Page:Journal of the Straits Branch of the Royal Asiatic Society. (IA journalofstraits8386roya).pdf/193

 Chinese Marriages, as regarded by the Supreme Court of the Straits Settlements.

When Penang and Singapore were first settled by the English, they were for all practical purposes uninhabited islands or at all events they were without settled institutions, as our Courts here and the Privy Council in England have held. In either view the Colonists brought with them as part of their baggage the Common Law of England, which is the birth-right of every subject and is portable property. But they carried with them only so much of the English law as was applicable to their own situation and to the conditions and wants of the inhabitants of the new Settlements. Furthermore in applying such law as was so applicable the Courts had to modify it to suit the above circumstances.

A part of the Common Law so imported into the new Settlements was the Statute of Distributions which regulates the distribution of the estate of an intestate amongst his next of kin and it is in connection with the application of this Statute to the Chinese race that the Courts in their reported decisions have considered the Chinese institution of marriage.

This Statute (22 and 23 Car: 2. c. 10) was passed by a Christian legislature for a Christian people and doubtless without any thought of its ever being applied to non-Christian peoples but from the time that the English became a colonizing race and the principles of the Common Law as applying to our new territories became settled our Courts and lawyers held that the English laws of inheritance were part of the general law applicable to the new plantations as to which Blackstone is clear. The Statute of Distributions had, therefore, to be applied by the Judges in Penang and Singapore to the non-Christian and polygamous races in the Settlements over which their jurisdiction extended.

Now, the Statute contemplated marriage only in its Christian sense, that is to say, "the voluntary union for life of one man and one woman to the exclusion of all others", to use Lord Penzance's. classic definition in Hyde v Hyde and Woodmansee, L. R. 1 P. & D. 133. Further polygamy had always been considered by the jurists as outside the pale of Christian Courts and international comity, as to which more will be said later. How then were the Courts of the Colony to apply this Statute based on monogamy to a state of polygamy?