 PELLEREAU J.
granted administration to two Chinese widows. It was contended that sitting in the Court of Appeal, we
are bound by these decisions; and no doubt that is so; but on the other hand, it was contended that
they are decisions which have been held authoritative in these Settlements for a great number of years;
and that consequently we ought not to disturb them now.
I should have felt no difficult in acceding to the latter contention (even supposing I were doubtful of the
propriety of the decisions) if the decisions had merely gone so far as to extend a principle of law (and
not as was contended to the length of actually altering a statute); for example, if a legacy had been left
"to each of the widows of Choo Eng Choon" without naming them, I should have felt no difficulty in
holding that each of these women was entitled to her legacy. But the Courts have gone further than that
and have not only recognized these polygamous marriages, but have taken upon themselves to frame
a system of distribution which they conceived to be applicable to the circumstances of such cases; and
it was contended that in doing so the Courts have arrogated to themselves the functions of the
legislature, and however equitable their action, it could not be supported.
Our attention was directed to the case of In re Goodman's Trusts 50 L.J. Ch. 425 in which the
dissentient Judge, LUSH L.J., held that the Statute of Distributions like every other must be construed
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in the sense which the Common Law puts upon the words, and that "children" means such and such
only as are recognized in our table of consanguinity and that consequently a child born in Holland
before wedlock but legitimatised according to the law of Holland by the subsequent marriage of her
parents who at the time of her bright were domiciled in Holland, was not entitled to share as one of the
next-of-kin in the personal estate of an intestate who had died domiciled in England. I take it that he
would have considered in the same way that "wife" means "wife" in the sense in which we understand
the term and not wives; but his view was not the one taken by the majority of the Court, JAMES L.J.,
pointing out that the Statute "was not a Statute for Englishmen only . . . . "but applied universally to
persons of all countries, races and "religions whatsoever," and operated in favour of a person legitimate
by the law of another country though not legitimate by the law of England.
On this branch of the case I have come to the conclusion, though not without hesitation, that the view
taken by my brother BRADDELL is the correct one, and that if the Statute was broad enough to cover
the case of Hannah Pieret it is also broad enough to cover the case of the unions we have been
considering-unions which were entered into in accordance with the laws and usages of the contracting
parties which the Courts have, in my opinion, rightly recognised, and that an apportionment among all
the widows of the deceased of the share which in England would properly go to the wife was, as my
brother puts it, not so much an altering of the Statute as an application of it to existing circumstances.
But in any case I feel that having regard to what was said down in the case of Exparte Willey in re
Wright 23 Ch. D. 127, to which I drew attention during the argument it would not be our duty to disturb
the decision of the Court below.
SERCOMBE SMITH J.
[Sets out the history and facts of the case and then proceeds.]
It is important, I think, to repeat that the domicil or origin of the deceased intestate Choo Eng Choon
was Colonial and that he was a natural born British subject. He was not a person of Chinese domicil,
who had moved to this Colony and retained his Chinese domicil.
The law applicable to these appeals is the English law of marriage and succession on intestacy as it
existed in 1862 unless that law has been altered by Ordinance or Charter.
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That law is the English Common Law in respect of marriage and the Statute of Distributions in respect
of succession on intestacy.
Local legislation has regulated Christian, Hindoo, Parsee and Mahomedan marriages but not Chinese
marriages.
The Unions contracted by Chinese are therefore governed by the English Common Law and
succession on intestacy amongst the Chinese is governed by the Statute of Distributions.
It was decided in Regina v. Millisis 10 Cl. & F. 534 that a marriage to be valid at Common Law must be
celebrated in the presence of an episcopally ordained clergyman.
At page 621 of Dicey's Conflict of Laws (2nd edition ) it is said that 'the authority of Regina v. Millisis is
to a certain "extent doubtful. It has not been followed in the Canadian "Courts. It has not been followed
in the United States. It is, however, clearly binding on English Courts."
A query is added as to whether it is binding the Colonial Courts the appeal from which is to the Privy
Council and not to the House of Lords.
In Eversley's The Law of Domestic Relations (3rd edition) it is stated in note 5 on page 15 that it has
been held in India, where the Common Law prevails, that the intervention of a clergyman in holy orders
is not necessary.
None of the Chinese unions under notice in these appeals satisfies the criterion laid down in Regina v.
Millisis for a valid marriage at Common Law.
Then is there any indication that law may be relaxed in this Colony? I think that the Letters Patent of
1888 do not help.
I agree with SIR BENSON MAXWELL when he said in Regina v. Willians Leic. 81: "It does not seem to
me that the Charter has in any "respect modified the law of England by any exceptional "adaption of it
to the religions and usages of the East." He goes on to say: "Thus if a Mahomedan or Hindoo or
Chinese "marriage celebrated here according to the religious ceremonies "of the parties be valid it is
not because the Charter makes it "so, for as I have already observed, it makes no exception in "favour
of native contracts of any kind but because the law "of England recognizes it. The general rule of that
law is "that the validity of a marriage is to be determined by the law "of the place where it is celebrated."
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With this I also agree. Then he says: "But when the law of the place is inapplicable "to the parties by
reason of peculiarities of religious opinions "and usages then from a sort of moral necessity the validity
"of the marriage depends on whether it was performed according "to the rites of their religion." I can
find no authority to the effect that a union contracted either in England or in a British dominion in a
manner which does not follow the law of England or the British Dominions is a valid marriage.
I am of opinion therefore that a Chinese union in this Colony unless it complies with the requirements of
the English Common Law as enunciated in Regina v. Millisis is not a marriage and I am not prepared,
much as I should wish, to waive that portion of the rule in Regina v. Millisis which requires the presence
of a person in holy orders. But assuming that I am wrong in this opinion and that a Chinese may
contract a union valid at common law without the intervention of such a person provided that the union
was contracted according to rites would should be considered by the parties to be binding it would still
be necessary to consider whether that union amounted to a marriage within the meaning of that term in
English Law, viz., the voluntary union for life of one man and one woman to the exclusion of all others.
The evidence in this case leaves no doubt in my mind the unions of the deceased with Tam Kit Neo and
Tam Seok Yang and the other women do no comply with the definition of marriage in English law; they
were not monogamous unions. On this ground also I must hold that the deceased was never married
according to the law of this Colony.
Here it is convenient to remark that as no question of foreign law arises in these appeals, the Court
below was not entitled to receive or act on evidence of the laws of China. But assuming that a question
of foreign law was raised, it appears to me that the Court below was in error in relying on other than
expert evidence on the subject. The Penal Code of China as translated by Staunton and books of
reference were in my judgment clearly inadmissible. That translation was inadmissible because under
s. 38 of the Evidence Ordinance 1893, it did not purport to be printed or published under the authority
of the Government of the country whose law might be in question (cf. also s. 45 of the Evidence
Ordinance); and books of reference may be resorted to only under the circumstances enumerated by s.
57 of the Evidence Ordinance 1893 which does not include an inquiry into foreign law. In this view SIR
BENSON MAXWELL was wrong in gathering the law of China from Staunton's translation as he did in
the case of In the goods of Loa Leong An Leic. 418. The view which I take in this matter was that also
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taken by WOOD J. in Regina v. Yeoh Boon Leng 4 Ky. 630, who rejected "The Middle Kingdom,"
Chinese books not proved to have been published by authority of he Chinese Government, and the
evidence of a French gentleman who was advanced as an expert because he had studied the laws of
China. I would also add a word of warning against reliance being placed on the accuracy of Staunton's
translation in which I myself have detected inaccuracies. In support of this warning I quote Mr. G
Jamieson late of H.B.M. Censular Service in China who says with regard so s. cviii. of the Penal Code
of China: "Staunton seems to have misunderstood the drift of this and the next chapter altogether."
(The China Review, vol. 10 No. 2, p. 82, note 1) It results that none of the women with whom the
deceased contracted unions were wives and therefore not widows and that all the offspring are
illegitimate children.
This being so are these women and children entitled to share in the intestate's estate under the Statute
of Distributions? I think not. The arguments against this view were two: (1) that a series of cases
decided in these Courts has recognized the claims of such women and children to share under the
Statute; (2) that these decisions are binding by virtue of their antiquity.
A consideration of the cases cited satisfies me that there is no decision to the effect that the women
with whom Chinese has contracted unions are entitled to share the wife's share under the Statute of
Distributions or that the children of such unions are legitimate and entitled to divide the children's share
under the Statute.
In the Goods of Lao Leong An Leic. 418 [1867] was much relied on. These two petitions were filed
praying for letters of administration, one by the first wife, and the other by the second wife of the
intestate. SIR BENSON MAXWELL said: "I see no sufficient 'reason for refusing the application of the
fist wife and letters of "administration will therefore be granted to her." The sole point necessary for the
decision in the case was to whom of two petitioners administration should be granted. The case is a
precedent only for granting administration to the first wife of a deceased intestate Chinese. The rest of
the Judgment is obiter and does not decide that a second wife is entitled to an equal share in the
intestate's property. If this dictum from which I dissent has been accepted as a ruling since 1867, then
bad advice has been given to clients. This dictum was uttered after an examination of Chinese law as
presented in Staunton's translation.
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I consider that the learned Recorder was to entitled in that case to inquire into Chinese law, for the
intestate there had a Colonial domicil. If this view is correct, there was no basis on which he could
conclude that the status of a secondary wife was practically on a par with the status of a first wife.
But if the learned Recorder was to act on his view of that has (a view which I do not accept) that all
women with whom Chinese have contracted unions are wives and not one a wife and the others
concubines, why not go further and decide their rights under an intestacy by Chinese law? This he
declined to do. He first arrives at their status by Chinese law and then states their rights on an intestacy
according to English law. I think that he was wrong both on Chinese law and on English law. In his
opinion, a concubine may be divorced; that is not the Chinese law. He has mistaken the law on that
point. Neither of the sections of the Penal Code on which he relies, nor accepted authorities uphold that
view. Dr. Giles, Professor of Chinese in the University of Cambridge, does not countenance that view in
his dictionary nor does the following extract from page 113 of "Le Mariage Chinois au point de vue
legal" by Le P. Pierre Hoang, being No. 14 in the Varieties Sinologiques published at Shanghai by the
Catholic Mission. "Le epouse est la compagne "de son Mari, d'une condition egale a la sienne; c'est
pourquoi, "sauf un des sept defauts, elle ne peut pas etre repudiee an "bon plaisir du mar. Mais il en
est tout autrement d'une "concubine. Elle n'est qu'une esclave au service du maitre "d'une condition
humble et vile. Tout qu'elle est agreable au "maitre, elle est gardee; si elle lui devient deplaisante, elle
est "renvoyee. Son renvoi est sans importance."
I adopt this passage as accurately portraying the relative positions of the first and second "wife" and
generally and specifically as to divorce.
Even on the only point which was decided by Lao Leong An's case, that case was not followed in In the
goods of Ing Ah Mit 4 Ky. 480. (1888) where the Court went further than SIR BENSON MAXWELL did
in 1867 and granted joint administration to two "widows." Thus in 1888 the 1867 case was not
considered as binding on the only point which it decided. The decision in the later case is the more
logical one for if the Recorder in 1867 expressed an unnecessary opinion that a first and a secondary
wife were entitle to share equally the widow's share in an intestacy it was illogical not to grant joint
administration to both the so-called wives. Further if these wives are to share equally because they are
regarded as wives by the law of China then all persons regarded by the law of China as legitimate
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children, e.g., adopted children, should shares in the children's portion under the Statute. Yet the
learned Recorder expressly remarked in Regina v. Wllians Leic. 66, decided in 1859, that he had held
that the adopted son of a Chinese domiciled here was not entitled, in that character, to administration or
to distributive share of his adoptive father's land. English law recognizes neither polygamy nor the
relationship of adoption. That law must be applied in whole and not in part. You cannot say that it shall
not be applied to polygamous unions so as to exclude the women and their offspring from taking the
wife's and the children's share under the Statute, but that it shall be applied so as not to include
amongst the children a person who, though adopted, is a legitimate child according to the customs of
the race to whose polygamous unions the Statute is made in other respects to apply. Next, if the rights
of the "wives", are to be determined by our law and not by the law of China, as the learned Recorder
rightly lays down, and our law as he also rightly says furnishes no rule for determining the shares of
such "wives" it was, it appears to me, an infringement of our law to arbitrarily allot an equal share to all
these "wives" in the wife's share. An allotment based on a two-fold error consisting first of an
unauthorised reference to Chinese law and next of an inaccurate appreciation of that law. This is not to
interpret and apply the Statute of Distributions but to stretch beyond its legitimate limits the perfectly
well-established interpretation which has been put upon that Statute. In that Statute, 22 & 23 Car. II, c.
10, the words used are "wife" and "children" and these words must be construed according to their
meaning in English law. "The word 'child' in an Act of Parliament always applies exclusively to a
legitimate child" (per POLLOCK C.B., in Dickinson v. N.E. Railway 12 W.R. 52); so as regards the word
"wife," which signifies the one and only legal "wife" to which a man is entitled.
In this connection the following observations by LORD PENZANCE in Hyde v. Hyde and Woodmansee
L.R. 1 P. & D. at p. 134 are apposite:-
"It may be and probably is the case that the women there "pass by some word or name which
corresponds to our word "'wife.' But there is no magic in a name and if the relation "existing there
between men and women is not the relation "which in Christendom we recognize and intend by the
words "'husband' or 'wife,' but another and altogether different "relation, the use of a common term to
express these two "separate relations will not make them one and the same, "though it may tend to
confuse them to a superficial observer."
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But it was argued that though this Court may be of opinion that the law as alleged to have been laid
down in Lao Leong An's case is wrong, yet that as it has been acted on since 1867 it is too late to
correct it now. To that argument I do not accede; nor do I concede that that case decided more than
that a "first wife" was entitled to a grant of letters of administration.
In Hamilton v. Baker, the "Sara" 14 App. Cas. 209, LORD MACNAGHTEN said: "I am sensible of the
inconvenience of disturbing a course of prac"tice which has continued unchallenged for a long time and
which "has been sanctioned by high legal authority. But if it is really "founded upon an erroneous
construction of an Act of Parliament, "there is no principle which precludes the House of Lords from
"correcting the error. To hold that the matter is not open to "review would be to give the effect of
legislation to a decision "contrary to the intention of the legislature, merely because it "had happened,
for some reason or other, to remain unchallenged "for some length of time."
In Airey v. Bower [1887] 12 App. Cas. 263 LORD HERCHELL said: "If the question "were doubtful I
should hesitate very long before I laid down a "different rule of construction in relation to sections of the
Wills "Act which have had for many years a particular construction "given to them, because it is
impossible to say how many persons "may have acted upon the faith that that construction was correct
"and vested the disposal of their property upon that belief. Of "course, if it were clear that the
construction put by the Courts "upon the sections was wrong, it would be our duty, disregarding "the
result, to express a contrary opinion."
If the construction put by the local Court upon the terms "wife" and "children" in the Statute of
Distributions has been to treat them as composite terms embracing all the women with whom an
intestate has contracted unions and all the children the offspring of those unions, I think that that was a
wrong construction and that this Court has power, and ought to correct the error.
I have no doubt that a Chinese may have only one first wife at a time, and if I were of the opinion that
the union with such first wife was a marriage according to the meaning of that term in English law, I
should hold that that woman and her offspring were the wife and children contemplated by the Statute
Distributions and entitled to the shares which are allotted to the wife and children by that Statute. But,
as I am of opinion that the first is not a wife and her offspring are not children within the contemplation
of the Statute, I come, with unfeigned regret, to the conclusion that they together with the concubines
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and their offspring have no rights of succession under the Statute. These appeal do not involve and do
not call for a decision as to whether the practice of granting letters of administration of one or more of
the so-called widows of an intestate domiciled Chinese is a correct practice. If this judgment is sound
and those who hitherto have been treated for the purpose of a grant of administration, then in the
absence of a grant to a creditor, if any, of the deceased, letters of administration may still be granted by
the Court to them as being "such person as the Court may think fit for the purpose."
The jurisdiction conferred by s. 9(6) of the Courts Ordinance 1907 to grant letters of administration
subject to such modifications to suit the several religions and customs of the native inhabitants as have
hitherto been recognized by the Courts, is a jurisdiction conferred upon the Supreme Court in its
Original Civil Jurisdiction. The Court sitting in original jurisdiction would be bound to recognize such
customs of the native population as had hitherto been recognized by the Court sitting in original
jurisdiction, but it would be competent for the Supreme Court sitting in Appellate Jurisdiction to hold that
certain religions and customs had been wrongly recognized by the Court in its original jurisdiction.
From this judgment it would result that the practice of granting letters of administration to the so-called
"widow," qua widow, of a domiciled Chinese intestate has been wrong.
As regards s. 888 of the Civil Procedure Code, the words in sub-clause (c) "such particulars of the
religion, race or "nationality of the deceased as will be sufficient to indicate "what system of distribution
is applicable to the estate" relate to such particulars as will indicate whether the system of distribution is
to be according to certain Colonial enactments or according to the Statute of Distributions. They do not
imply that every intestate's estate has a system of distribution applicable to it.
Then as regards as s. 930 of the Civil Procedure Code which relates to the proper description of
persons applying for administration, it seems to me that that section applies in cases of polygamy only
to such religions allowing polygamy as have been recognized by the legislature.
There are some English cases to which I must refer, Hyde v. Hyde and Woodmansee L.R. 1 P. & D.
130 decided that a marriage contracted in a country where polygamy is lawful between a man and a
woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom,
and that the English Matrimonial Courts will not recognize it as a valid marriage in a suit instituted by
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one of the parties against the other for the purpose of enforcing matrimonial duties or obtaining relief for
a breach of matrimonial obligations.
At the end of his Judgment-LORD PENZANCE said: "In "conformity with these views the Court must
reject the prayer "of this portion, but I may take the occasion of here observing "that this decision is
confined to that object. This Court "does not profess to decide upon the rights of succession or
"legitimacy which it might be proper to accord to the issue "of the polygamous unions, nor upon the
rights or obligations "in relation to third persons which people living under sanction of "such unions may
have created for themselves."
There remarks must be considered in connection with the circumstances of the case then before the
Judge Ordinance. It was a case of a marriage contracted in a country where polygamy was lawful, not
of a polygamous union contracted within the jurisdiction. Bearing this in mind, the dictum means no
more than that the English Matrimonial Court did nor profess to decide certain questions which might
arise out of polygamous unions which are lawful in a foreign country. Other Courts might decide such
questions. The words do not countenance the inference that the issue of a polygamous union
contracted within the jurisdiction might have rights of succession or legitimacy.
At p. 104 of Eversley's The Law of the Domestic Relations, there is note in these words: "It may,
however, be taken "that the issue of a polygamous marriage between Christians in "a non-Christian
country where it is validly cerebrated would be "held legitimate in England at any rate for succession to
"personal property" That seems to me to be the utmost extent to which the remarks of LORD
PENZANCE can be stretched.
Now this Colony is not a non-Christian country, and the whole question in the present appeals in
whether a polygamous union contracted by a natural born British subject who is a Chinese can be
treated as a marriage in this Colony. Persons can only live under the "sanction" (the word used by
LORD PENZANCE) of polygamous unions when such unions are valid by the law of the place where
they are contracted.]
The remarks of the Judge Ordinary cannot therefore be drawn in aid of the decision of the question
raised by these appeals.
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The next English a case is Re Bethell, Bethell, Hildyard That decided that whilst an English subject
retains his English domicil he cannot contract a valid marriage with the subject of a foreign country
which permits polygamy, the marriage being carried out according to the forms and ceremonies of that
country, and that the issue of such a union had not the necessary status of legitimacy to be entitled to
claim as the child of her father under his will.
Here again is a case which there was a polygamous union (but this time of a person of English domicil)
contracted outside the jurisdiction. Like Hyde's case therefore it differs essentially from the main fact in
these appeals, viz., that the polygamous unions were contracted within the jurisdiction. In argument,
the criticism was levelled at STIRLING J.'s Judgment that it did not refer to the concluding remarks in
the judgment in Hyde's case and that he could not be deemed to have considered these remarks. This
is a dangerous criticism to pass in respect of STIRLING J. as he then was. I prefer to think that he did
consider LORD PENZANCE'S dictum and that the view he took of it was the view which is expressed in
the note on page 104 of Eversley (quoted above). In that view, the dictum could have no bearing on the
case then before him.
I can find no support in anything said by LORD BROUGHAM in Warrender v. Warrender 2 Cl. & F. 531
in aid of the contention that polygamous unions contracted within the jurisdiction are to be deemed
valid marriages. He says: "If indeed there go two things "under the same name in different countries, if
that which is called "marriage is of a different nature in each, there may be some "reason for holding
that we are to consider the things to which "the parties have bound themselves according to its legal
"acceptance in the country where the obligation was contracted. "All that the Courts of our country have
to determine is whether "or not the thing called marriage-that known relation of persons, "that relation
which these Courts are acquainted with, and "know how to deal with-has been validly contracted in the
"other country when the parties proposed to bind themselves. "If the question is answered in the
affirmative, a marriage has "been had, the relation has been constituted and these Courts "will deal
with the rights of the parties under it according to "the principles of the Municipal law which they
administer."
Clearly these words relate only to a marriage valid by the law of another country where it was
contracted and do not touch the question of what unions entered into within the jurisdiction are valid
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marriages. They afford no justification for the interpretation by SIR BENSON MAXWELL in his
judgment in Regina v. Willans Leic. 83 of the words "or (in the case of a Mahomedan marriage) in an
English possession in the religion in which" immediately after the wordS "according to its legal
acceptance in the country where" which appear in LORD BROUGHAM'S speech.
The language of LORD BROUGHAM at p. 533 of Warrender v. Warrender 2 Cl. & F. 531 impliedly
negatives the propriety of that interpolation in which he said "Indeed if we are to regard the "contract in
this respect as defined by the lex loci it is difficult "to see why we may not import from Turkey into
England "a marriage of such a nature as that it is capable of being followed "by and subsisting with
another, polygamy there being of the "essence of the contract."
We cannot import into this Colony a marriage of such a nature as that it is capable of being followed by
and subsisting with another, polygamy being there of the essence of the contract.
The case of In re Goodman's Trusts 17 Ch. D. 266 has been relied on in support of the contention in
favour of the right of these six widows and their children to succession under the Statute of Distribution.
"What is the rule which the English law adopts and applies to a non-English child?"asked JAMES L.J.,
at p. 296 of the report. His answer was: "This is a question of international "comity and international
law. According to that law as "recognized, and that comity as practised in all other civilized
"communities the status of a person is legitimacy or illegitimacy "is to be determined everywhere by the
law of the country "of his origin-the law under which he was born."
In In re Andros [1883] 24 Ch. D. 637 KAY J., said: "By international law "those children are legitimate
whose legitimacy is established "by the law of the father's domicil."
The quotations which I have just cited from the ratio decidendi in both the cases mentioned. Apply that
ratio here. The status of the children of Choo Eng Choon their legitimacy or illegitimacy is to be
determined here as elsewhere by the law of the father's domicil. That domicil was originally a Colonial
one and remained such till Choo Eng Choon's death. The law of that domicil is the law of this Colony
under which the status of these children was that of illegitimacy.
[The learned Judge then proceeded to give directions as to the orders that should be made but as the
rest of the Court decided differently, these are omitted.]
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BRADDELL J., set out the facts of the case and the orders appealed from; then proceeded:-
The learned Acting Chief Justice confirmed the findings in the Registrar's certificate, and made the
declarations and adjudication which are the subject of this appeal. The questions that were raised
before the Acting Chief Justice and before this Court are these:-
(i) Is the institution of marriage as governed by Chinese law and custom polygamous?
(ii) If it is polygamous, ought the Courts of this Colony to recognize the validity of a contract for such a
matrimonial union by a Chinese natural born British subject who is domiciled in the Colony, and not a
Christian, when the union is contracted according to the formalities which would make it a valid contract
of marriage under the law of marriage in china, the union, in its essential, not being such as could be
considered a marriage according to the matrimonial law prevailing throughout Christendom namely "the
voluntary union for life of one amend and one woman "to be exclusion of all others?"
(iii) If this recognition ought to be accorded to the validity of these matrimonial unions, can our Courts
apply the provisions of the Statute of Distributions of intestate's estates in administering the estate of a
Chinaman who has contracted one or more such unions, so as to divide it under those provisions
among his widows and the children born to him by them?
With regard to the first of these questions I have had the advantage of perusing the Judgment of my
learned brother the Chief Justice on that part of the case, and as I entirely agree with the view taken by
him of the duty of the Court in its consideration of this question, namely, while paying due regard to the
evidence given by the skilled witnesses concerning the matrimonial law of China, at the same time to
endeavour to ascertain from an examination of the penal laws of China themselves whether or not
three women - t'sips-whom the skilled witnesses say are not wives but merely concubines, occupied
such a status under the sanction of these laws, as from an English, if not indeed from the Chinese
standpoint of view, would given them a superior state to that known to us under the name of
concubinage.
The learned Chief Justice has expressed very fully in his Judgment the result of this examination of
these laws, as the same have been rendered in to English in Staunton's translation, and subjected in
the articles, where the accuracy of the translation has been questioned, to a comparison with the
Chinese text with the aid of the Court interpreters.
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I entirely adopt this exposition of the Chinese law given in the Judgment of the Chief Justice and concur
with him in the conclusion at which he has arrived, namely, that concubinage is recognized as a legal
institution under Chinese law conferring upon the t'sip a legal status of a permanent nature, which
subject to divorce entitles her to maintenance during her lifetime.
I am therefore of opinion that the institution of marriage under Chinese law must be regarded as
essentially polygamous whether the t'sip be called a concubine, an inferior wife, or a secondary wife,
the applicability of these terms to the position she occupies being a matter of propriety that will present
itself in different aspects as her status is regarded through Chinese or English spectacles.
Then the next question, ought the validity of these Chinese marriages to receive recognition by the
Courts of this Colony?
The question is one of the highest importance to the Chinese who form the bulk of the population of this
Colony, a great number of whom are natural born British subjects who are descendants of settlers in
the Colony, and have been brought up in the religion, usages and customs of their parents.
For, if the marriages of their parents are not valid they can have no status of legitimacy and
consequently in the event of their parents dying intestate no right of succession to their estates and
effects.
How, then, does the law stand?
In England, the cases in which the question of the validity of a marriage contracted under marriage
laws differing from our own was considered, were cases in which the jurisdiction of the matrimonial
Court was being invoked, and it seems to me to be clear that in those cases the Court decided against
the validity of the marriage, though shown to be valid by the lex loci solely onthe ground that not being
a marriage that answered to the Christian definition that governed the jurisdiction of the Matrimonial
Court, the law administered by the Court was not adopted to such marriages; and therefore a
polygamous marriage was not such a marriage as could be regarded as valid for the purpose of
entitling the petitioner to the relief administered by the Court under the matrimonial laws of England.
The two cases to which I refer are Warrender v. Warrender 2 Cl. & F. 488 and Hyde v. Hyde and
Woodmansee L.R. 1 P. & D. 130.
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In Warrender v. Warrender the question was as to the jurisdiction of the Scotch Court to entertain a suit
to dissolve a marriage contracted in England, and it was held by the House of Lords that as the
husband's domicil was Scotch and the conjugal residence was Scotland although the law of England
regulated the ceremonials of entirely into the contract, its essential were to be regulated by the law of
Scotland where the husband was domiciled and therefore the Scotch Court had authority to dissolve
the marriage. The question therefore was one purely of the jurisdiction of the Matrimonial Court of
Scotland to dissolve a marriage contracted in England, but LORD BROUGHAM in the course of his
Judgment expressed this opinion with regard to polygamous marriages: "If, indeed, there go two "things
under one and the same name in different countries-"if that which is called marriage is of a different
nature in each 'there may be some room for holding that we are to consider the "thing to which the
parties have bound themselves according "to the legal acceptance in the country where the obligation
"was contracted. But, marriage is one and the same thing "substantially all the Christian world over. Our
whole law of "marriage assumes this, and it is important observe that we "regard it a a wholly different
thing, a different status from "Turkish or other marriages among infidel nations, because we "clearly
never should recognize the plurality of wives and "consequent validity of second marriages, standing
the first, "which second marriages the laws of these countries authorize and validate."
In the other case of Hyde v. Hyde and Woodmanseee, LORD PENZANCE expressed the same opinion
in these words: "It would be extraordinary if a marriage in its essence polygamous "should be treated
as a good marriage in this country. Different "incidents of minor importance attach to the contract of
"marriage in different countries in Christendom; the parties to "that contract agree to cohabit with each
other alone. It is "inconsistent with marriage as understood in Christendom, that "the husband should
have more than one wife."
Yet it is clear from the observations which LORD PENZANCE made at the end of his Judgment that he
did not intend to express his opinion that for all purposes polygamous marriage was beyond ther
recognition of English law but only that it could not receive recognition in a Matrimonial Court. He
distinctly confined his decision to the object of rejecting the prayer of the petition before the Matrimonial
Court saying: "This Court "does not profess to decided upon the rights of succession or "legitimacy
which it might be proper to accord to the issue "of the polygamous unions, nor upon the rights or
obligations "in relation to third persons which people living under the "sanction of such unions may
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have created for themselves. All "that is intended to be here decided is that as between each "other
they are not entitled to the remedies, the adjudication or "the relief of the Matrimonial Law of England."
And that LORD BROUGHAM also intended to express no more than this when he said: "We clearly
never should recognize the "plurality of wives and consequent validity of second marriages "standing
the fist" is equally clear from his remark "there "may be some reason for holding that we are to consider
the "thing to which the parties have bound themselves according "to the legal acceptance in the country
where the obligation was "created." His opinion evidently was there when "the thing" differed essentially
and materially from that over which jurisdiction was given to the Matrimonial Court, then clearly it could
not be recognized as coming within its jurisdiction. In Regina v. Willians 3 Ky. 16. SIR P. BENSON
MAXWELL expressed his opinion that when the law of the place is inapplicable to parties by reason of
peculariaties of religious opinions and usages, then from a sort of moral necessity,the validity for the
marriage depends on whether it was performed according to the rights of their religion and he referred
to what LORD STOWELL said in Pertreis v. Tondear This should really be Ruding v. smith 2 Hagg 384.
The reference in Reg v. Willians at p. 32 is incorrect with reference to the Jews in England "being
governed by "institutions of their own and particularly in their marriages, "for it being the practice of
mankind to consecrate their "marriages by religious ceremonies, the differences of religion, in "all
countries that admit residents professing religions essentially "different, unavoidably introduce
exceptions, in that matter, to "the universality of the rule which makes mere domicil the "constituent of
an unlimited subjection to the ordinary law of the "country. What is the law of marriage in all foreign
establishments settled in countries professing a religion essentially "different?
"Nobody can suppose that while the Mogul Empire existed "an Englishman was bound to consult the
Koran for the "celebration of his marriage. Even where no foreign connection "can be ascribed." A case
which SIR BENSON MAXWELL remarks is similar to that of the Eastern natives of this place-"A
"respect is shown to the opinions and practice of a distinct "people. The validity of a Greek marriage in
the extensive "dominions of Turkey is left to depend, I presume, upon their "own canons without any
reference to Mahomedan ceremonies. "There is a jus gentium upon this matter, a comity which treats
"with tenderness or at least with toleration the opinion and "usages of a distinct people in this
transaction of marriage."
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SIR BENSON MAXWELL after referring to the difficulty of extending to Mohomedan marriages this
principle of comity which the law of England has applied to Jewish marriages without involving it in a
recognition of polygamy which has always been put by jurists beyond the pale of the comity of Christian
nations, then refers to LORD BROUGHMAN'S opinion that in dealing with a Turkish marriage "there
may be some room "for holding that we are to consider the thing to which the "parties have bound
themselves according to its legal acceptation "in the county where or"-and this he interpretates in the
case of a Mahomedan marriage in an English possession-"in the "religion in which the obligation was
contracted," and the learned Recorder concludes his examination of this part of his subject by saying:-
"In this place where the law of England has been "for the fist time brought to bear upon races among
whom "polygamy has been established from the remotest antiquity, "the Court has had to consider the
question and has always "held polygamous marriages valid. Whether the local judicature "has erred or
not in coming to this decision I do not stop to "consider. It is enough to say that if it decided rightly it is
not "because our Charter demands an exceptionally indulgent "treatment of the question, but simply
because the principal "which makes the validity of a marriage to depend upon the "religions of the
parties, extends to polygamous marriages; "while if the Court has been wrong it has erred not in
adopting a "principle foreign to and at various with the law of England but "in stretching beyond its
legitimate limits a perfectly well "established one."
That judgment was delivered in 1858 and in 1867 SIR P. BENSON MAXWELL In the goods of Lao
Leong An 1 S.S.L.R. 1 acted in accordance with the principle extending to polygamous marriages,
following a decision of his own some years before in Penang, in which he was of opinion that a second
or inferior Chinese wife was to all intents and purposes a lawful spouse and was entitled to share with
the first or superior wife in the property of her deceased husband. He held that as the intestate was
domiciled according to the law of the Settlement the rights of his wives therefore must be determined
by our law and not that of China. While considering that letters of administration should be granted to
the fist wife in preference to the second wife, upon the question as to their relative rights inter se in
dividing the share which our law allots to the widow, SIR BENSON MAXWELL said that as our law
furnished no rule for determining in what proportions wives of higher and lower rank should share the
widow's share, he was unable to see any adequate grounds for any other division than an equal one.
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Now that judgment, so far as I know, has been acted upon in the Courts of this Colony down to the
present time and the reports of local cases cited at the Bar show that the right of the inferior wife to a
grant of letters of administration has always been recognized, and during the 27 years, that I practiced
at the Bar in Singapore I never heard of a case in which the right of the inferior wife to share equally
with the superior wife in the share alloted to the widow has been disputed.
In the goods of Ing Ah Mit 4 Ky. 380 MR. JUSTICE PELLAREAU in 1888 in granting joint administration
to both widows said: "The court recognizes both widows- their rights are the same "and administration
must be granted to both.:" In this case it was admitted by all the parties that both the applicants were
widows of the deceased. But it is said now after the lapse of all these years that the judgment In the
goods of Lao Leong An was wrong both in finding that Chinese marriages are essentially polygamous
and in recognizing their validity if they are so. I doubt whether this Court ought now to disturb the law
upon so important a subject even though it were clearly shown to be based upon a decision arrived at
upon an erroneous view of the extent to which the principle, under which our Courts can recognize
marriages contracted by persons profession religions essentially different from the Christian religion,
may be applied. But, has it been shown that the principle referred to in SIR BENSON MAXWELL'S
judgment in Regina v. Willans has been extended beyond its legitimate limits?
It seems to me that unless the case of Bethell v. Hildyrad 38 C. D. 220 can be regarded as an authority
for the proposition that an English Court of Law will not for any purpose recognize as valid a
polygamous marriages, the question must be regarded as one that has never been the subject of
judicial decision in England, in which case the most that can be said of it is that it is doubtful what the
case decision would be, should the question arise in the English Courts.
Now, in the case of Bethell v. Hildyard the question arose upon the answer of the chief clerk to an
inquiry whether Christopher Bethell was ever married and if so, when and to whom and whether he left
any children him surviving. The chief clerk found that in October 1883 C. Bethell, being then a resident
at Mafeking in Bechuanaland went through the form of marriage according to the custom of the
Baralong tribe with Teepoo a Baralong girl and had issue by her a female child who was born 20 days
after his death, that the Baralongs had not any religion nor any religious customs and that polygamy
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was allowed in that tribe, that at the time of the marriage the domicil C. Bethell was English and that
save as aforesaid he never was married.
The case, therefore, was whether a form of marriage gone through by an Englishman whose domicil
was English in a foreign country with a woman of a native tribe of that country according to the custom
of that tribe constituted a good and valid marriage notwithstanding that such a marriage was in its
essence polygamous. And it is clear when the case is examined that it involved firstly the question
whether there was an intention on the part of Bethell to contract a marriage in the sense in which it is
understood in Christendom,and it was clear on the evidence that he did not have that intention, and it
could not be inferred from the ceremony which was gone through inasmuch as he could have been
married in a church and had refused to be so married, and is there was no necessity for adopting the
Baralong form of marriage if he intended to contract a monogamous one. Therefore, the contract he
was engaging himself to could only be regarded as a marriage as understood by the Baralongs, i.e., a
polygamous marriage.
STIRLING J. after quoting the passage in LORD BROUGHAM'S judgment in Warrander v. warrender to
which I have referred above said: "That statement of the law was acted by LORD "PENZANCE in the
case of Hyde v. Hyde and Woodmansee in dealing "with the case of a Mormon marriage celebrated at
Salt City." and having regard to these authorities the learned Judge said. "I am bound to hold that a
union formed between a man and "a woman in a foreign country although it may bear the name "of a
marriage, and the parties to it may bear the name "of a marriage, and the parties to it may be there be
designated "man and wife, is not a valid marriage according to the law "of England unless it be formed
on the same basis as marriages "throughout Christendom and be in its essence 'the voluntary union for
life of one man and one woman to the exclusion of all others."
The learned Judges did not make any reference to the limitation placed upon his judgment by LORD
PENZANCE but in referring to the case of Johnson v. Johnson's Administrators 30 Missouri State
Reports 72 (an American case) and Connally v. Woolrich 11 Low. Can Jur. 197 (a Canadian case) cited
in support of the contention on behalf of the infand said that those decisions though not binding on him
were entitled to respectful consideration and in the absence of direct English authority might have
exercised a weighty influence upon his decision.
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STIRLING J. therefore regarded Hyde v. Hyde as a direct English authority on the question before him.
With the greatest respect for the learned Judge's view of the force of that judgment I am unable to
regard it as deciding anything more than that a polygamous marriage is not such a marriage as an
English Matrimonial Court will recognize as coming within its jurisdiction, even though it be lawful in the
country where it was contracted, and I am fortified in this view by the statement made on p. 216 of
Dicey's Conflict of Laws (2nd edition). The learned author there says: "Rule 48" (relating to the
jurisdiction of the Court in respect of divorce) "has no application to connections which, "though called
marriages, either are not intended to be for "life or are made with a view to polygamy. To what extent
"the law of England will recognize rites, e.g., of inheritance "depending upon the institutions of
polygamy is doubtful; but it "is clear that the rule in question does not apply to polygamous "marriages."
It therefore seems to me that the judgment of STIRLING J. ought not to be accorded the same weight
as it would have deserved had the question of the legitimacy of the infant not been decided upon the
view that it was governed by the decision in Hyde v. Hyde.
The case of Bethell v. Hildyard, therefore, in my opinion cannot be accepted by this Court as decisive
that the Courts in England would not think it proper to accord to the issue of polygamous unions rights
of legitimacy, but even assuming that these Courts would so decide that question in the case of the
issue of a polygamous marriage contracted by a domiciled Englishman, would the same reasoning
upon which they might feel constrained to regard such a marriage as invalid, apply to a union between
a man and woman by whose religion marriage in its essence is polygamous?
Take the case of a Mahomedan, a natural born British subject ding domiciled in England possessed of
personal property in England and leaving issue born of polygamous marriages. Upon what principle
would it be right for our Courts to refuse to recognize the issue as legitimate? I can see none unless it
is that polygamy has always been put by jurists beyond the pale of the Comity of Nations.
But however the matter might be regarded with respect to rights of succession to property in England
by the issue of polygamous marriages, the question is, ought the Courts of this Colony to refuse all
countenance to polygamous marriages when contracted by persons who belong to races which are
governed with regard to marriage by their own institutions and which admit of polygamy. It is true that
SIR BENSON MAXWELL expressed the opinion that if the local judicature had decided rightly, it was
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not because the Charter demanded an exceptionally indulgent treatment of the question but because
the principle it had adopted was in agreement with the law of England, the only question open to doubt
being whether the principle had not been stretched beyond its legitimate limits.
Now it may be perfectly true to say that the Charter does no more than adopt a principle in agreement
with the law of England, but it does nevertheless expressly declare that the Court of Judicature shall
have and exercise jurisdiction as an Ecclesiastical Court so far as the several religions and customs of
the inhabitants of the Settlements and places will admit.
I am unable to regard this declaration in the light of being surplusage and intended to effect nothing
more than if it simply declared in general terms that the Court of Judicature should have and exercise
jurisdiction as an Ecclesiastical Court according to the law of England without more.
The qualifying words seem to me to have been inserted because it was recognized that the law of
England would necessarily require to be administered with such modifications as to make them suitable
to the religions and customs of the inhabitants who were intended to be benefited by them. They were
dictated from a regard for that constant policy of our rulers to administer our laws in our Colonies with a
tender solicitude for the religious beliefs and established customs of the races living under the
protection of our Flag, and I regard them as such as a charge to our Courts to exercise its jurisdiction
with all due regard to the several religions, manners and customs of the inhabitants. Among the powers
given by the Charter to the Court in the exercise of its ecclesiastical jurisdiction, is the power to commit
letters of administration of the goods and effects of all or any of the inhabitants of the Settlements of the
Colony dying within the Settlement, and of all other persons who shall die and leave personal effects
within the Settlement intestate, and the Court is required to commit such letters to any one or more of
the lawful next-of-kin of such persons being then resident within the jurisdiction. In the case then when
the Court is asked to exercise this power in favour of the next-of-kin of an intestate who contracted a
polygamous marriage according to the religious ceremonies of the parties, and has left two widows and
issue by them, is the Court to say to them and their children, you are not the lawful widows and next-of-
kin of the deceased because English law does not recognize the the validity of polygamous marriages,
with the result that the property of the deceased escheats to the Crown? It seems to me that to say this
would be to ignore the express direction in the clause conferring the jurisdiction which requires it to be
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exercised "so far as the several religions, etc., will admit." The institution of marriage among the
Chinese makes it lawful for the husband to cohabit with an inferior wife and beget children by her who
are lawful children under the law governing the institution. That being so, may not the words in the
Charter be regarded as authorising the Court to extend the principle which makes the validity of a
marriage to depend upon the religions of the parties to polygamous marriages, in cases where such
marriages may be lawfully contracted according to the religions of the parties to them? I am opinion
that they may, and that our Courts have done right in applying the principle to Chinese marriages, and
admitting the right of the inferior wife to have letters of administration committed to her, and in giving
her children the status of legitimacy.
Further it appears to me that the legislature has placed the seal of its approval upon this recognition of
rights arising from polygamous unions. By the 14th section of the Courts Ordinance 1878 "the same
powers to grant probate and letters of administration to the estates of all persons leaving moveable and
immoveable property in the Colony as are vested in Her Majesty's "High Court of Justice in England"
are granted subject to such modifications to suit the several religions and customs of the native
inhabitants, as have hitherto been recognized by the Court.
In the Courts Ordinance 1907 the jurisdiction is confined by section 9 (6) and is made subject to the
same modifications or to those that "have been or shall hereafter be made by law "and to alter or
revoke such grants," these additional words being inserted no doubt with reference to the provisions of
the Mahomedan Marriage Ordinance which was passed in 1880, and enacts how far Mahomedan law
is to be recognized, and expressly confers on the widow or widows the right to the share in an
intestate's estate which by English law a widow is entitled to. Having regard to this Ordinance, which
defines the modifications of the law of property to be recognized in the case of Mahomedan marriages,
and the absence of any similar written law with regard to Chinese marriages, it was argued that the
Legislature must have thought it necessary to pass this Ordinance to clear the doubt existing as to the
validity of the prior decisions of the Court, and that as it had thought fit to do this only in the case of
Mahomedan marriages, it must be taken to have thus approved of the decisions of the Court in the
case of Chinese marriages.
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It does not seem to me that the Mahomedan Marriage Ordinance was passed for the purpose of
removing any doubt as to the validity of the decisions of the Court, for if that was the object of the
Ordinance I should expect to find this stated in its preamble.
It rather seems to me to have been intended to define how much of the Mahomedan law is to be
recognized by the Courts of the Colony, so as to be a Code of that law for the guidance of the Courts. If
by the passing of the Ordinance and the absence of any similar Ordinance with respect to Chinese
marriages it is to be inferred that the legislature had only approved of what the Courts had done in the
case of Mahomedan marriages, it would hardly have reserved in the Courts Ordinance of 1907 the
words "subject to such modifications, etc., as have hitherto been recognized by the Court." It is also to
be observed that in Chapter XLIII of the Civil procedure Code 1907 which regulates the practice in
granting probates and letters of administration, s. 888(c) requires the petition to state, if the deceased
died intestate, such particulars of the religion race or nationality of the deceased as will be sufficient to
indicate what system of distribution is applicable to the estate. And again in s. 930 it is provided that
persons applying for administration are to be described in the petition in a particular manner-in the case
of a widow as "a lawful widow" or if the deceased was of a religion allowing polygamy as "the only
lawful widow" or "one of the lawful widows," as the case may be.
In this section then the legislature has made provision for the preparation of petitions by the widow of a
deceased "who was of a religion allowing polygamy." These words will include any religion and are not
in my opinion intended to apply only to the Mahomedan religion. The basis of the Chinese religion is
ancestral worship, and their marriage laws appear to me to be directed to creating a line of male issue
to perform this worship, the justification in a moral sense for a man taking a secondary wife while his
first wife is living being the obligation which his faith casts upon him of securing the performance after
his death of the worship of his ancestors, and therefore polygamy may be said to be an element in the
religion of the Chinese.
For these reasons I am of opinion that the learned Acting Chief Justice was right in declaring that the
defendants Neo Chan Neo, Mah Imm Neo and Cheng Cheng Kim were lawful widows of the deceased.
The next question is, was he right in declaring that they were entitled to share equally with the
defendant Tan Seok Yang the principal wife of the deceased in the share which by English law a widow
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is entitled to under the Statute of Distribution of Intestate Estates. It is said that the Statute of
Distributions is inapplicable to the distribution of the estate of a deceased person who was of a religion
allowing polygamy, as the Statute provides for one widow only, and that it is not in the power of the
Court to direct the share given to the widow to be divided among several widows, for to do this would
be to alter the Statute.
I agree that if, in order to make the rules of distribution under the Statute applicable to such a case, it
were necessary to alter the scheme of distribution provided for by the Statute, the Court, would not be
justified in doing that. But the Court is not asked, as it seems to me, to interfere with or alter the
scheme of distribution itself, but merely to declare that in applying that scheme to the estate of a
Chinese intestate who has left more than one widow it is right and equitable that the share which falls
to the widow under the scheme shall be divided equally between his widows.
The principle of distribution provided for by the Statute is equality of division, having regard to the
degree of kinship of the persons to be benefitted by it, the object of the Legislature being to provide a
will for a person who has neglected to make one for himself and to provide for an equitable distribution
of his estate.
It seems to me that our Courts have done no more than to adopt that principle and object in directing, in
a case when the deceased has left more than one widow whom the Court ought to recognize as lawful
widows, that they shall take equally between them the share which under the Statute is allotted to the
widow. That is not in my opinion to alter the Statute but merely to bring in aid of the Statute the
equitable jurisdiction of the Court in declaring how that share ought to be divided, having regard to the
rights of the persons claiming as widows of the intestate.
In In re Goodman's Trusts L.R. 17 C.D. 267 it was held that a child born before marriage of parents
who were at her birth domiciled in Holland, but legitimated according to the law of Holland by the
subsequent marriage of her parents, was entitled to a share in the personal estate of an intestate dying
domiciled in England as one of her next-of-kin. With regard to the application of the Statute of
Distributions JAMES L.J. said: "It must be borne "in mind that the Statute of Distributions is not a
Statute for "Englishmen only, but for all persons whether English or not "dying intestate and domiciled
in England, and not for any "Englishman dying domiciled abroad."
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"And it was to provide for what was thought an equitable "distribution of the assets, as to which a man
had, through "inadvertence, not expressed his testamentary intentions. And "as the law applies
universally to all persons of all countries "race and religions whatever, the proper law to be applied in
"determining kindred is the universal law, the international law adopted by a Comity of States. The child
of a man would "be his child so ascertained and so determined, and in the next "degree the lawful child
of his brothers or sister would be his "nephew or niece."
Now if the child of a man is to be so ascertained, so too must the wife be ascertained, and if it be found
that there are more persons than one who stand in the relationship of wife to the deceased, is it to be
said that the Statute cannot govern the distribution merely because it may be said that the provision
made by the Statute was made with regard to the relict and next-of-kin of an intestate who contracts a
monogamous marriage.
It seems to me that if the law applies universally to persons of all countries, races, and religions
whatsoever, then, a case where the religion of an intestate allowed of his contracting a polygamous
marriage which the Court ought to recognize, the Court ought to admit the widows to share in the share
provided for the wife, and in the absence of any rule in our law for determining in what proportion wives
of higher or lower rank shall share the widow's share, the Court should be guided by the equitable
principle underlying the Statute, and decree an equal division. For these reasons I am of opinion that
the Judgment of the Court below was right and that this appeal should be dismissed.
For the same reasons as I have given for my Judgment in this appeal, I am of opinion that the appeal
by Choo Ang Chee from the judgment of the 17th October should be dismissed.
With regard to the cross appeal by Cheang Cheng Kim from that part of the same judgment which
excludes her son Choo Ah Chee from participation in the children's two-thirds shares on the ground of
his having been born before her marriage to the deceased, I am of opinion that the appeal should be
allowed by varying the judgment in so far as it declares that Choo Ah Chee is not entitled to any share
in the estate of Choo Eng Choon deceased, nor to have any sum monthly or otherwise allowed to him
from the estate of the deceased for his maintenance or education for any period whatsoever, and by
including the name of Choo Ah Chee among the names of the children who are thereby declared to be
entitled to share equally between them the children's two-thirds shares.
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My reasons for holding this opinion are briefly these. The question of whether this child should be
admitted to share with the other children of the deceased seems to me to be one that must be
determined with regard to the validity of the union of his parents and the rights and obligations
governing that union under the institution of marriage, according to the religion and usages of the
Chinese with reference to which alone the parties to the union must be deemed to have contracted.
I have already given my reasons for holding the union to be one which our Courts ought to recognize,
and holding this, it seems to me to follow that all rights and obligations which attach to that union must
equally receive recognition.
One of these rights is the right of inheritance equally with the children born during the union which is
conferred upon an ante-natus child.
It is clear from the Notes on the Family Life and Usages, and the Criminal Code of the Chinese of Mr.
Hare that this right does arise on the subsequent marriage of the parents and I can see no good reason
for depriving this child Choo Ah Chee of the benefit of it.
Appeals of Tan Seok Yang and Choo Ang Chee dismissed, appeal of Cheang Cheng Kim allowed;
costs to be paid out of the estate.
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