illicit when the offspring of it are legitimate? To declare the union of a Chinese with his t'sip as being outside the pale of the law of the Colony would be to bastardise a large proportion of Chinese born in the Colony, and to deprive of all rights numbers of women, most of whom have devoted years of their lives to the men with whom they lived.
Taking all the facts concerning the position of the t'sip into consideration Sir Benson Maxwell's view that they were lawful wives was upheld on reasoning similar to his. Sir William Hyndman-Jones summed the position up thus:—
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 recognised as a legal institution, then concubinage ceases to be that which Western nations are accustomed to understand by that name and becomes polygamy."
The argument that polygamy imports equality amongst the wives was quite unsupported by authority and over-ruled. Indeed there was a clear English authority against it, the strange case of Christopher Bethell which may be considered with regard to this argument as well as with regard to the second main argument of the appellants namely that if the Chinese are polygamous then, as English Courts cannot recognise polygamy for any purposes, the Courts of this Colony cannot recognise their union at all.
In dealing with Regina vs Willaus it was pointed out that up to the date of that case, 1858, all jurists put polygamy outside the pale of Christian nations. It is now necessary to see how the law in England had dealt with the matter between 1858 and the time. when the Six Widows' Case was being argued.
It is obvious that in England a marriage might come before a matrimonial Court or might come before a Court which had merely to decide on rights arising out of the marriage. The English matrimonial Courts are purely Christian Courts and their machinery and weapons are only intended for use in dealing with monogamous unions: it is obvious that they would withdraw from any consideration of a polygamous union as between the parties to it. Whether the rest of the English Courts would refuse to adjudicate in any circumstances upon the rights of the issue of a polygamous union is another matter and as yet unsettled.
In 1866, in the case of Hyde y Hyde and Woodmansee, already referred to, a Mormon husband filed a petition for dissolution of his marriage on the ground of adultery. Lord Penzance said that it was obvious that the matrimonial law of England was adapted to the Christian marriage and wholly inapplicable to polygamy. In rejecting the prayer of the petition on this ground he was careful to add at the end of bis judgment these words "this Court does not profess to decide upon the rights of succession or
