The Hawaiian gazette., 1870-11-30

conscientious motives, and had not the remotest
idea Of acting deceitfulyand in bad faith with the
attorney O. neral or the Government; and this
respondent further AYERS that the high position
and presumed legal learning Of the Attorney
General threw him of his guard, and be presumed
he waSacting legally when the Attorney-General
proposed the said agreement to him. and had no
other idea at the time but that the dispositions
were legal. and could be read on the trial Of said
orlof Peterson. and that if there is any cnlpa-
billiy or blame in tins matter it should rest on
The Acknowledgment, and not on him; for an
icer Of the Crown is presumed TO know the
iaw, and when he does any act which is calculated
to oyeueach prisoner or his counsel by procur-
ing the waiver of constitutional right against
clear principles of law, and then throwing the
blame upon the prisoners Attorney, be is GER
tainly in the wrong
At the hearing, the Attorney-General produced
and read the following entry in the Clerks
Journal viz. July 26, 1870. July Term. Prs'r
Peterson arraigned and pleaded Not Guilty.
! Case continued by agreement" l.. McCully.
Clerk Of fhe Court, testified that when the depO
sitons were taken. some one remarked that it
was very hard that the witnesses hard aboring
men, should be kept in confinement SO long.
already three months; that no intimatioa was
then made by the respondent of his want of au-
thority to agree to the dispositions, and that he
thinks the respondent then asked, Where is the
| prisoner?' to which the Attorney-General re-
piled. The prisoner is not called for"
d. X. Fyfe. Jailor, testified that the respondent
visited the prisoner Peterson and told him about
the dispositions shortly after they were taken.
W. c. Parke, Marshal testified that on the frs'
day Of this Term, the respondent moved that
Petersons case be continued to get further tes-
tmony, but on consulting his client withdrew the
motion.
5. II. Phillips, Attorney General, for the Rule
W. c. Jones, pro Sc, contra.
OPINION or THE COURT BY HARTwEL1., ].
BY the Civil Code. practitioners Of law shall
be summarily amenable to the Courts of record,
and may be fined Imprisoned, or dismissed from
the roll Of practitioners for satisfactory cause
upon the compliant of any party aggrieved by
their malpractice, or for non-payment of moneys
collected by them for private parties, or for any
deceit or other gross misconduct" Sect. 1866
Practitioners Of law shall have control to
judgment and execution Of all suits and defences
con6ded to them: provided, however, that no
such practitioner shall have power to compromise,
arbitrate and settle such ulatteEs confded to him
unless upon special authority in writing from his
client Sect. 1863
The parties to a ara sat may with the con-
sent Of Court, waive the right to a trial by jury
either by written consent, or by oral consent in
open court entered on the minutes" Sect 49,.
No person shall be held 10 answer for any
crime or offence. except in cases Of impeachment
or for offences within the jurisdiction Of Police
or District Justice, or in summary proceedings
Tor contempt unless upon indictment fully aud
plainly describing such crime or offence and he
shall have the right to meet the witnesses who
are produced against HIM, face to face; to pro-
duce witnesses and proofs in his own favor; and
by himself or his Counsel at his election, to ex-
anime the witnesses produced by himself, and
cross-examine those produced against him, and to
be fully heard in his defence" Art. :, Const.
The delicate and responsible duties Of an attor-
Dey-at-law correspond with the extent Of the
powers entrusted to him. He must exercise
good faith in his dealings with Court, clients and
his legal brethren. He is responsible for the
exercise Of a reasonable degree Of professional
skill and for proper diligence 10 attending to his
causes, failing in which or in case Of deceit or
malpractice, be may become liable to the Court
under the statutes cited. or to clients in damages
The respondent waived bis clients Constitu-
tonal right to meet witnesses in open Court
There is large class OF agreements between
Counsel which facilitate trials are Of mutual ad-
vantage, and by which clients are bound. Such
agreements usually refer to matters of rules and
practice, conunuances waivers Of common law
rules Of evidence, Of defects ia peadings. pro-
eesses, rights Of appeal, &c, in which Counsel
are presumed TO know, and to be duly authorized
to represent, the clients interests. But 10 Grim
inar causes, 1t Is unsafe to waive constitutional
requirements. The maxim, Qiiibef potsa re-
HuEciGre .j1'i pro Sc iHfrodaet0. that anyone
may waive rights intended for his own benefit
is restricted to the rights Of the party himself,
and can not affect the rights OF others. The
public are interested that criminal trials be con
Quoted according to the forms Of law Hence,
40 one can waive the presentment aud finding of
an indictment for an indictable offence. Under
our statute, clients in evil suits would no doubt
be bound by agreements of Counsel to waive
jury, but it is doubtful whether party himself
could make valid agreement to waive jury in
a criminal cause eognizable before jury
The result Of the respondents agreement was
that the prisoner escaped trial He says be acted /
iE good faith. and We see 10 reason to doubt his
word. His motion to continue the cause was
certainly Inconsistent with an intention to rely
on constitutional defects 10 the testimony. He /
should have lost no time however in notifying 4
the Attorney General of his subsequent view of /
the law, and Of the course he intended to pursue.
No such agreement should in fast be made with
out reflection upon its validity. aud without cor
sulung the client We do not think thu the /
assumed by the respondent IN thus
accepting the proposition to make this agree
ment, is entirely removed by dividing it. nor can
We see any excuse for an hours delay to inform !
the Aftornav 1aneral IF all the facts in .ba rass