The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1873-06-07
SHALL OUR LAW BE coD1FIED!

49, INV ~
/ Constitution. prescribes the duties Of the several
/ DEPARTMENTS Of Government and gives 4 few rules
OF outlines # judicial proceedings The Legis!a7
tnres have added their biennial session laws, all
Of which must be consulted and collated beiore
deciding what the lawmakers have done. Ii is
ulain tia. the result Of 50 many inexperienced
hands being employed on Statutes which affect
judicial proceedings must be unsatisfactory In
England. q permanent Commission Il engaged IN
examining the workings of the law, and report
ing thereon 20 Parliament, j course which might
be PURSUED here with advantage. But the diff
Guilty 70 which we ask attention is not 50 much
incongruous and hasty legislation, as the want Of
legislation on most of the rules of law by which
our rights are decided. Hawaiian law is rot au-
thoIitatively laid down, nor are it, sources even
pointed out with certainty. We distinguish, 1t
will be seen, between laws affecting the most
general matters, and Law on which particular
cases are decided. Thus the Common Law Of
England, the basis Of most Of the American
law, can be ascertained by competent persons. 1t
is written law. buried as it Is in the thousands OF
volumes Of Reports, Textbooks and ancient
/ Statutes. But that law is not incorporated in
our legal system. What we have, is a Constitu-
/ l4JllL4 ilbFlSipb- LLlN 1bC SuBANALS PC'N- "a
the Kingdom in It's exercise is divided into the
Executive, Legislative and Judicial these shall
alrays be preserved distinct - and a further Con-
8:itutional provision which vests the law-making
power in the Legislature alone. But that Body,
instead Of enacting the law 70 govern us in all
cases which reasonably may be provided for by
law, has seen fit to delegate to the judges its leg
~islative functions IN this regard, by enacting that
% The several Courts may cite and adopt the rea-
sonings and principles Of the admiralty, maritime
and common law of other countries, and also Of
the Roman or Civil law, so far as the same may
be founded in justice, and net in conflict with the
laws and customs of this Kingdom" a proyis-
ional measure like this may have been unavoida-
bic when our judicial system was forming, but it
should not be permanent. However convenient
for Legislatures this transfer of legislative action
may be, we think its results in the end will prove
it to be an expensive and unsatisfactory way of
governing 4 country. The results of this system,
some of which we will indicate, are not at first
apparent to the community at large. Judges
hesitate to urge more action upon an independent
!, department, and fear hasty legislation. Unfettered
t discretionary power seems to them to be better
: than legislative tinkering with rules of law. If
! the country does not call for change, they do not
care to take the responsibility of advocating it.
The Bar dislike to move in Il way that might
5 imply a want Of confidence in judicial action.
= The rest Of the community, if they think Of the
subject at all, do not care to disturb a system
e which seems to them to work well enough while
= conscientious judges administer it, and with any
f others they think no system would be secure. Anc
=, SO it goes on, only the unlucky suitors who LOSE
= their cases, finding fault. People pay their law
yers and judges, gain and lose their cases, and d.
not reflect that thorough legislation would save
them a large proportion of the expense, delay
: trouble and uncertainty Of litigation.
v 1t is no light matter to obtain decisions unde
t English Common Law, to harmonic with tn
t great legal structure which has been centuries 4
8 gether,, and give your judges carte blanche to builC
1 up n system of law from the various legal system
Y Of the world, and sooner or later the result viii
a be 4 complicated, uncertain and inharmoniou
n Jurisprudence. This will occur with the hes
n judicial talent, as long as men differ on question:
r of policy and justice. There is no difficulty abou
r maritime law, for it is laid down by authoritie
. everywhere recognized, and is uniform. But tn,
f Common Law under which we live, should b.
Y defined in advance by authoritative power, which
c by our Constitution, is the Legislature. We DE-
, not mean that a Code can anticipate the law il
: all the complications of human affairs. 1t is sale
: that there are already some two million rules o
y law. 1t is possible, however, to codify the mair
G rules, and to settle in advance most of the point
which now are settled only at the expense o
n %suitors, by a Court the decisions of which can b.
anticipated only to the extent that one man car
: anticipate another's views of what is reasonable
and just.
Y We will illustrate briefly: By English
law, a devise for the use of one for life, remainder
in fee to mis- heirs generally, gives the entire fe'
r to the first legatee. No lawyer can advise &
: client whether such n will would have this efect
, here. 1t took years of litigation to learn whether
0 an heir adopted by early custom has the inherit
ancc under present laws. 1t cost this government
! one thousand dollars to decide whether a magis
trate should pass judgment for violation of &
+ liquor license bond. \ widow has damages fol
, her husbands death caused by the wrongful ac
of another, simply because the Court said they
: would discard the English law and adopt the
=, Civil law on the subject. y written agreement
=. may be sued on if no consideration is named
? therein by Massachusetts law, but not by English
law, and the matter here rests in the discretion of
: judge. \ plantation manager hired for a share Of
: profits comes in as partner, it the Court says so
Deeds between husband and wife are good or bad
as the Court choose to think. By the decision o.
two of our judges, a carrier by sea must pay ship
persofgoods for damages, unless he can show that he
was not in fault and by the decision of another
the shipper must show the carriers negligence
or not recover. y confession made on official in
ducement may cost a man his life unless the
Court say otherwise. These are a few of the
: points which a few lines of statute would have
r fixed in advance. y review of records will show
E that a large proportion of questions could have