Year: 1875

!


The bellAnt, Hawaiian woman, files peti.
tion for the annulment Of her marriage with the
ibeIlee, Chinaman, alleging that she had been
married to the libeee 10 this country on the 18th
day Of Dec. 1870, but that the libellee. All Fai,
had been married previously in Canton in China,
and that the wife which he then married is now
living and has never been divorced and therefore
remains his lawful wife.


The petitioner asks that her marriage with the
libellee may be declared null by the authority Of
the l3I5th Section of the Civil Code, which
reads as follows:


"A marriage may be declared null on. the
ground that one OF the parties has an undivorced
husband or wife living on the application Of
either Of the parties during the lifetime OF the
other, or on the application Of such former hus-
band or wife"


The l284th Section of the Civil Code reads as
follows:


:" In order TO validate the marriage contract it
shall be necessary that the man shall
not have at the time wife living"


1t appears from the whole statement of the
case, that both of these parties are anxious to get
rid of any obligation that may have been upon
them by reason Of their alleged marriage. To
this end the libellee in this case, some months
ago, filed libel against the libelant, but his Pc
titon was denied by Mr.. Justice Judd on grounds
which we're deemed sufficient By him, and among
them, that the man knew Of his previous mar
riage il any existed, at the time Of contracting
this aud should not be relieved from the ef-
feet Of his own wrong. 1t follows, as a matter of
course, that neither of these parties have any in
terest in defending this suit, which imposes upon
the Court the necessity Of watching narrowly for
the right.


On the 10th of May 1874, the Legislature
passed the following rather peculiar enactment


" Be il enacted, &C., Sec. l. No marriage OF
q Hawaiian woman with Chnaman shall be in-
valid by reason OF previous marriage of such Chi
naman IN China; provided that such marriage
shall have been unknown to such Hawaiian wo-
man at the time Of her marriage.


Sec 2. ALI laws inconsistent herewith are
hereby REPEALED"


Mr. Justice Harris intimated at the hearing
before him. that be was of the opinion that this
enactment was void as being contrary to public
policy and sound morality. But it was evident
that if the enactment had any binding effect the
petition must be denied, aud that as the Supreme
Court would sit in Banco in few days, be
thought it most for public justice that the petit
tion should be denied on the authority of that
enactment, from which decision an appeal could
be taken, and the validity or invalidity of the
statute be authoratively determined and as it
would be Of no use to go into the case very
thoroughly, because that, if the enactment was
held TO be binding, it would be labor lost He
was therefore willing to take the testimony taken
in the former case between the same parties as
though it we're given 10 this, and deny the petit
tion on the ground Of the statute, and take the
opinion Of the Supreme Court on the point of its
validity.


1t must be apparent to any person that if the
Chinese marriage is valid and this law has any
effect, CHIEAMAN may have two wives in this
country, for on the advent of his Chinese wife |
into this country, aud claiming him for her hus-
band, her marriage would be held valid if the case
of Wal See and Ching See VS..


is to be, and the Hawaiian woman's |
marriage is not to be declared invalid, thereby |
Bigamy is established in favor of Cinnamon.
Now, if in favor of Cinnamon and not in favor of |
any other race Of men, then there is clear viola
ton of the 18th Article of the Constitution,
which reads:


The King conducts his government for the |
common good and not for the profit or interest
Of any one man, family or class of men among his
subjects, that is to say, laws have to be passed
bearing upon all persons alike"


But if the repeating clause in the Second Sec
ton is to be taken literally then the provision of
the l2s4th Section, previously quoted, is re-
pealed for it is clearly inconsistent with the Act
under consideration, and it will follow, that it is
no longer necessary in this country, in order to
validate the marriage contract, that man
should not have a wife living, that he may take a
wife here notwithstanding that he has wife liv-
ing: it is likewise inconsistent with Chapter 13
Section of the Penal Code, which defines and
Furnishes POlygamy, and would operate to repeal
it.


This could not have been the intention Of the
Legislature the Act is inconsistent with the
provisions Of the Constitution and contrary to
public policy and sound morality, and by virtue of
the authority vested in this Court, by the s24th
Section of the Civil Code, must be declared null
and void, and is hereby SO declared.


The cause is remanded TO the Justice before
whom the case was brought for hearing upon the
facts and be will take the testimony in the case
fully, without reference to the testimony taken in
any other case between the same parties.


]. p. Green for libellant.


A. S. HartWell for lbellee.


ELISHA 81. ALLEN,


CHAs. G. HARRIS,


A. FRANCIS JUDD,
Honolulu, July 2sth, 1875.