001-NLR-NLR-V-08-KARONCHIHAMY-v.-ANGOHAMY.pdf

The non-introduction of this law in Ceylon, and particularlyamong the low-country Sinhalese, was faintly suggested inargument; but I regret to have to refer to the .subject at somelength, because the view of my brothers Middleton and De Sampayodiffers from that taken by this Court in 1897, and I am notprepared to say that the latter is wrong.
Yoet introduces the subject by saying that Papinian (the mostcelebrated of Roman jurists) held that no marriage could take place“ inter adadterum et adulteram; ” but he adds that such marriageshad been conup-robatce (confirmed) by the Canon Raw, so long asthere had been, during the lifetime of an innocent spouse, nofides matrimonii contrahendi between the adulterous persons;and those persons had done nothing towards compassing the deathof innocent spouses.
This opinion, he says, recommended itself to certain juris-consults and theologians who were not attached to the religonof Rome; it was followed by Carpzovius, and was not disapprovedof by Dutch practitioners. He cites Paulus Voet, Groenewegen.and the Responsa of the Dutch jurisconsults. • Groenewegen(Codex IX., 9, 27, 3) says: Porro ex hac lege colUgitur quodjure civtli cuiquam lie eat uxorem ducere earn quam antea peradulterium polluit. Et hoc jure nostrates et Galli utuntur:referring to authorities in support of his view, and also to theauthority of the canons and theologians. To most of thoseauthorities I have no means of referring. But Voet says that thePlacaat of the States of Holland of 1674 was adopted in spite ofthe opinion he cites. The opinion was disputed. The Placaatis of itself a proof that the law decreed by it represented thestronger party; and Voet adds that the same law had been decreedby th5 Edict of the States-General of the 18th March. 1656, andthe Placaat of the States of Zeeland dated the 18th March, 1666.He refers also to his own grandfather.
Holland was the second Province of the United Netherlands.The Provinces were united in 1579 by the Union of Utrecht;’theDutch East India Company was established in 1602; but Ceylonwas «mot wrested from the Portuguese until 1656, the year inwhich the States-General issued the Edict mentioned by Voet.
1904.
October 18.
Monobeiit,
A.C.J.
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1004. Now the Banian-Dutch Law in force in Ceylon was the law • ofOctober 18. the Netherlands. History shows that on many subjects theMonoreut, Provinces were, in spite of the Union of 1579, anything butA.C.J. united. There were rival opinions as to the Common Law on'this question—the intermarriage of persons who have livedin adultery. The Placaat of 1674, following the Edict of theStates-General and the Placaat of Zeeland, settled that question;and thus we have a declaration of the Roman-Dutch Common Lawas we find it in Van Leeuwen, Voet, and Van der Linden. But,if I understand the objection, we are to consider the question asit stood before it was settled in Holland, and to accept as ourCommon Law a view which was expressly rejected by Holland in1674 as not being the Roman-Dutch Law.
In any case, however, it is obvious that proof of jides matri-monii contrahendi must be drawn from the acts of the parties.That consideration was one of the motives of the Placaat of 1674.But, applying to this case the law which Voet says was at onetime favoured by sundry practitioners, jurisconsults, and theolo-gians, I should say that the marriage between Sinno Appu andAngohamy was prohibited even by that law, because, the partieshaving lived together for years and registered their marriage afew months after the death of Sinno Appu’s wife, there was fidesmatrimonii contrahendi during the period of adultery.
Van der Linden (Juta, 3rd Edition, 1897, pp. 19, 30, 58), writing in1806, says of marriage between those who have previously livedin adultery with each other: “ Such marriages are not only voidbut are also criminal, nor are they allowed by dispensation ”.
The Roman-Dutch Law followed the Canon Law and made nodistinction in favour of an adulterous connection between amarried man and an unmarried woman. See Van Leeuwen (Kotze),Vol. II., 305. Voet, quoting among other authorities the PoliticalOrdinance of 1580, says: Goeterum uti jure divino atque Canonico,ita et moribus hodiernis, ligati cum solutd ceque ac soluti cumligatd adulterium est (Pand. XLVIII. 5, 7).
Van Leeuwen (Kotze, I, 51), writing in 1678, explains that thereason why children procreated in adultery could not be legiti-matized was that “ according to the Ecclesiastical Law there can beno marriage with the woman with whom we have formerly livedin adultery; and no favour of legitimation is conceded by theGovernment to those who were begotten in such disgrace.” Herefers to the Emperor’s Edict of 1541 (20th October) and to theOrdinance of 1544 (19th May), Act. 28. He deals further atpages 337 and 425 with the incapacity of adulterine childrdfi toinherit.
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Such being the Roman-Dutch Law on this subject, ,1 think it wasprimd facie part of the law administered in this Island under theGovernment of the United Provinces. The first paragraph of theProclamation of 23rd September, 1799, relates to the “ administra-tion of justice and police in the settlements of the Island ofCeylon, now in His Majesty’s Dominion, and in the territories, anddependencies thereof.” And the second paragraph declares thatsuch administration " in the said settlements and territories in theIsland of Ceylon, with their dependencies, shall be henceforthand during His Majesty’s pleasure exercised by all Courts ofJudicature, civil and criminal, magistrates, and ministerial officers,according to the laws and institutions that subsisted under theancidht Government of the United Provinces,” subject to devia-tions and alterations specified in the paragraph.
The suggestion of non-introduction seems to be made becauseour archives do not show a formal adoption of the Placaat of 1674.Unfortunately nobody seems to know what has become of ourrecords, and the materials left are of the vaguest. The fact thatthe Batavian Statutes were operative in Ceylon does not showwhat the Roman-Dutch Law in force in Ceylon was; they certainlydid not embody the whole of the Roman-Dutch Law administeredin Ceylon. The same may be said of the Political Ordinance ofHolland of 1580. Sir Hardinge Giffard, Chief Justice, said in5,629 and 9,790, D. C., Galle (reported in Yanderstraaten’s Re-ports, Appendix, xxvi, 1822), that he wished ” he had been ableto discover the mode of adoption of the Statutes of Batavia as thelaw of Ceylon, or the nature of the authority of the Council ofBatavia in legislating for this Island, but on his directing theKeeper of the Dutch Records to search the Secretary’s Office forinformation on this subject, he reported that the clerks of theoffice informed him that the like inquiry had been made by hispredecessor Sir Alexander Johnston, but without success. Theendeavours to discover from the records of the inferior Courts orthe. recollection of the practitioners what the prevailing law wason the point (a question of succession) have been equally unsuc-cessful. ”
As for the Political Ordinance of 1580, no less than three datesare given for its introduction in Ceylon—1594, 1661, and 1758 ;but I have no reason to think that it was not operative in Ceylonfor what it was worth from the settlement of the Island by theDutch. I think there was no formal introduction in 1594 or 1661.In pursuance of a resolution of the Council of Ceylon* of 20thDecember, 1758 (see Yanderstraaten’s Reports, Appendix, p. 1), itwas issued to the Courts for their “ guidance and due observation,”
1004.
October IS.
Monobbief,
A.C.J.
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1904.
October 18.
Monobbiff,
A.'G.J.
together with other papers which were not all consistent. Thisstep was taken because there had been in Ceylon, as hi Holland,two rival systems of succession, and the Colony desired a settle-ment; that is to say, Ceylon had been making use of both systemswithout, so far as -I know, any special adoption of Ordinance,Proclamation, or Placaat on which they depended. In order toput the matter shortly. I would refer to the Address to the Court ofJustice of the Port by some of its members on 31st March, 1773(see Vandentraaten’s Reports, Appendix, p. xxvii). A perusalwill show how little is to be gathered from reference to the Bata-vian Statutes and the Political Ordinance of 1580. In particularit would appear from the passages printed at page xxx (1) thatthe resolution of 1758, which is said to have introduced the LettersPatent of the East India Company of 1661, and the PoliticalOrdinance of 1580, ignored the Statutes of Batavia; (2) that theColombo Court in 1773 acted upon the Statutes of Batavia in spiteof the resolution of 1758. The question was judicially consideredagain in 1822 and 1871, and settled by Ordinance in 1876.
I cannot find any proof that the law of the Placaat of 1674 wasnot in force here, and I should be disposed to infer, from the factthat down to 1897 the point in question was (apparently) neverraised, that the law of the Placaat was presumed to apply inCeylon. If marriages of the kind in question were put forward aslegal, surely some cases could be adduced. If there were nond, ifthis law has never been challenged, the respondents cannot be ex-pected to prove that the law was enforced. There is nothing toshow that there ever was such a case.
I think it has been generally accepted that the Common Law ofCeylon is the Roman-Dutch Law as it prevailed in the Netherlandsat the date of the Capitulation (1796). No doubt of this Jtesuggested in the judgments of Bonsor, C.J., and Withers, J., inthis case (2 N. L. R. 276). The same may be said of many otherjudgments of this Court.
The 2nd volume of Mr. Pereira’s Laws of Ceylon, published in1904, begins thus:“ The Common Law of Ceylon is the Roman-
Dutch Law as it obtained in the Netherlands about the com-mencement of the last century.” In Volume I. (at page 2), I findthe following passage: “ a system of laws which continued to bein /orce in the Maritime Provinces since the capitulation is, as isshown below, what is now known as the Roman-Dutch Law;but. as to this law, it must be noted that legislation in Hollandsince the .Capitulation could not be taken as having extended toCeylon.”
There is ho higher authority on this subject in Ceylon.
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1 may refer also to Thomson’s Institutes (vol. I., p. 7, and vol.II., p. 11). The latter passage rims as follows:—
“ The general or, as it is popularly termed, the Common Law ofCeylon is obtained from treatises on the Boman-Dutch Law; thatis, the Roman Civil Law added to or abrogated by the feudalcustoms and Federal or State statutes of the United Provincesof-Holland. These variations, additions, and abrogations appearednot only in the statute books of Holland, but in respect of Dutchcustoms in judicial decisions, and in learned treatises of juris-consults which bear almost the authority of those decisions.From this Boman-Dutch Law Dutch Feudalism and local customsmust be largely subtracted, as well as other institutions peculiarlyDutch; so that the Boman-Dutch Law, as accepted in Ceylon,re-approaches the Civil law. ” The author adds that this lawmodified by statute and English law “ extends to every inhabitantof the Island,” except in certain privileged instances.
If Ceylon had been a British Colony it might have been saidthat this question was subject to the principle stated by LordBlackburn in the Lauderdale Peerage Case (10 L. E. App. C. 715).But I am not aware that Ceylon or other countries colonized bythe Dutch remained unaffected by the legislation of the UnitedProvinces unless such legislation was introduced in them, and Ibelieve that this case is covered by the Roman-Dutch Law, which,according to Voet,- was favoured by many persons in Hollandbefore 1674.
I have a difficulty moreover in thinking that the burden ofproving the introduction of this individual law rests on therespondents. If it does, the application of Roman-Dutch Law inCeylon may be considerably unsettled. As to its application tothe low-country Sinhalese, the Dutch left the natives of Ceylonfor the most part to themselves, but I think that their law prevailedin fact or by fiction in the parts which they settled, and that thearea of that law naturally expanded as the settlements wereenlarged. If it was no matter to them whether the Sinhalesemarried, it does not follow that their law (as distinguished fromceremonial) was not binding. It is very late in the day to discussthis point, because the Boman-Dutch Law bfis (in spite of theCharter of 1801, section 32, which was repealed by the Charter of1833) continued to be in force in the Maritime Provinces since thecapitulation.'. ^
The answers given in 1830 to His Majesty’s Commissioners ofInquiry by Sir Richard Ottley, Chief Justice of Ceylon, 1828-1833,indicate so chaotic a condition of judicial matters in »the earlyyear^of the British occupation that little can be inferred from it-
1904.
October IS,
Monobetfp,
A:C.j.
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1904. as to what was done by the Dutch (see answer to question 5). InOctober 18. his answer to question 8 he enumerates the Courts instituted byMo“owttFF the Dutch. From question 9 and the following questions I take' A.C.J. these extracts: —
“ The Eoman-Dutch Law that prevailed in Ceylon before itsconquest by the British was continued by the Charter as the ruleboth in civil and criminal matters.
“ The customs of the natives are likewise part of the law, and asfar as the Mohammedan inhabitants are concerned those customsare found in Koran and other Mohammedan collections. As far asthe Malabar inhabitants are concerned, a small collection ofcustoms has been compiled and denominated the Thesavalamai.”There are still exemptions in favour of the customs of Moham-medans and Kandyans, and in favour of the Thesavalamai.
‘' These laws therefore consist partly of the ' old Roman-DutchLaw, partly of the customs of. the natives, partly of the local statutesor regulations enacted in the time of the Dutch and also of theBritish. The Criminal Law is founded on the Criminal Law ofthe Netherlands as it existed antecedently .to the conquest of theIsland by the British, but various modifications have been intro-duced.”
He speaks of the “ old ” Roman-Dutch Law, because shortlyafter the capitulation the Dutch discarded their old law in favourof the Code Napoleon. Sir R. Ottlev goes on to say (question 10)that there is a compilation of the laws in'force at the time of theconquest of the Island; but it appears that difficulties, wereplaced in the way of those wishing to consult records, and thecompilation is no longer available.
" In ordinary cases, when we proceed according to the CommonLaw of the Island, we apply the rules and maxims of the Roman-Dutch Law; Van Lecuwen’s Commentaries, Grotius’ Introductionand Voet on the Pandects are most usually quoted, but all booksof authority among the Dutch are admitted as authorities.(Question 13.)”
Question 15.—“ Are the Statutes of Batavia and the proclama-tions and provisidhal regulations of the Dutch authorities inCeylon considered to be in force when not superseded by the enact-ments of the British Government; and which of the two BatavianCb'des is received—Van Diemen’s or Van der Para’s?
^Answer.—“ The Statutes of Batavia are necessarily admitted,because Jhe Government of that Island, having been superior tothe Government of Ceylon, had power to modify or disallow theregulations of the latter. Van der Para’s collection is consideredof the greatest value.”
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Question 16.—“ Are they often referred to in the Courts, and arethey enforced in cases where they deviate from the provisions ofthe Roman-Dutch Law as expounded by the Dutch commentators?”
1004.
October It.
MoMOasm1,
A.C.J.
Answer.—“ They must necessarily be admitted as paramount toall authorities when applicable to the present state of the Island."
The last answer may refer to the Statutes of Batavia and theproclamations and provisional regulations of the Dutch; but it waspossibly given in reference only to the Statutes of Batavia. I donot find that it refers to any manuscripts or compilations of thelaw.
“ Where the native laws and customs have not been compiled,we‘refer, if the subject of dispute arise among Mohammedans, to themost learned and best informed among them. In disputes amongMalabars we should pursue a course nearly similar. But in othercases we consider the Roman-Dutch Law as the rule by whichcauses ought to be decided; and whenever that is silent, we mustrefer to the laws of Rome. (Question 18.)”
The natives of the Maritime Provinces thus fall into the categoryof “ other cases.”
” The laws applicable to property are very multiplied in Ceylon.The British have one Code, the Dutch another, the Mohammedansa third, the Malabars or Tamil inhabitants a fourth. The Sinha-lese generally abide by the Dutch Law. The Dutch Laws ofproperty are always applied where no other Code is prescribed.(Questions 71 and 72.)”
It seems to me that the answers to questions 18, 71, and 72settle generally the point as to the Maritime Provinces.
The argument for the appellants was chiefly directed to theterms of Ordinance No. 6 of 1847 (sections 27, 31, and 55).
Section 55 was naturally repealed by Ordinance No. 13 of 1863,which came into force in March, 1867, for that Ordinance and No. 13of 1859 altered the law which existed in 1847. Sections 27 and 31were read as one with No. 13 of 1863, and were therefore in force atthe date of the impugned marriage and down to their repeal byOrdinance No. 2 of 1895.
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Section 27 dealt with connections between persons within thedegrees of relationship prohibited in the section, and section 31enacted that a ‘‘ legal marriage ” should render legitimate, thechildren procreated between the parties before marriage, “ unlesssuch children shall have been procreated in adultery. ” ■ The Qrdi-nance does not profess to deal with all prohibited marriages, or torepeal the law by which marriages between persons who have livedin 'Sdultery were regarded as void. Section 55 shows that it didnot treat of or declare the whole law of marriage, and that (except
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1904.
October 18.
Moncketff,
A.C.J.
as affected by the Ordinance) the law remained as it was in everypart of the “ Island. Even Van Leeuwen, whose Commentarieswere published in 1678, and who mentions the disability of personswho have lived in adultery, does not speaks of the subject indealing generally with obstacles to marriage. On the other hand,it was urged that, because incest is not and adultery is introducedin section 31, it was intended that there might be a “ legal ”marriage between persons who have lived in adultery. Incest hadbeen already discussed in section 27, but the Ordinance makes noother mention of adultery except in reference to divorce, and fromthat it is inferred that the Legislature assumed that marriages ofthis kind were legal.
It is urged for the appellants that, if the Roman-Dutch Lawhad been in force, there would be at least a redundancy in thewords “ unless such children shall have been procreated inadultery,” and possibly a repeal of the Roman-Dutch Law (if it wasever operative in Ceylon).
It is true that all the section says on the matter is that the cele-bration of a marriage between two persons shall" not have the effectof rendering legitimate their children procreated in adultery beforemarriage, but it is said that it raises certain implications. A “ legal ”marriage is strictly one which is not only celebrated in a mannersanctioned by the law, but is also not prohibited by the law onconsiderations (for example) of age, affinity, or previous adultery.We have therefore to choose between the following alternatives: —
That in enacting section 31 of the Ordinance it was theintention of the Legislature to remove the disability resting uponpersons who have lived together in adultery; or
That that disability was never introduced in Ceylon by theUnited Provinces, or at least has fallen into desuetude; or
That the Legislature in using the words “ legal marriage,”never intended or contemplated the possible implication thatthere could be a legal marriage between persons who have livedtogether in adultery.
The exception is slender material upon which to found apresumption that this disability was never recognized in Ceylon.I reject the theory of repeal.- The incapacity of the parents formarriage was the reason why "the children could never be legiti-matized; it would be strange to remove the disability of theparents and affirm the illegitimacy of the children. Then althoughthe use of the word “ legal ” is unhappy, is the inconsistencybetween the exception and the Boman-Dutch Law such as shouldby itself lead us to think that the law never existed in Ceylon?I am not willing to think so.
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On this view the marriage of Sinno Appu and Angohamy regis- 1904.tered on the 2nd July, 1883, was void, the fourth and fifth defen October is.dants are not legitimate, and the defendants take nothing by moncbbi it,inheritance ab intestato from the estate of Sinno Appu. I am not A.C.J.convinced that the opinion of the majority of the Court reportedin 2 N. L. B. 276 is wrong. I think this appeal should be dismissed,but my brothers are of a different opinion, and consequently thefirst, fourth, and fifth defendants are entitled to judgment on thefooting that Angohamy (the first defendant) was legally marriedto the intestate in 1883, after the death of his first wife.
Middleton, J.—
I have had the advantage of reading not only the judgment ofmy Lord, but also that of my brother De Sampayo in this case, andJ have also in another case delivered a judgment in which Irather presumed that the Roman-Dutch Law as to the invalidityof a marriage between parties who had committed adultery andthe consequent illegitimacy of their • children and the disability ofthe surviving party to inherit was of acknowledged force andeffect in Ceylon.
Neither in the case I have alluded to nor in the present casewas* any serious effort made at the Bar to support by historicalresearch or inquiry the theory that this part of the Roman-DutchLaw had never been applied in Ceylon.
It was true that it was mentioned that no reported case couldbe discovered of the application of the Placaat of the 18th July.3674, in Ceylon, but no attempt was made to go into the earlyhistory of the law in force under the Dutch previously to thecapitulation to the English on the 15th February, 1796, to show infact what were “ the laws and institutions that subsisted underthe ancient Government of the United Provinces ” which .HisMajesty’s Proclamation of the 23rd September, 1799, declared,subject to certain deviations and alterations, the administration ofjustice should be in accordance with.
In my opinion it is for those who assert, ^tnd rely upon, theoperation of a Roman-Dutch Law promulgated since the capitula-tion of the Portuguese in 1656, where there is doubt whether thatlaw is extant in Ceylon or not, to show beyond. all question that,itoperates and applies.
At the Cape it was laid down by Chief Justice Villiers '»inSeavillq v. Golly (1891), 9 Juta 39, that any Dutch Law* which isincongstent with well established and reasonable custom, and hasnot; although relating to a matter of frequent occurrence, beer,5-
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1904.
October 18.
Mumdxsxok,
J.
distinctly recognized and acted upon by the Supreme Court, mayfairly be held, to have been abrogated by disuse.
This appears to me to be a sound test or rule which might verywell be followed in Ceylon, where the same question arises.
From Voet Comm, ad Pand. 23, 2, 27, it may be gathered, asChief Justice Bonser said in "his judgment 2 N. L. R., p. 278,that such a marriage as this was not forbidden except a promiseof marriage had passed between the guilty parties during thelifetime of the innocent spouse, or unless they had been guilty ofan attempt against such spouse’s life.
These circumstances do not apply to the present case, and there–fore unless the Placaat came into force in Ceylon this marriagewould be unobjectionable.
The capitulation of the Portuguese to the Dutch was on 11thMay, 1656, and the Placaat bears date 18th July, 1674, and thereis no evidence to show it has ever been distinctly recognizedor acted upon in Ceylon.
Assuming the Dutch rule to be the same as the English inregard to the force and effect of laws of the old country in thenew Colony, the Placaat■ unless specifically promulgated to haveeffect in Ceylon, may be assumed never to have applied here.
Again, it is not unreasonable to presume that in the last hundredyears many such marriages must have taken place in Ceylon, butthere is no record of the application of the Placaat to any of them.
I think it will be accepted also as true that the trend of modemopinion and thought is opposed to such restrictions, and thatconsequently even if it had ever been introduced into Ceylon onthe test laid down by Chief Justice Villiers it may fairly be heldto have become obsolete.
“ The Placaat does not seem to be found in the Statutes ofBatavia,” says my Brother De Sampayo; and Mr. Cleghorn in hisMinute of 1st June, 1799, on the administration of justice andof the revenue under the Dutch Government, states that justicewas formerly administered partly according to the Dutch Laws,partly according to the Statutes of Batavia and to the ancientusages and institutions of the natives.
According to an extract from the Resolution of Council ofCeylon, dated 20th December, 1758, to be found in the Appendixto Vdnder8traaten’s Reports, it was resolved that certain LettersPatent, Articles of Instruction, &c., therein set out, and includingthe Political Ordinance of Holland dated 1st April, 1580, shouldbe caused to be observed throughout the Island.
This Political Ordinance, which had been applied to the1 DutchWest Indies on 13th October, 1629, by order of the States-GTeheral
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of the Netherlands, contains in Articles 4 and 6-13 regulations 19®4-
prohibiting marriages within certain degrees of consanguinity *
as void and incestuous, but reserves the force of the Placaat Mtodbetoit,issued by TTis Imperial Majesty in the year 1540 respecting thecontracting of marriages of persons under age and the penaltiestherein stated. The Ordinance goes on, in Articles 14-18, toforbid and ordain punishment for adultery as an offence and a•crime. There is- nothing in the Ordinance declaring any pro-hibition of marriage between persons who may have committedadultery.
It- is not unreasonable to assume then that the framers of thaiOrdinance did not even deem- it desirable to declare any suchprohibition to have the force of law where that Ordinance was tohe promulgated.
The law as to incest and prohibited degrees was as much thecommon law as the prohibition in question, and the law on thetwo former points is duly declared, but not on the latter, althoughthe Ordinance declares the punishments to be incurred foradultery.
By the Charter of 1801, section 22, their laws and usages in mattersof inheritance and succession to land, &c., were conserved to theSinhalese and Mussalmans, and "by section 52 the Supreme Courtwas bound to administer justice in the case of matrimonial andtestamentary causes towards and upon all the Dutch inhabitants,
Ac., according to the laws and usages in that behalf in force atthe time the said Settlements, &c., came into our possession, andtowards British and Europeans according to the ecclesiastical lawas the same was then used and exercised in the Diocese of London.
By section 54 matrimonial causes between natives were excludedfrom the jurisdiction of the Supreme Court. By the Proclamationof 10th November, 1802, jurisdiction in matrimonial causes in thecase of natives was assigned to the Provincial Courts. By Regula-tion No. 4 of 1806 all marriages between persons of the RomanCatholic religion which had taken place since 26th August, 1795,according to the rites of that Church were declared to be valid.
By Regulation No. 7 of 1815 marriages qf Protestant nativescelebrated by Protestant Missionaries were declared valid. ByRegulation No. 9 of 1822 provision was made for the registrationof the marriages of natives of the Maritime Settlements ,tand.natives of India residing here, and it was declared (section 14)that Christian natives should not marry within certain degrees ofconsanguinity, in accordance with the laws which have prevailedan4ci*have been published by the Government of the UnitedProvinces as follows………
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1904. it was apparently not intended to apply these laws to nativesOctober 18. Qther than Christians, who no doubt were left to their customsMmnr.imv and usages, and it is not perhaps unreasonable to infer that thisJ. * portion of the Roman-Dutch Law as regards marriage havingbeen thus specifically applied to native Christians, it was notintended to make other portions of the same law applicable tothem. '
The Charter of 1833 repealed the Charters of 1801, 1810, and 1811and established District Courts (section 20), but gave them (s. 24)no matrimonial jurisdiction specifically.
By Ordinance No. 6 of 1847 the Regulation of 1815 was repealed,saving the validity of marriages contracted thereunder; an age limitwas enacted (section 26); the prohibited degrees of consanguinitywere laid down (section 27); bigamy was constituted, exceptingMohammedans, and made an offence (section 29); the legitimationof children born previous to marriage by a legal marriage unlessprocreated in adultery enacted (section 31); and after reciting(section 55) that the Ordinance does not profess to treat of or todeclare the whole law of marriage, it declared the law of marriageto be the same in every part of the Island in which this Ordinancecame into force as it was therein before such time, “ except in sofar as ' such law shall conflict with the provisions of thisOrdinance.”
t
This Ordinance, by section 5, was only to take effect in the partsof the Island in which it was proclaimed, aud re-enacted thenecessity for registration (section 6).
As the Ordinance applied apparently to all persons in CeyloD.the effect of section 55 was to conserve the marriage laws andcustoms of the Kandyans and Mohammedans, who formed no smallpart of the population of the .Island, in so far as they did not-conflict with the terms of the Ordinance which apparently thuswas to override them.
It would no doubt also have conserved any part of the Roman-Dutch-Common Law which had hitherto been in force
It enacted nothing to constitute illegal a marriage betweenparties who had previously committed adultery, but under, section31 the offspring of adultery were debarred from legitimation bythe subsequent marriage of their parents. The wording of section31 *3 as follows:“ From and after the notification in the Gazette
of the confirmation of this Ordinance by Her Majesty, 'a legalmarriage between any parties shall have the effect of renderinglegitimate ‘the birth of any children who may have been procre-ated between the same parties before marriage, unless suchchildren shall have been procreated in adultery.”
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It seems to me that this very declaration of disability to becomelegitimate might show that the – Legislature contemplated that alegal marriage might occur between persons who had lived inadultery, but declined to allow the offspring of such connectionto be legitimized in any event.
This appears to me a more reasonable inference than that theLegislature intended by section 31 to declare in a latent andobscure fashion the Boman-Dutch Law under the Plaoaat of 18thJuly, 1674, to be in existence, because it refused to legitimizechildren procreated in adultery.
If a “ legal ” marriage did not include sucih a case as that beforeus„ why were the words “ unless such children shall have beenprocreated in adultery ’’ added to the section?
If such a marriage was not a legal marriage it would be on thesame footing as an incestuous connection, which cannot be legalized,and the offspring would clearly be illegitimate, and the words“ unless such children shall have been procreated in adulterywould be redundant and unnecessary.
Ordinance No. 13 of 1863, which repealed Begulation No. 9 of 1829and the whole of Ordinance No. 6 of 1847, except sections 1, 7, 10, 11,18, 23, 26, 27, 28, 29, 30, 31, 32 and 33, specifically declared itselfto apply to all cases of marriage other than Kandyan marriagesand those contracted between persons of the Mohammedan faith.
As this Ordinance repealed section 55 of Ordinance No. 6 of1847 it is not unreasonable to assume that it, together with theunrepealed sections, was considered to declare the whole law asregards marriages between persons other than Mohammedans orKandyans.
Ordinances Nos. 8 of 1865 and 15 of 1877 have no bearing on thepoint before us, but Ordinance No. .2 of 1895, which was enacted toconsolidate and amend the laws relating to marriages in the Islandother than the marriages of Kandyans and Mohammedans,repealed the remainder of Ordinance No. 6 of 1847 and the wholeof Ordinance No. 13 of 1863, but re-enacted by section 22 the termsof section 31 of Ordinance No. 6 of 1847 as to the legitimation bymarriage of illegitimate children except those procreated in adul-tery, to which I have already applied* an argument to show that itdoes not purport to declare the Boman-Dutch Law under thePlacaat of 1674.
This Ordinance also makes incest an offence, and re-enactssections 26, 27, 28, and 29 of Ordinance No. 6 of 1847, and further,having a new provision under section 23 as 'to consent to amarriage of a minor, it might in fact purport to contain, now thatsecjjon 55 of Ordinance No. 6 of 1847 is repealed, the whole law
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as to marriage between persons other than Kandyans or Moham-medans.
In my view, therefore, in the first place there is -prima facie noevidence to show that the law in Voet, 23, 2, 27, which mightbe deemed the Roman-Dutch Common Law, or the Placaat of the18th July, 1674, were ever recognized or acted upon in Ceylon; thateven if the so-called Common Law on this point were in force itwould not be applicable to this case, inasmuch as the inculpatingcircumstances are not present here.
I feel that I have not had access to, nor have I even knowledgeof, all the possible Dutch of other authorities upon which to foundmy opinion, but so far as I am able to judge I would hold in ftiiscase that the Roman-Dutch Law does not apply, and that themarriage between Sinno .Appu with the first defendant is a validone, and that the fourth and fifth defendants are consequently hislegitimate issue.
De Sampayo, A.J.—
The defendants have brought before us the appellate judgmentof this Court dated 10th May, 1900, by way of review preparatoryto an appeal to the Privy Council. It was conceded that the second,third, and sixth defendants could not maintain their position,and the argument was confined to the case of the first, fourth, andfifth defendants. The question submitted for determination iswhether the decision in the earlier judgment of this Court of datethe 26th January, 1897, and reported in 2 N. L. B. 276, on thefooting of which the appellate judgment 'was given, is correct, viz.,that the marriage of Sinno Appu and the first defendant on 2ndJuly, 1883, was invalid in consequence of adultery committed bythem during the lifetime of Sinno Appu’s first wife Babunhamy,and that therefore neither the first defendant nor the fourth andfifth defendants, who are the issue of that marriage, could succeedab intestate) to the property of Sinno Appu.
There can be no doubt that under the Roman-Dutch Law, asstated in the passages cited from Voet and Vanderlinden in thejudgment of the Supreme Court of 26th January, 1897, a marriagebetween parties who had previously committed adultery witheach oijher was forbidden, and, if contracted, was in law null andvoicf'. But the questions Which appear to me necessary to considerare whether the law as so stated prevailed in Ceylon under theDufch Government,, and whether, even if it applied to the Dutchcolonists, it was extended to the native inhabitants of the Island.For it was only laws and institutions that subsisted in Ceylonunder the ancient Government- of the United Provinces that are
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conserved and declared to be oi force by the Proclamation of23rd September, 1799. These questions are not free from thedifficulties natural to obscure points of legal history, but I thinkthat we are not without materials upon which a fair judgmentmay be formed. If these questions are answered in the affirmative,there arises- the third question as to what is the effect on thispoint of British local legislation on the subject of marriage.
It is of course true as a general proposition that the Roman-Dutch Law prevailed in Ceylon under the Dutch Government.But I think it is more correct to say that what So prevailed wasnot the whole body of Dutch Laws, including legislation due to thepeculiar circumstances of time and place, but only what may becalled the Common Law of-Holland, or so much of it as was suitableto local needs and circumstances, while this was supplemented fromtime to time, as necessity arose, by local legislation. This is inaccordance with the English principle applicable to new Settle-ments, for, as it is generally put, colonists carry with them onlyso much of the Eng^sh Law as is applicable to their own situationand the condition of an infant colony, though it may be difficultin particular cases to determine what is so applicable and whatnot. It would seem also that whenever it was desired to introduceany special statute laws of Holland into the Dutch colonies, thiswas done either by Orders or Instructions of the States-General orby a local legislative act. In illustration of the fact that a questionas to whether a particular portion of the Dutch Law prevailed ina Dutch colony will be entertained, I may instance the case ofThurburn v. Steward (7 Moore P. G. 333), where the questionwhether the 6th Article of the Placaat of 15.40 relating tomarriage settlements prevailed in Cape Colony was discussed,though it was ultimately determined, upon the material before theCourt, that it did. It is important to bear in mind that thisquestion was raised in regard to a statute which was passed inHolland over a century before the occupation of Cape Colony bythe Dutch, and which therefore might have been supposed beyondany question to have been introduced with the occupation. Butthe case will not only be much stronger but entirely differentwhen an Imperial statute passed since the settlement of a Dutchcolony is concerned. The English principle undoubtedly is that“ no act of Parliament made after a colony is planted is construedto extend to it without express words showing the intention of theLegislature to be that it should ” (Bex v. Vaughan, 4 Burr. 2500).I have no reason to think that the Dutch acted on ,a differentprinciple; on the contrary, there are many indications that theyacted on just the same principle. Now, the law which absolutely
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prohibited marriages between persons who had previously com-mitted adultery with each other was not a part oi the Common Lawof Holland, but was an innovation effected by a Placaat of theStates of Holland dated 18th July, 1674. Both Vanderlinden{Henry’s Translation, page 79) and Vost {23, 2, 27). refer to thisPlacaat as their authority for the statement of the law on this point.Mr. Domhorst for the plaintiff, however, cited Van Leeuwen Gens.For. 5, 26, 1, Comm. 4, 17, 7, and also Comm. 1, 7, 7, as showing thatsuch marriages were invalid even before the Placaat of 1674, whichhe argued was merely a declaration of the Common Law. I do notthink that these references bear out the contention. The first twopassages deal with the punishment of adultery as a crime, and'- weknow even otherwise that not only adultery but even simple forni-cation was punishable under. the Boman-Dutch Law. Curiously,Van Leeuwen in the above passage from the Gensura refers to theEnglish Law during the time of King Edward VI., by whichadulterers, both lay and cleric, were punishable not only by for-feiture of property but by exile or perpetual imprisonment, but I amnot aware that by- reason of this marriage between persons guiltyof this crime was regarded as invalid at any period of the EnglishLaw. In the second passage from the Commentaries Van Leeuwenis dealing with the subject of legitimation of bastards by favourof the Sovereign, but he says (to quote from Kotze’s Trans., vol..L,p. 61), “ Children procreated in adultery or incest cannot be legiti-matized, inasmuch as according to the Ecclesiastical Laws there canbe no marriage with a woman with whom we have formerly livedin adultery.” The expression used in the old (Ceylon) translationof Van Leeuwen is “ spiritual laws,” but, whatever the rightexpression, Van Leeuwen appears to me (especially from Kotze’snote on this passage) only to say that the Sovereign will not grantthe privilege because the marriage, though not prohibited by theCivil Law of the country, is still contrary to ecclesiastical rule. Inany case, none of these passages is a direct authority for theproposition that the law as administered in the Civil Courts, withwhich alone we are concerned, prohibited such marriage. On theother hand, Voet in .the passage already referred to expressly saysthat previous to the enactment of the Placaat of 1674 suchmarriages were not forbidden unless there had been a promise ofmairiage between the guilty parties during the lifetime of theinnocent spouse, or unless they had been guilty of an attempt againstsuck spouse’s life. The law, then, which absolutely prohibitedsuch marriages was a pure creature of legislation in Holland in1674, which is a date subsequent to the settlement of the Dutch inCeylon.
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But there is no proof that this Placaat was applicable to orprevailed in the Dutch Indies. On the contrary, I find that Voet,in a later section of the same book and title, after treating ofvarious matters relating to marriage, says (S3, 2, 97) that, withregard to the marriages of those who contract them in the terri-tories subject to the West India Company, the same are governedby the Edict of the States of Holland of the year 1580. Thereference is to the great statute generally known as tho Political'Ordinance of 1580, which among other things provided for the duesolemnization of marriages, determined the prohibited degrees ofkindred, and contained penalties for the crime of adultery. ThePolitical Ordinance was introduced into the West Indies by theOrder of Government of 1629, which by its 59th Article declaredthat “ in matters of matrimony, of rights of husband , and wife, insuccession ab intestato, and execution of wills, and everythingrelative thereto ” the Political Ordinance should govern all personsin the West Indies. It might perhaps be thought that, when insection 97 above referred to Yoet spoke of the Political Ordinancegoverning marriages contracted in the West Indies, he was merelyreferring to the matters he had discussed in the immediatelypreceding sections, viz., as to the consequences on property flowingfrom marriage, and did not have in view any special law relating tocompetency to marry, such as the Placaat of 1674 in question; butthis is not so, because the Political Ordinance does not at all treatof the consequences of marriage on property or any similarsubject. It is true that the Political Ordinance punished adulteryas a crime, but the punishment of adultery does not in principlevitiate the subsequent marriage, because otherwise it would nothave been necessary to enact the Placaat of 1674, inasmuch asadultery as well as the lesser form of sexual immorality was acrime by the general law of Holland even before the enactment ofthe Political Ordinance of 1580 (Voet, 48, 5, and Mathceus DeCrim. 48, 3, 5). If the special enactment of 1674 introducing suchan important change in the rules regarding capacity to marry wasapplicable to the Dutch Indies, it is strange that Voet in the samebook and title should content himself with merely saying that thePolitical Ordinance, which did provide for certain incapacities,governed the marriage contracted in the West Indies. In thisconnection it must be remembered that the Political Ordinance,though some of the States of North Holland obtained an exemptionfrom the rule of intestate succession therein laid down by a specialPlacaat in 1599, was and remained a general statute * so. far asregards marriages, and yet it required, as we have seen, to beexpressly introduced into the West Indies. This appears to me
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to support the opinion I have above ventured to express, that ustatute of Holland did not of itself have operation in the DutchIndies unless so expressly introduced by the Supreme Governmentor adopted by the local authority. The importance of this wholematter lies in this, that the Dutch Government of Ceylon, by aResolution of Council dated the 20th December, 1758, adopted thePolitical Ordinance of 1580, together with the 59th Article of theOrder of Government of 1629 above referred to. For a translationof the Political Ordinance and the 59th Article of the Instructionsand the Resolution of Government, see Vanderstraaten’s Reports,App., p. 1 et seq. At the date of the Placaat in question, viz.,1674, the Dutch Indies had been already long provided not onlywith settled government but with a legislative machinery, so thatthere is less reason on this account to think that the Placaat wouldhave operation in these Dutch possessions without express intro-duction. Now, the Placaats of Netherlands India throughout thewhole period of Dutch domination from 1602 to 1811 are extant,but, so far as I am able to ascertain, neither in these Placaats norin the Statutes of Batavia, which I may have occasion to referto again, is there any indication that the Placaat of 1674 or’anything similar to its provision was in force in the Dutch Indies.
It is worth while to consider for a moment what the Statutesof Batavia were. They were a code of laws first promulgated' in1642 by the Government of Batavia. From the preamble we gatherthat this code is a compendium of the Ordinances and Statutespreviously passed by the Government of Batavia, and also of suchportions of the Roman-Dutch Common Law as were after modi-fication and expungement adopted as suitable for the welfare ofthe country, set down in proper order, each subject under itsseparate title, and the code was issued for observance by theCourt of Batavia and by all Courts subject to its jurisdiction. Itfurther provided that these Statutes should be added to andsupplemented by incorporating the substance of future legislativeenactments under the respective titles and headings. Accordinglywe find that the subsequent legislative enactments . were soembodied, so far a» the copy available in Ceylon indicates, tilltowards the end of the eighteenth century. In these statutes arefound, among other subjects, laws relating to marriage with thevarious cases of incapacity. Among the later legislative enact-ments incorporated therein are one of 20th March, 1766, by whichlepers were prohibited from marrying except among themselves,and another of 9th September, 1766, by which marriages betweenChristians and Heathens and Moors were prohibited. Bui^theImperial Placaat of 1674 with which we are concerned, or anything
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■similar to its provision, is nowhere to be found. I have mentionedthe instances of the newer legislation relating to the incompetencyarising out of leprosy and difference of religion, for the purpose-of showing that the Boman-Dutch Law as it prevailed in Hollandwas not considered necessarily applicable in Netherlands India,inasmuch as the cases of incompetency referred to were alreadypart of the Boman-Dutch Law (see Voet, 23, 2, 26, and Voet, 23, 2,28), and yet those points of law were re-enacted by the legislativeauthority of Netherlands India. Now it appears that the Statutesof Batavia were formally adopted in Ceylon by resolution ofthe Governor in Council on 3rd March, 1666, as shown by astatement to that effect in a memoir written by Heer Zwardekrwon,once Commandeur of Jaffnapatam in Ceylon and afterwardsGovernor-General of Batavia. For this information and an■explanation of some of the contents of the Statutes, as well asfor an examination of the Index to the Placaats of NetherlandsIndia, I am indebted to the well-known Dutch scholar andGovernment Archivist, Mr. B. G: Anthonisz. We know furtherthat Ceylon was subordinate judicially and politically to theGovernment of Batavia, and as we shall afterwards find there wasan appeal from the High Court of Justice in Ceylon to Batavia.Mr. Berwick, late District Judge of Colombo, and one of the mosteminent Boman-Dutch lawyers of Ceylon, says: “ There is nodoubt that the Batavian Statutes did have both judicial andpolitical authority in Ceylon, though the precise nature and extentof that authority is as yet somewhat obscure,” and in proof ofthis he adduces an instance in which an article of the Statutes ofBatavia was expressly repealed in Ceylon. See note to his judg-ment in the Wolfendahl Church Case at page .84 of part III. ofGrenier’s Reports for 1873. The authority of Mr. Cleghorn andChief Justice Sir Bichard Ottley, whom I shall hereafter refer to,is to the same effect. The upshot of all this appears to me to bethat the Placaat of 1674 did not prevail in Ceylon, and a marriagebetween adulterous persons was not forbidden.
When we come to the question whether, even assuming thatthe law forbidding such marriages prevailed* among the DutchBurghers, it extended to the native inhabitants subject to theDutch Government, we are, I think, on firmer ground. The DutchEast India Company was a trading company, and it is a wSll-known fact'that the Dutch, whether from policy or from indiffer-ence, troubled themselves very little about the native inhabitants,«xcept> perhaps in the case of the small number of native Christianswhc^were in the service of the Government or resided in the forts,and left them more or less contemptuously to themselves. The
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Dutch, therefore, were not likely to extend to the native populationin their integrity the personal laws by which they governedthemselves, and least of all their peculiar and strictly Christianviews of the marriage relation. Accordingly we find that nativecustoms and usages were recognized, and that, even when Boman-Dutch Law was in any degree applied, it was so applied with suchmodifications and qualifications as were suitable to the people.
The Statutes of Batavia above mentioned, according to Mr.Cleghom and Chief Justice Sir Bichard Ottley, were in operationin Ceylon under the Dutch Government. Mr. Cleghom wasSecretary to Government in the very early days of the Britishoccupation, and appears to have been entrusted with the task ofmaking an inquiry into the Dutch administration of the Island.He wrote a report known as “ Cleghorn’s Minute,” dated 1st June,1799. The full report appears now to be not forthcoming, but longnotes from it are now extant, and an extract therefrom I findgiven in Pereira’s Institutes of the Laws of Ceylon, vol. I., p. IS.(The date assigned in these Institutes to the Statutes of Batavia is1749, which I think is a mistake for 1642, apparently due to thefact that the notes of the Minute erroneously make Cleghom speakof the Statutes as having been issued “ half a century ago,”unless the reference is to a later edition of the. Statutes.) Forthese notes from Mr. Cleghorn’s Minute see the Ceylon LiteraryRegister, vol. VI., p. 43. Now, Mr. Cleghom’s account of theStatutes is: “ These statutes by altering and modifying the juris-prudence of Holland endeavoured to reconcile the Governmentof the Company to the spirit of the natives.” This appears to mefurther to support the view that the Boman-Dutch Law in itsoriginal integrity was not applied to the natives of the DutchSettlements in the East. Mr. Cleghom is a valuable authority onthis point, and as Secretary to Government not only signed theProclamation of 23rd September, 1799, which conserved the lawas administered under the former Government of the Dutch, butprobably had much to do with the framing of it as well as of theCharter of 1801, which almost immediately followed.
•
Now, this Charter (clause 31) provided for the continuance ofthe jurisdiction hitherto exercised by the landraad in all suits,causes, and matters between natives, and further provided (clause32) that in the case of the Sinhalese natives their inheritance andsuccession to property and all matters of contract between themshould ba determined by the laws and usages of the Sinhalese.This Charter was repealed by the Charter of 1833, but the* aboveprovision is important as indicative of the sparing application ofthe pure Boman-Dutch Law to the natives, for it is quite clear
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that this recognition of native laws and usages was a continuationof the practice under the Dutch administration.
Sir Bichard Ottley, Chief Justice of Ceylon, in his replies to theRoyal Commission of Inquiry of 1830, after referring to variousmatters relating to the Courts and administration of law, states:
“ The customs of the natives are likewise part of the law,” addingthat as regards the Mohammedans and Malabars their customs are'to be found in the Mohammedan collections and in the Thesa-vcHamai respectively. He winds up the whole matter thus:
“ These laws therefore consist partly of the Boman-Dutch Law,partly of the customs of the natives, partly of the local Statutes orRegulations enacted in the time of the Dutch and also of theBritish.” In answer to a further question Sir Bichard Ottleysaid: “ There is a compilation of the laws in force at the time of'the' conquest of the Island, and many manuscript laws aredeposited with the Beeper of the Dutch Becords.” I am afraidthese compilations and manuscripts are not now to be found,and they have at least not been available to me. The questionNo. 16 was significant, and was as follows: “Are they oftenreferred to in the Courts, and are they enforced in cases wherethey deviate from the provisions of the Boman-Dutch Law asexpounded by the Dutch commentators?” And his reply was:
" They must necessarily be admitted as paramount to allauthorities when applicable to the present state of the Island.”Sir Charles Marshall, then Puisne Justice and afterwards ChiefJustice, in his report to the same Commission of Inquiry, speaksof the native laws and usages in the same way. These referencesare sufficient, though there are others, to show that in endeavour-ing to find what are “ the laws and institutions that subsistedunder the ancient Government of the United Provinces ” as regardsthe native inhabitants, we should not have recourse solely to theBoman-Dutch Common Law, and much less to the Legislation inHolland enacted since the occupation of Ceylon by the Dutch.As an illustration of the practical application of the native laws,even since the British occupation of Ceylon, I may refer to a case of1835 reported in Morgan’s Digest, p. 57, where the Supreme Courtremitted the case to the District Court of Halutara for furtherconsideration of a point as to dowry and inheritance “ afterconsultation with those best acquainted with the Sinhalese law ofinheritance.” If this were so in the case of such a subject asinheritance, much more would the Boman-Dutch Law give wayto native laws and usages in matters relating to personal status,rights, ,and disabilities. Accordingly we find Sir Charles ‘Marshallsaying (see Marshall’s Judgments, p. 391) that “ on all questions
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arising between natives on matters of property, inheritance rmarriage, legitimacy, or any other civil rights, if there be no express-legislative enactments on the point in dispute, the Court mustdecide according to the customary law, and for that purpose mustinquire into the custom not only of the districts but also of theclass to which the litigants belong and again he says {p. 396}that even as regards the maritime provinces “the native inhabi-tants are so far to be excepted from the operation of the Roman-Dutch Law that in questions of inheritance, marriage, and other
subjects connected with national usagesit is those customs
and not the Law of Holland that ought to prevail.’’ I do not saythat from these authorities or any other source of informatipn aparticular native custom authorizing the marriage of adulterouspersons can be shown to have existed, but I think they fairly leadto the conclusion that the peculiar and narrow view of the Dutchon this subject was unsuited to native ideas of the time; that thelegislation of Holland was never applied to the native inhabitants,the vast bulk of whom were non-Christian; and that the burdenof proof, if I may so put it, is on those who assert the contrary.
If such then was the distinction in. the law as it was applied tothe Dutch or Burghers themselves and the native inhabitants, wefind a corresponding distinction in the constitution and jurisdic-tion of the Courts of Law. I take the following particulars fromCleghorn’s Minute and Sir Richard Ottley’s replies alreadymentioned. Under the Dutch. Government there was first theHof van Justitic, or the Court of Justice, which exercised juris-diction over Europeans and their descendants and over the. nativeChristians residing in the Forts, with an appeal from its decisions^to Batavia, but as, according to Mr. Cleghorn, “ a few individuals ’’only among the Sinhalese ■ and Malabars were Christians, it maybe said that this Court was intended practically for the Dutch andthe Burghers alone. Then there was the Landraad, or CountryCouncil, for the determination of suits where the natives wereconcerned, with an appeal to the Hof van Justitie. Besides theseCourts there was a Weeskamer, or Orphan Chamber, for theadministration of 'orphans’ property for the Dutch and theirdescendants, and a separate Boedelkamer for the estates of theorphans of natives. Further, it is interesting to note that theIfandraads were composed largely of native officials. For instance,the Landraad of Colombo consisted of the Dissawa (who wasPresident), the Fiscal, the Chief of the Mahabedde, the ThombuKeeper, the Maha Mudaliyar, and the Mudaliyar of the Dissawa.These were the" permanent judges, but it appears that sometifiues afew other persons were selected from among the junior merchants
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and bookkeepers to act as judges occasionally. The permanentjudges, excepting the Dissawa and perhaps the Fiscal, werenative officials, and without any professional knowledge of the law.It would be strange if this singular Court knew or were able toapply the intricacies and refinemets of the Eoman-Dutch Lawto the native inhabitants of the Island.
Assuming, however, that the prohibition of marriages betweenpersons who have committed adultery extended to the nativesunder the Dutch rule, there remains the question whether itcontinued to have any operation under the British Government.To begin with, after the British occupation adultery ceased to bea clime. It has been held that, as the result of the early Procla-mations and the Charter of 1801 the whole of the Dutch criminaljurisprudence was swept away. See Regina v. John Mendis,5 S. C. G. 47. The opinion of Chief Justice Sir Hardinge Giffardtherein cited (Ramanathan’s Reports, 1820-1833, p. 80) was basedupon a principle which has a material bearing upon the presentinquiry; for the eminent Chief Justice, who was dealing with theprivilege of a witness from arrest, after referring to the Charterof 1801, which authorized “ such deviations, expedients, and usefulalterations (from the Boman-Dutch Law) as shall be eitherabsolutely necessary and unavoidable or evidently beneficial anddesirable,’’ proceeded as follows:“ Such deviations, expedients,
and useful alterations have been introduced in a variety of ways,some by Begulation of Government; some by this Charter itselfand the two later Charters. Some have become absolutely neces-sary and unavoidable, and others have been so evidently beneficialand desirable as to have been adopted as a matter of course.” Inthis and other passages in the judgment the Chief Justice wasdefending the Supreme Court from the imputation that the Boman-Dutch Law was being disregarded and superseded by the deci-sions of the judges. He therefore appealed to the obviousintentions of the Charter and the early Proclamations, and heshowed by examples that much of the Boman-Dutch Law wasimpliedly, though not expressly, repealed.
In the light of the principles enunciated in'the above judgmentit is important- to notice the actual legislation on the subject ofmarriage. The Charter of 1801, which established the SupremeCourt of Judicature, conferred jurisdiction on that Court over *alltestamentary and matrimonial causes (section 52), and providedthat in regard to the Dutch inhabitants those causes should bedetermined according to the Dutch Law as it prevailed at the timeof lie British occupation, and in regard to the British and Euro-peans according to the Ecclesiastical Law exercised in the Diocese
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of London (section 58). It expressly prohibited the SupremeCourt from exercising jurisdiction in matrimonial causes in respectof the natives of the Island, but it did not provide what law shouldbe administered in the case of natives and by what Court. Theomission was supplied by the Proclamation of 10th November,
1802, by which the jurisdiction in matrimonial causes in thecase of natives was assigned to the Provincial Courts (correspond-ing to the old Landraads), and it was further provided that allsuch matrimonial causes, contests, suits, and business should bedetermined- according to the laws and usages of the native sect orcaste of the parties. The Charter and Proclamation above referred!to were repealed by the Charter of 1833, but I do not think it istoo much to say here that early British legislation followed closelythe Dutch administration, and that here again we are furnishedwith an indication that the Boman-Dutch Law of Marriage was notextended to the native inhabitants.
I need not refer to the other legislative enactments prior to theOrdinance No. 6 of 1847 and the amending Ordinance No. 13of 1868, which are the Ordinances applicable to the marriagebetween Sinno Appu and the first defendant. The sections mostdiscussed at the argument were sections 31 and 55 of the formerOrdinance. The grammatical construction of section 31 seems tome to involve the necessity of holding that the Legislatureconsidered a marriage between persons who had previouslycommitted adultery, was “ a legal marriage,” and in this section“ legal marriage,” I think, means a valid marriage hot onlyin respect of formalities, but also in respect of competencyof the parties to the contract. It is noticeable that neither ofthese Ordinances expressly conserves the Boman-Dutch Law inmatters not provided for, but much is made of section 55 of theOrdinance' No. 6 of 1847, which declares that the Ordinancedoes not profess to declare the whole law of marriage, and enactsthat ‘‘ the law of marriage shall be deemed and taken to be thesame in every part of the Island in which the Ordinance shallcome into force as it was therein before such time, except in so faro
as such law shall conflict with the provisions of the Ordinance.”
It is argued that this section was intended to preserve the Boman-Dutch Law. If so, why did it not say so in so many words, andwhy was it necessary to provide for it in this round-about fashion?
I think this section is capable of a simpler explanation. TheOrGinance on the face of it is a general Ordinance applicable to allpersons throughout the Island, and did not provide, as the- laterMarriage Ordinances did, that it .should not apply, for instance* toKandyans and Mohammedans, and it seems to me not unreasonable
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to suppose that the section intended to conserve the speoial lawsapplicable to such persons. I am the more inolined to think so,because, when Ordinance No. 18 oi 1863, whioh was to be read asone Ordinance with the Ordinance No. 6 of 1847, expressly excludedKandyan arid Mohammedan marriages from the operation of theOrdinance, section 55 of the Ordinance 6 of 1847 was found tobe no longer necessary and was accordingly repealed. Otherwise,how is the repeal to be explained when the very argument is that*Vn’g section was intended to preserve the Roman-Dutch Law?Further, if the argument is valid, then it seems to me to followthat the Roman-Dutch Law of Marriage was swept away in 1863by the repeal of the section. The consequence of either view ofsection 55 of the Ordinance No. 6 of 1847 is that at the date of themarriage between Singho Appu and the first defendant the Roman-Dutch Law was no longer in force and that their marriage wastherefore valid.
Moreover, if once you admit the incompetency arising fromprevious adultery to exist, it appears to me that you mustadmit much more. For you must admit that Christians cannotmarry Jews, Mohammedans, or Heathens, and that lepers cannotmarry healthy persons, inasmuch as these and other cases arementioned by . Voet and Vanderlinden as prohibited marriages.But I do not suppose that these marriages will be so regarded nowunder our law. It may however be said that the Roman-DutchLaw relating to these prohibited cases has been impliedly repealedor has fallen into desuetude. But if you once begin thus, I do notknow where you can stop or why you should draw the line at thelaw prohibiting marriage between persons guilty of adultery.
•
In this connection it is worthy of notice that while, since thedecision under consideration in 1897, several cases have beenbrought in our Courts on. the footing of the law declared in thatdecision, there is no single discoverable case touching this pointthroughout the whole of the preceding century of British adminis-tration, and I think the doctrine of desuetude can be applied tothis point of Roman-Dutch Law with as much fo?sce as to any other.Nor does the holding of the Privy Council in the Le Meaurier Case(64 L. J. P. G. 97), that the matrimonial law of European residentsin Ceylon is the Roman-Dutch Law, militate against the suggestionthat the Roman-Dutch Law on this particular point does not prevailin Ceylon. In the first place, the Privy Council, judgment wasconcerned with the question of jurisdiction only, and in 2he nextplace 3the Privy Council only decided generally that by reason ofthe Proclamation of 23rd September, 1799, the “ laws and institu-tions ” under the Dutch Government prevailed in Ceylon, but did6-
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A.J.
not profess to lay down what those laws and institutions were orto deal with the question whether any of them has been impliedlyor expressly repealed or has fallen into disuse.
I regret that I have dealt with this matter at such length, butI have considered that I should fully state the reasons for theopinion which I have formed. The reasons I have given lead meto the conclusion that the jnarriage between Sinno Appu and the'first defendant was not invalid under our law, and that the firstdefendant and the fourth and fifth defendants are legitimate heirsof Sinno Appu and entitled to succeed to his estate along withthe first plaintiff, and 1 am for setting aside the appellate judgmentof 10th May, 1900, with costs in both Courts, and for sending thecase back to be dealt with on that footing.