The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1873-05-10
TIE PACIFIC
Commercial OOtrtisrr.
SATURDA Y. MAY 10.
HAWAIIAN LAW.


If moral progress is q plant Of slow growth in
u nation, it is still more true that the idea OF
municipal law requires time 70 take root IN the
sentiments and customs Of . people. laws IN
fact do not make the people, but the people
make the laws, which are the Outgrowth and
expression Of the opinions and habits Of the
community. This view was IN the mind Of
Fletcher Of SaItOun, when he said, " If Z man
were permitted to make all the ballads, be need
not care who should make the laws Of q nation
in these islands we have the singular example
Of a foreign system Of law imported in a body,
when the people were able to feel its necessity
but not it's significance. This measure was re-
quired by the interests Of foreigners dOmiciled
here, and also as a means Of preserving national
sovereignty among civilized nations. Were it
not for this guaranty Of individual rights, the
right Of foreign powers TO dictate and control
here would be measured only by their desire to
DO so.
We have adopted a Constitution modelled
largely on that of the United States, with statutes
and rules of judicature nearly identical with
those Of that country and England. But we are
without the substratum, or g hard pan . either
Of English or American law, as a point Of de-
IdItuIG- OuE ItiAdl bDuG II 6uppOscl y specify
all the offences known to our law, which is n
great gain on the system that prevails under the
English Common Law, where even the Courts
are often unable to agree On what acts constitute
an offence. This is as bad as the Edicts Of
Caliguln, placed 50 high that no one could read
them. But we have yet something to DO in
making our law simple, certain and easy to ascer-
tain. IL is true that n large body of Law, relat-
ing to matters like the construction of wills,
statutes, and contracts, rules Of evidence and Of
equity, and matters of practice. cannot be codifed,
but must be determined by judicial knowledge,
sagacity and experience. We owe it however to
the native race on whom this system is imposed,
as well as to foreigners domiciled here, to reduce
our laws to the greatest possible simplicity and
certainty consistent with the needs Of justice, and
to leave no unnecessary margin for the doubtful
influence of judicial legislation, evolved from the
inner Consciousness of judges.
The records show that q large part of our
judicial work consists Of probate business, to
settle the estates of deceased persons. Most OF
these cases, among the natives, are solely for the
purpose Of ascertaining the heirs Of kuleanas Of
Land In probate law, our statutes are strangely
insufficient, and the practice of the various Courts
is needlessly lacking in uniformity and certainty.
Ii is well known that Notwithstanding the recent
date Of our original land tenures, it is almost
impossible to find how far titles are at any time
affected by probate DEGREES. To illustrate these
remarks, take any ordinary native case in pro-
bate, with no debts to pay or collect, and merely
a decree Of heirsbip wanted. Why have the
useless and expensive process of administration
with advertised notices of petitions, appointment
of administrators, and further notices of hearings
to allow accounts and distribute the property?
The little personal property may thus be easily
dissipated. If debts exist which cannot be paid
from the personally, and a sale of land therefor
is sought from the Court, there is not a statute
The sale has to be made under the supposed
inherent powers of equity, but without the usual
equity rules of procedure. And if the order OF
sale or the decree of heirship be made, there is
no provision requiring registry of such decree, so
that purchasers can ascertain the title. Estates
are settled in probate on the circuits where the
deceased persons last lived, or in the Supreme
Court, for no law restricts the probate iurisdic-
ton of the latter to the Island of Oahu.
1t is high time that these things had public
and Legislative attention. An inexpensive pro-
ceeding to quiet land titles claimed by inherit
ance, returnable at regular terms of Circuit and
Supreme Courts, with a provision for recording
final adjudications with the Registrar, would do
away with a large proportion of native probate
cases, and facilitate the work Of investigating
land titles. A statute authorizing sales of land
by administrators, would fix the title by such
sales beyond cavil. Each form of proceeding,
notice and order in probate, should be fixed
uniformly in all the Courts, and prepared for
ready use by any intelligent person, SO as to
avoid much of the present expense in such
matters.
The next session of the Legislature will give
an opportunity for any well instructed member
to serve his country by obtaining legislation on
these branches of Hawaiian law.