The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1873-09-27
LEGAL REFORM.

FN
Phillips introduced a Bill of Criminal Procedure
while he was Attorney General, which failed for
some reason, although we believe it was favored
by the Bar generally. The history Of our juris-
prudence dates only from 1899, when the first
Bill Of Rights was signed by the King, which
was followed by the Constitution of 1910, and
by the various ordinances and enactments pub
lished in the Blue Book in 1912 by the Rev. Mr..
Richards. In 1916 John Ricord was instructed
by the King and Council to prepare a digest of
laws, which was presented in 1916, and forms
volumes one and two Of our Statute Laws. These
laws show for the first time, the lawyers hand,
although, rs he himself said. They must be
found even grossly defective in numerous re-
| spects,' prepared as they were without a law
library, ard by one man while busily engaged
with other matters. The Penal Code of 1850
next appeared, from the same source. In 1856,
a commission was appointed by the Legislature,
consisting of the late Chief Justice Lee and AS
sociate Justice Robertson, =. to prepare a Com
plete Civil Code, adding notes with reference to
important decisions Of the Courts under the
laws The death of Chief Justice Lee retarded
this work, but it was finally submitted to the
Legislature of 1858 in the form of the present
Civil Code, and was approved in 1859. In 1868
4 compilation of the Penal Code was directed by
the Legislature to be made, and was prepared by
Messrs. Stanley and Davis. 1t is obvious that
much remains 70 be done. That Ignorance Of
law is no excuse, is n maxim which rests on the
violent presumption that all can learn the law.
But how is it if the oracle of the law be dumb,
or give forth an uncertain sound? We will not
| ranifa tho ,unarnp fopina which ta literally
have no law, but will briefly allude to the main
objections likely to be made TO n thorough cOdifi-
cation.
First, 1t is said that no serious trouble has yet
become generally apparent from our present
system, in which our judges are by statute
authorized to adopt such principles Of foreign
law as are - founded in Justice and not OPP
posed to our existing law. To this we answer,
that the Constitution has made the Legislature
the source, and the judiciary the conduit of law
n wise division Of functions, for the rights and
duties Of men should be defined in advance, and
not by rules invoked by the judge for the pur-
poses Of each case. The laws Of Caligula, if
placed 20 high that none could read them, were
nevertheless fixed before the cases arose to which
they were applied. Each foreign legal system
hts u duu hClCCNcs pdIlo viii Nv
Judge to be {. founded in justice" but not so to
another. In this mode of delegating the law
making power, We can hardly expect uniformity
or certainty in our law. If our judges have
been reasonably discreet in applying principles of
foreign law in conformity with the general views
of the community, there is no assurance that
such will always be the case. We ought not to
await serious trouble. That none has yet be-
come seriously apparent is easily explained. We
have not had 4 very large number OF important
civil cases at law, as Equity and Admiralty have
engrossed Il large portion Of that business. The
rules of English Equity ami of general Maritime
Law are tolerably well defined and compact, as
laid down by jurists and courts. But there re-
mains the great body Of law not included within
those branches to be fixed by judges at discretion,
whenever statutes and legal customs are deficient.
The English Common Law, the source of most of
this discretionary judicial law, is so full of in
consistency, absurdity and cumbrous technical
ity, that it is yearly giving way to statutory law
in England and America. Why should we risk
the adoption of its fungus and excrescences,
without it's legislative notifications? Why sad
die ourselves with the complications of 4 legal
system which is no nearer the perfection of hui
man reason than were the notions of human
rights which prevailed in the dark ages? Again,
the half of the community who win their law
cases are not disposed TO find fault, while the
losers if they knew on how weak a basis their
rights rested, probably think that complaints are
useless. The few educated lawyers here have
not cared to devote their energies to the thank
less and ~proftless task of law reform until en-
-,~,ral xrifb tho homo of E1aoaSS EoraioDarG
following native custom, have generally awaited
governmental action IN most matters of reform.
If executive officers see no occasion for change,
all attempts may be checked by the veto power.
Second, it may be urged that no Code can pro-
vide for all contingencies, and legal acumen can
never be dispensed with. This is true, but all
law not fixed by legal custom is written some
where. and all we ask is that it be collated from
the thousands Of volumes and foreign statutes in
which it now lies, and condensed into a Code to
which our people can resort. That a Code can
not be perfect, Is no reason for tOlerating glaring
defects in the law we have.
Finally, it may be said that we have not
money and men for such work. If we have not
men, import them. As for the money, 4 years
saving in the Army Bill would furnish means for
preparing 4 rational and ineligible basis of law
for the whole country. Each year would cause
the money outlay to return to us in the increased
security of all rights which are valuable TO So
ciety. Whatever may be said Of natural rights
and duties and moral obligations, those Of the
most practical value to us are defined and en-
forceable by law.
Our limits permit only an outline of the sub
ject. We hope those will give it thought who
have the means to secure the object desired.