The Hawaiian gazette., 1871-05-03

VIII oe seen tnat It's nrst section merely enum
crates causes of divorce, the same as under the
previous law. Section provides that She Su.
preme Court shall exercise jurisdiction in cases
on Oahu, and that all such cases shall be regularly
entered &c. The remainder of that Section re-
fers only to cases so entered, and to divorce pro
ceedings before the Supreme Court So Section
3 provides that all proceedings for divorce shall
be commenced by libel &c, and the remainder
of the Act unless in the repeating clause in
Section H. applies expressly to libels so iRsti
tlted before the Supreme Court, and not to pre-
vious cases begun at Chambers. In view Of the
express terms of the Act, and of the general
provisions of the Civil Code, saving the rights ol
parties in pending suits, l am clearly of the
opinion that this Act was intended to be pros
pective In reading the clause which repeals all
Acts authorizing divorce cases to be heard at
Chambers, and all Acts and parts of Acts incOn.
sistent" Herewith, my inference is not that the
Legislature thereby intended to cut off the rights
Of parties in pending cases. but on the contrary,
that it was deemed that the Civil Code fully
saved their rights. have no hesitation in de-
caring this to be the correct view, in the present
case where the new Act would destroy the right
of action.
But if it were held that this Act in fact
repeals all the previous Statutes in favor OF
pending cases, then such repeal as far as it
destroys the present hbellants right of action,
is opposed to the spirit and letter of the Consti-
tuition, which declares that mo retrospective
law shall be enacted" As for the argument that
parties have no right to any peculiar form OF
remedy, or to the continuance of any particular
tribunal, it may be considered in cases where it
applies In this case, it is enough to say, that
all remedy would be destroyed, and that the
tribunal before which it was brought is not
abolished. The Justices of this Court still sit at
Chambers, but their jurisdiction over divorce
causes is for the future transferred to the Court
in term time If an Act which destroys the
right Of action of parties in Court, depriving
them of their remedy and furnishing no other in
its place, is not retrospective Legislation, in its
most odious FORM in civil cause, l am at loss
to know what would be a retrospective law.
Nay, more, what would this be, but assumption
by the Legislature of Judicial functions, to de-
eide causes before the Courts? Would the case
be any stronger If the Legislature should enact
that all actions pending in Courts should be dis
missed unless brought within six months after
the right of action accrued, or that in no pending
case should any statute of limitation be pleaded
in defence? / can take no other view than this,
unless that legal securities for life, liberty and
property" whether provided by Statute, by the
Constitution, or by the general principles of law
as laid down by all writers on jurisprudence, are
mere fctions of the mind, which Judges or
Legislatures may set at naught as they like.
But decent respect for legislative wisdom and
sense of justice forbids me to suppose they in
tended to destroy or impair any right in pending
suits.
If this be deemed useless refinement on Con-
stitutonal questions, can Only say that the case
presents the points, aud that I donbt the possi-
bility of making the fundamental law too clear
and imperative 1 have appended a note of
cases on laws which affect the remedy.
The majority of the Court do not give any
opinion on the Consttutionality of the Act las
affecting this case) as in their view it is unneces
sary by reason of its prospective nature, under
the provisions of the Civil Code concerning
pending suits.
The Judgment of the Court is, that the excep-
tions are sustained, and the cause remanded for
judgment.
w. C. Jones for the Libellant.