Page:Journal of the Straits Branch of the Royal Asiatic Society. (IA journalofstraits8386roya).pdf/205

 "China is a land of general inversion according to Western ideas. In the West legitimacy of offspring depends on the lawful character of the union from which they come.

"Conversely, the offspring of the t'sip being recognised as legitimate, the union from which they come must be regarded as lawful.

"English law again does not recognise any intermediate system between monogamy and polygamy and I cannot see how it is open to us to attribute to the t'sip any status than that of a polygamous wife."

It will be seen, then, that English law has been mated by our Judges to Chinese law and from the union a half-caste offspring has resulted. It is no fault of the Judges: they have had the almost impossible task of welding Eastern ideas into Western law. What they have done has resulted in very fair justice and those who readily clamour for legislation on the subject of Chinese marriages would do well to remember that several of the best lawyers we have had here have tried their hands on the subject and dropped it. The plain unvarnished fact that governs the whole matter is that the views of the Chinese of this Colony are so very divergent that legislation is practically impossible.

In the Federated Malay States Chinese custom is alone observed but, then, the common law of England does not run there, as it does here.

In conclusion it may be observed that the Manchu Code (Ta Ching Lu Li), the most comprehensive source for Western students of Chinese Law, was promulgated in 1617 by the Chinese Justinian, the Emperor Shum Chi. It consists of the Lu, corresponding to the first three parts of Justinian's Pandects, and the Li, answering to that Emperor's Novellae. It was to the Lu, as translated by Sir George Staunton and published in London in 1810, that our Courts have gone chiefly for their information. Staunton was, as is well known, an attaché of the first British diplomatic mission to China in 1793. Practically no epitome of Chinese law has appeared since his work.

Lastly it must be remembered always that in the Chinese mind law (lu li) and general custom (kuei chu) are mixed up and cannot be separated. Chinese family law, in particular, is not purely a matter of law but includes a large number of general usages.

The difficulties which our Courts have had to overcome cannot be understated and the writer can speak with very personal feeling as to the difficulty in arriving at the precise Chinese law on any subject that presents itself to any one who can neither read nor speak the Chinese language.