The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-08-21
Supreme Court of the Hawaiian Islands
July Term, 1880.
KEKULA wv AND HUSBAND VS.. PIoEIwA AND PAKU.
IninIn,1 nf he 4 o,lrI hI IIRd

KEKULA wv AND HUSBAND VS.. PIoEIwA AND PAKU.
Opinion Of The Court By Judd, J.
This is a suit of ejectment for the possession OF
one undivided hall nj Il tract of land vi one hun
dred and seven acres in the district OF Koolau
Maui. .rHnted To one Manu- by Royal Patent No.
3OG6. and the pItintIf claims the same a. beng
IL daughter of ManL. now deceased. The de-
ie"dant. Pi"eiwa. L. Il minor, aud hi- guardian
ad Item dIsclaIIned ali right vi Possession TO tue
land.
The defendant, Paku, made no answer and was
defaulted. Upon the testimony of the plaintiff,
presented ex parte to the Court, it appeared that
his overture with her, he cohabited with a
woman named Paku, by whom he had the plain
tiff Kekula. On the death of Lohelohe Manu-
married Paku in 1S47 or 1S48. 1t appears also
that Manu- had a son Moke, by his first wife,
Lohelohe, who now survives, and who. could be
entitled to inherit from his father an interest in
this land.
The Legislature of 1866 passed an act in these
words "All children born out of wedlock, are
hereby declared Legitimate on the marriage OF the
parents with each other, and are entitled to the
same rights as those born in wedlock." A
The question reserved for the consideration OF
the Court is whether Kekula Is capable of IN
heriting from Manu-. 1.-The doctrine of the
l~egitimation of offspring by the subsequent mar
riage of their parents is of Roman origin, intro
duced by Constantine, to put down that matrI-
mOniaI concubinage which had become 80 uni
versai in the empire, and the canonists based the
law not on general views of expediency and
justice, but upon a fiction, in order 10 reconcile
the new law with established rules for assum-
ing that as a general rule, children are not legi-
innate unless born in lawful wedlock, they de-
clared that fchOne JuTIS, the parents were mar
ried when the child was born. But the Scotch
Courts have placed the rule once more wheresits
imperial founders left it, namely, on the grounds
OF general policy and Justice" LegitImation is
thought to be recommended by these considera-
tiOns Of equity and justice, that it tends to encour-
age what is at first Irregular and injurious to
society into the honorable relation OF lawful ma
trimOny and that it prevents these u~nseemly
disorders in families, which are produced where
the elder born children Of the same parents are
left under the stain of bastardy, and the younger
enjoy the status of legitimacy Schouler's
Domestic Relations, PIP. 308-309.
This doctrine of the civil law has been adopted
by many States of the American Union, but it
has not found favor IN England. Z Clark and
Finley, S95.
Taking either view of the philosophy of this
law, whether by a fiction Of law it presumes that
the parents were married at the time Of the birth
of the child, or whether the law is to be sus-
tanned because it encourages lawful matrimony,
we cannot see how it can be applied to the status
Of the plaintiff in this case. Her father had a
lawful wife living when the plaintiff was born to
hun OF another woman. he was already bound
IN the ties of lawful matrimony.
The legitimation of offspring born OF an adul-
ferrous connection by subsequent marriage does
not encourage what is at first irregular into the
honorable relation of lawful matrimouy, but it
would tend directly to encourage and sanction
adultery itself. 1t would tend to inspire those
who have formed such an adulterous alliance
with a desire to put their lawful partners out of
the way or to get rid of the obligations of mar
rage in some manner. The law was intended to
apply only to those who, free from all obstacles
in the way of marriage except their disinclina-
ton to conform to the law, have formed an alli-
ance from which children have resulted and who
afterwards satisfy the demands of society and the
law by complying with it. In France, where
this rule is adopted, it expressly excerpts the cases
of children who are ofsprings of incestuous or
adulterous intercourse. e Kents' Com. ) 210.)
We have failed to find n case where a similar
act has been held to Legitimate offspring Of an
adulterOus intercourse. Any other construction
of this Act would be subversive of good morals,
and we cannot think that the Legislature so in
tended it.
The plaintiff takes nothing by her complaint.
s. B. Dole for plaintiff, A. S. HartwelI for
defendant.
CHAs. C.. HARRIS,
a. FRANCIS JUDD,
LAWRENCE MCCUIIY