The Hawaiian gazette., 1872-01-24

I never netu treated a. an inIlleulllet l--a--l-
right ba, that il has been Determined By ths
necessities and usagcs Of the nation or race. The
eldest male Of the clan, the eldest son q the
married pair or ell TIE children equally have
( been allowed 70 inherit according to The dcsire
TO keep military ascsndancy. Iaisce aesumuiatiaa
Of estates. perpe,uale great iamiiies. or Prgnote
nearer approach 70 equality. heirs are more
often adopted in Eastern countries whurs Plu-
Hli,y Of wives is allowed. where a hxiiy in the
marriage tie exists, or where ihe property in ths
abssuce Of offspring Or adopted heirs asoheats 20
the state although the civil lav also makss iull
and minute provisions ior this relation. and it is
recently provided lOr By statute 10 Nsssachssiss
and New York
The law Of inhertancs is thus vszied IN df
ierent countries. and is variable 10 the nmo
country. When tAs customs. needs and WISHES
OF people change. their laws o. iuhsrtrace
are likely to change also. Is is genrrilly irue
that the manners and customs Of a psopis as
Of an individual express their character and ei-
tablished convictions, and are incorporated ex-
pressly or BY necessary implication in their posi-
tive law. Customary law may BE- as positive ard
imperative as statutory law. and each rests on
the sanction. ex2ress or implied. Of the law
making power The English common law =
largely made up Of unenacted customary law.--
the ancient rights and customs vhich Kings %
England 50 often were called on 20 dsclsrs that
they would observe. But statutory law is llst .a
point Of time, snd its enactments caanot bs an
nulled BY disused custom. The English s,atut8
Of descent expressly reserves certain ancsnt eus-
tomary modes Of descent English statutes sx-
pressly permit Mohamedaa. HIndco and Gento8
law to be retained in India with English law
But for this statutory reservation. it is bard 10
see how the statutes could have been set aside By
distinct customs and laws Of sa opposite nature.
On the subject Of descent ii does not sesm
to ne that the statutes of this kingdom effect 10
re-euaet or recognize the ancient Hawaiian modes
Of transmitting or devising property. Rights of
adoption as well as rights Of primogeniture are
mentioned ia the resolutions adopted BY the isgis-
laiure in 1916, as the guide % the land Com
mission in settling titles but the same resaia-
tions define and limit such rights to thoss which
shall be established in the Civil Code. thereafter
enacted. That the Civil Code iils % proTils
for the descent ol property either bY rrimogoni-
ture or to heirs appointed under che anc.sut
method, is to my mind evidence that the aw-
makers felt that {. vas not desirable OF else rot
feasible to make just and adequate provisions llr
the complicated relations arising under the old
system. The ancient modes oi Transmitting %
adopted heirs we're fitted Tor a different form II
government, different rotations In d1mestic Hfs
and different tenure of property than nov exist
or are legitimate. Those modes. I think Eara
too caprici0us and uncertain 10 Be termed 14 ~
the word is now understood. or % meet ths
wants Of an enlightened and acquEliVe commu-
nifty, or 70 accord vita the present slaudari 81
morality. There is a deep moral signlicance in
the laws which a nation euacts and rlrtc1ilrIv
in laws regulating the mode Of hol.ne. transfer
ring and transmitting property. Tee brsssut
theory ol inheritance seems to 1e based 1u tie
idea OF marriage according 60 lhe i0rms oi
Christian community. Hsnca have arisen new
duties, obligations and rights under lle -elsfdr1
ss nov understood Of husband. wife parent. cai.I
and The liueai and collateral ties rssu1nr VA
tive customs and ideas concerning the ndorri1n
OF parents or oi children the transfer 0f arl dy
word Of mouth. and many other subjects ID uhirh
legislation fFom abroad has been intrs,lsral. ,-a
undoubtedly az dear aud sscred 10 their uiuds a.
are the neu i0rms OF law. This country presents
a remarkable instance 0f chlG1a 10 tha ars
antedaiing changs in the general usa-as ard
convictions Of the ace. Ths Hawaiian n1lra
leaders, trusting The good sense and Haidm q
their foreign friends d0mesucatsl hers. l1-asea-
Iug the advantages ol a certain. definite aud c1ai-
Ted system Of law and the necessity Of applying
10 the changed circums stances Of ths uatdn =
theory Of law which should foster ths aorumals-
lion Of property and induce i0reirn poHsrs 20
recognize a country ruled IN q secure and con
slstant manner. caused the enactment cf e c1aia
d laws which IN many respects HeTe raii1sslT nt
variance with former national cust0ns eaf n
ldvance Of the usages o. the people at hrzs
Now the statuts is clear which prescri6es the
descent Of property Of persons dying ntesfaia.
1rsf 20 Hneal descendanis and widow lsr1nf I'd
collateral kindred and widow. and % ths hus-
band 10 the absence Of wiiss kindred fsaqs IN
.he absence Of such heirs b The naTa.isn Gov
srnment, Or owner 0f the ahan1aa b esrta1r
The legislators are themselves the beat ems
tors Of the language they use. and ther fasa
declared that the word issue shaii mean ahr
ul lineal desoandants.T Code. Sc Iets
The Statute declares that IN the sbssnos af issus
collateral kindred and widow stn7 inherit Al
ldopted child is neither issus. hnsal dsscaasisat
lor kindred, and see 10 room i1r the Csnft -
ay that the legislature intended rs he usr.Is
.iied % include the words adopted hdira7
! an compelled to deny the poaef Of fhis
Court 70 read this siaiaie according 10 nafiss
deas and usages which prevailed before ths sslsl-
ishment Of tie present system of ro9ernmsnt.
nd which are Inconsistent Eith tks sImpls. a.
ambiguous and consistent meaning Of ils srtirs
wording Of the statute.
Finally, II these statutory aoftls are eoa.fraa.f
o have the meaning attached 70 then b7 anaisnt
aiive casiom, thea the Legislature haze tli..I -
'royIde for the descent q ths property q tts
-iGdred Of the adopted bair and q his .s1p.sss
lmily. II be inherit from both flni5ss. tbsn AZ
is death this taoiOh iahentaaes desse.Ss 10
is kindred. in which ease his alartiqs hlslr
re wronged o. IL desceBis ia he alsufiss
lmily 10 which case bis kia8rsd 0ss their 10.
ertance
As 70 precedsuts Of this Coart. flliv r.esr-
ize their rIndng authority Ehea tbsy Az Sal
ecisions on points submitted for a5siiesi.oa.
I'd not an expression on hypotheGcaf casaa aot
eiors the Court noS Fainzs d a single i1siica a.
hambers or Hisf prins. There afs. beHars. %
reh presidents 70 govern tuis casa.
l repeat ny remark on tbs roint made h tfs
ia0ghan cass Ia the case of tbs Estate df
lis late Majesty Kamsha8sha ~ lhe Co-rtia
aaoo say that LAh0lih5 souid hzs- her1 erfi-
ed - the adopted s0l % isharit' s=sa n hs
ad not taken ondsr win B1t this also So
iere obiier dicfi1l. and j. hardly rseonai.sis