156 
CHINESE MARRIAGES. 
Sir Benson, then, justified the recognition of polygamy in the 
Colony on the grounds of international comity and how bold and 
vigorous a decision that was will be seen when the state of legal 
opinion in England at the time (1858) is examined. Great writers 
on international law such as Kent, Burge and Story, put poly- 
gamy outside the pale of the comity of Christian nations without 
qualification, as did all the recorded decisions of the English Courts 
up to that time. 
In 1861 Sir Benson Maxwell had an interesting Chinese case 
before him in Penang, the case of Nonia Cheah Yew vs. Othrnan- 
saw Merican and anor, 1 Ivy. 160, in which he held that a Chinese 
female in this Colony is at liberty to marry, after being divorced 
from her former husband, notwithstanding that no guardian was 
present at such second marriage, the law of China to the contrary 
not being applicable to this Colony. 
In Sir Benson’s judgment he holds that by the law of China 
to render a second union a marriage there must be a person to give 
the woman away to the new husband and a delivery of marriage 
presents ; otherwise it was considered simply as a case of con- 
cubinage. 
“ If this rule were in force here,. it was plain that the marriage 
set up could not be sustained, for the plaintiff admitted that 
neither her uncle, the head of the family, nor any one else, gave 
her away. But the rule could not be held essential here under 
English law, where a very different degree of liberty and respect 
was accorded to women than in China or other parts of the East. 
In China a woman appeared to be, as in India, in a state of per- 
petual tutelage, and to be either under a general incapacity to 
contract, or to have no right to dispose of her person as she pleased. 
The necessity of giving away was not so much a part of the cere- 
mony, as a consequence of the general law relating to the status of 
a woman. But here this must be determined by the English and 
not by the Chinese law.” 
The Recorder went on further to find that as a matter of 
fact no second ceremony of marriage took place at all, apart from 
the question of its legality. 
The first part of the decision involved Sir Benson in a strange 
departure from the principle of comity which he had laid down in 
Regina vs. Willans. If the marriage was bad according to Chinese 
law, how could it have been valid according to the English Com- 
mon Law? 
Chinese law and custom, however, are rejected by the Court 
and an artificial creation substituted. 
The above is the only recorded case in which the question of 
divorce amongst the Chinese lias arisen. In it the judgment shows 
that a divorce paper was produced in evidence but how, or even 
if, the divorce was proved to have been valid according to Chinese- 
law the report is quite silent. 
Jour. Straits Branch. 
