The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1872-05-11
Parliamentary sagacity.

Parliamentary Sagacity.
On Monday last the Special Committee on the
resolution OF Mr.. Carter that the seats of Messrs.
Hitchcock and Nui, members elect from the
Districts of HIlo and Makawao. be declared
vacant, being held contrary to Section 8lS OF the
Civil Code, returned a unanimous report against
the resolution.
The following are the existing enactments bear
ing on this subject
Article 20 of The Constitution. sThe Supreme
power of the Kingdom in its exercise, is divided into
the Executive, Legislative and Judicial, these shall
always be preserved distinct, and no Judge of a
Court OF Record shall ever be q member of the Leg
islative Assembly,"
Article Ga of the Constitution. says 1.-The Judi
cial power of the Kingdom shall be vested in one
Supreme Court, and in such Inferior Courts as the
Legislature may from time to time establish
Section SlS of the Civil Code, says " No person
holding a scat on the Bench of the Supreme Court,
the Circuit Court, or any Police or District Court
shall be eligible to a seat ia the House of Represent
atives of this Kingdom
The member elect from Hilo is a Police Judge
and the one from Makawao a District Judge.
The reasons given by the special Committee for
holding that these two Judges had a right to sit
in the Assembly are first, that the last paragraph
of Section 20 Of the Constitution snecially exclud-
ing Judges OF Courts OF Record from the right
to sit, is an absolute limitation and explanation
Of the first part of the same Section which states
the general principle, and thus specially excerpts
Police and District Judges from ineligibility.
Secondly: that Article 81 of the Constitution
defines the qualifications of Representatives, and
any Act increasing or diminishing these qualifi-
cations or excluding a person because OF his pro-
fessiOn or calling, would be void. The absolute
nonsense of this argument is seen when we find
that by its principle the whole of Article 20 of
the Constitution becomes void, and Judges of the
Supreme Court, the Chancellor and even the King
himself, could thereby run for the Legislature and
if elected sit as Representatives.
Thirdly that Section 818 of the Civil Code is
repugnant to the Constitution where it does not
exclude Police and District Judges by title, and
therefore void.
This extraordinary report was adopted by the
Assembly with only two or three dissenting votes,
and the two Judges now sit as Representatives,
approved in plain opposition to the Constitution
and the laws.
Let us see if Section Sl8 of the Civil Code is
repugnant to the Constitution and therefore void.
Ii was enacted under the last Constitution and
was a consistent statement of its principle on this
subject. Now Article 6 of the present Constitu-
ton quoted above is an exact transcript, word for
word Of Article 81 of the last Constitution. The
corresponding statement in the old Constitution
to Article 20, quoted above is as follows " Arti-
Gle 23.-The Supreme Power of the Kingdom in
its exercise is divided into the Executive, Legisla-
tive and judicial these are to be preserved dis
tinct the last two powers can never be united in
any one individual or body Thus we see the
two Constitutions agree absolutely and positively,
in nearly the SAM words with undOubted agree
ment Of TERMS, on the great principle of civil gov
eminent that the three departments OF the state
shall always and entirely be kept distinct. And
they both hold as absolutely, that Judges of all
the law Courts without exception, are members of
the Judiciary. No ingenuity of logic, no eloquence
OF hair-splitting ability can show otherwise; it is
the plain conviction that must result from a calm
examination. And if the two Constitutions are
alike on this point, Article SIS. which is not re-
pugnant to the one, cannot, of course, be repug-
nant to the other.
The question as it came before the House is
purely one of law, but a consideration OF policy
might properly have assisted in the examination
into the meaning of the letter of the law.
The arguments which came up in support of
the report in the discussion which followed, were
shallow and little to the point. Mr.. Harris ex-
PLANTATION as to the meaning of the Constitution
on this subject was more amusing than important,
rumor giving him the chief place in the c~onstruc-
ton of that ingenious document.
Mr.. Philips expressed himself as uncertain in
regard to what were Courts of Record, and so he
gave the benefit of his doubt to the member from
Hilo and against the expressed principle of the
! Constitution.
We confess that we have no admiration of the
Constitution, nor of the manner of its propaga-
ton, but as the Assembly meet under its provi-
sions and promise to support it in their Legisla-
tive work, they are expected to treat it with
some degree of respect.
The speech of Mr.. Carter against the report of
the Committee was clear and u~nanswerable and
consequently was unanswered.
The settlement of this very important question
is certainly not reassuring to our hopes for an
intelligent and disinterested decision upon other
questions of importance to come up during the
session.