The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1870-01-22
The Composition of the supreme
Court.

\ case cam up in the Court on Thursday last,
which illustrates the inconvenience, to say tie
least, which might arise to parties itigant by the
bench not being full, according to the require
ments of the Constitution. The first clause OF
article % and article 60 of that instrument read
ART. 65.-The Supreme Court shall consist of a
Chief Justice, and not less than two Associate JUS
tees, any two of whom may hold the Court.
ART. 69.-The decisions of the Supreme Court,
when made by 81 majority of the Justices thereof,
shall be final ard conclusive upon all parties
The case Of the King as. Henry Cornwell
indicted for nuisance, in closing up a read, was
under consideration. 1t had previously been
tried twice in the Circuit Court on Maui, result
ing adversely to the defendant and came up
before the Supreme Court on exceptions. On
Wednesday the Attorney General moved to take
up and argue the exceptions, which was objected
to by Mr.. Stanley for the defendant, on the
ground that there were but two judges on the
bench, one of whom had twice heard the case.
On Thursday the following exceptions were for
mally presented to the Court
Before the Justices of The Supreme Court, jan
uarV term, 1870.
And now comes the defendant, by his attorneys,
and objects to proceeding with the argument on the
exceptions in the above entitled cause. before two of
tiC oSAASSo Va NS BAS IA NHN - VhOLh Aho
tried the case twice, and rendered judgment in the
Supreme Court on exceptions heretofore taken, and
for the reasons:
That the hearing should be had by the Supreme
Court as constituted under article 65 of the ConSti-
tuition of 1864.
That no final and conclusive decision can be bind
ing upon the parties, when rendered by two justices
of the Court, the case not being heard by the full
bench, as ~ntempla in article 50 of the Constitu-
ton Of 1864.
That if the Court with but two justices should not
agree in a decision for defendant, judgment would
stand, and render the exceptions Intellectual.
The Attorney General said it was to be regret
ted that there were not three judges to hear the
case, but contended that ty former rulings of the
Court, two could sit and hear exceptions from the
decisions and rulings of one Of that two. lie
referred to the Clark murder case, when the
judge who presided at the trial, and the Chief
Justice, ruled that they two constituted the
Court to hear exceptions to the rulings of the
former. He saw no reason why this case should
not go on, and substantial justice could be done
as we'll as if three judges were on the bench. If
it were to be held that two judges, in case of a
vacancy on the bench, could not sit in banco, the
Court would in effect say that it was no Court,
and that would be absurd.
Mr.. Stanley contended for his clients rights
under the Constitution, and particularly article
90. In the murder case referred to at the time
of Judge Robertson's death, there was q vacancy
on the bench, and under article IS of the Consti-
tuition, there was absolutely no Supreme Court
existing until the vacancy was filled. There can
not be a majority unless there are three judges as
contemplated and required by the Constitution.
In this case no apparent haste was necessary. AS
it was commenced in February, 1867, and three
were had whereas the common road had
slumbered, under an injunction out of the
Court, nearly three years. He asked
that this case should be continued until the return
Of the Chief Justice, when the bench will be full.
The Court took a few minutes to consult
when Judge Hartwell gave their deci-
sion, that, while there could be no doubt as to
the previous rulings of the Court in former cases,
as urged by the Attorney General, there could
also be no doubt.of the right of a party to claim
the Constitution, a decision of his case by
L majority of the Court. The entire argument
If council for defendant. however, was not ad-
to be sound. But as a matter of discretion
md convenience, the Court, in this instance,
granted the continuance asked for.