Chinese marriages, as regarded by the Supreme Court of the Straits Settlements
Roland St. John Braddell, a Penang barrister who appeared as counsel for the secondary-wife claimants in several of the cases discussed, published this article in the Journal of the Straits Branch of the Royal Asiatic Society in 1921. It traces roughly a century of Supreme Court jurisprudence in the Straits Settlements on the problem of applying English intestacy statutes—drafted on the assumption of monogamy and English-style legitimacy—to the estates of Chinese decedents who maintained principal wives (t’sai) and secondary wives (t’sip). Braddell’s overarching thesis is that the Court has produced a hybrid legal framework, neither purely English nor purely Chinese, which recognises t’sip as lawful spouses entitled to equal shares of an intestate’s estate, and that this judicial creation, however imperfect, achieves a degree of justice that legislation could not replicate.
Summary
The fundamental legal dilemma Braddell identifies is one of structural incompatibility. The English Statute of Distributions speaks of “one wife” and of “children” in the English sense of legitimate offspring to the exclusion of bastards and adopted children. Chinese law, by contrast, recognises a hierarchical polygamous family in which the t’sip occupies a defined legal position inferior to the t’sai but far removed from mere concubinage, and in which the children of a t’sip are legitimate and inherit alongside those of the t’sai. The Charters of Justice (1807, 1826, 1855) directed the Courts to have regard to the religions, manners, and customs of the inhabitants, but did not specify how far that regard extended. The early Recorders—Sir William Norris, Sir Benjamin Malkin, and above all Sir Benson Maxwell—were forced to construct a doctrinal basis for recognising polygamous unions from first principles, and their reasoning shifted over time from the Charter to international comity and back again.
The pivotal moment in this evolution was the Six Widows’ Case (1905–1909), arising from the estate of Choo Eng Choon, a wealthy British-born Chinese subject domiciled in the Colony. Six women claimed to be his lawful widows; the son of his first t’sai and a second t’sai mounted a determined attack on the settled law, arguing that the Chinese were not truly polygamous and that English courts could not recognise polygamy for any purpose. The appellants called a formidable array of Chinese consular officials as expert witnesses. The Court of Appeal (Sir William Hyndman-Jones and Sir Thomas Braddell) overruled the attack, but on a different doctrinal ground from Sir Benson Maxwell’s: rather than international comity, they anchored their decision in the Charter of 1855. The Court also added a new principle—that a child legitimised per subsequens matrimonium under Chinese law is legitimate and entitled to share in the children’s two-thirds under the Statute of Distributions, following the English precedent of In re Goodman’s Trusts.
Braddell draws heavily on the reported judgments themselves, on Sir George Staunton’s 1810 translation of the Manchu Code (Ta Ching Lu Li), and on the Charters of Justice. He also reproduces at length a passage from Mr. Justice Ebden’s judgment in Ngai Lau Shia v. Low Chee Neo, which provides the most systematic English-language exposition of the t’sai/t’sip distinction under Chinese law. The article is thus both a legal history and a practitioner’s defence of the judicial approach he had personally advocated in the courts.
Key Findings
- In 1858, Sir Benson Maxwell in Regina v. Willans held that polygamous marriages celebrated in the Colony were valid on the ground of international comity—a bold position given that all major English jurists (Kent, Burge, Story) and all recorded English decisions up to that date had placed polygamy outside the pale of Christian comity (pp. 4–5).
- In 1867, in In the goods of Lao Leong An, Sir Benson Maxwell held that a t’sip was a lawful spouse entitled to an equal share of the intestate’s estate with the t’sai, a decision that remained unchallenged for forty years (p. 6).
- The Six Widows’ Case (Choo Eng Choon estate) occupied 106 pages in Volume XII of the Straits Settlements Law Reports and lasted from October 1905 to June 1909; the Court of Appeal upheld the recognition of t’sip as lawful wives but grounded its authority in the Charter of 1855 rather than in comity (pp. 7–11).
- The Court held in the Six Widows’ Case that a child legitimised per subsequens matrimonium under Chinese law is legitimate and entitled to share in the children’s two-thirds under the Statute of Distributions, following In re Goodman’s Trusts (L.R. 17 Ch. Div. 267) (p. 11).
- In 1920, the Privy Council (Ngai Lau Shia v. Low Chee Neo; Cheang Thye Phin v. Tan Ah Loy, 1920 A.C. 369) held that no proof of a ceremony is essential to establish t’sip status, which may be presumed from cohabitation and repute (p. 11).
- The Manchu Code (Ta Ching Lu Li), promulgated in 1647 by the Emperor Shunzhi, was the principal source of Chinese law before the Courts; Sir George Staunton’s English translation was published in London in 1810, and practically no epitome of Chinese law had appeared since (p. 14).
Conclusion
Braddell’s definitive historical takeaway is that the Court has welded Eastern ideas into Western law to produce what he calls “a half-caste offspring,” and that this judicial creation has resulted in “very fair justice.” He argues that legislation on the subject is practically impossible because the views of the Chinese community in the Colony are so divergent, and that several of the Colony’s best lawyers have attempted and abandoned the task. The difficulty, he stresses, is compounded by the fact that in the Chinese mind law (lu li) and general custom (kuei chu) are inseparable, making it nearly impossible for a non-Chinese-speaking judge to isolate the precise legal rule applicable to any given question.
Context
- Braddell was not a detached observer: he appeared as counsel for the t’sip claimants in the Six Widows’ Case, in Ngai Lau Shia v. Low Chee Neo, and in Cheang Thye Phin v. Tan Ah Loy (both locally and in the Privy Council), and the article reads in part as a practitioner’s vindication of the positions he had advanced at the bar (pp. 7, 11).
- The primary sources are the reported decisions of the Supreme Court of the Straits Settlements, the Charters of Justice (1807, 1826, 1855), and Staunton’s 1810 translation of the Manchu Code; the article makes no use of Chinese-language primary sources, a limitation Braddell himself acknowledges (p. 14).