The Hawaiian gazette., 1881-07-20

Honor should nov decide that the court Is ically
constituted. and II Dubois should he convicted.
the same question will present itself Rs 30 the le-
sal constitution 81 the court IN Ranco to hear e1
ceptious that may be taken AZ his triSL will
direct your HonorS attention TO the tact that the
defendants about % be tried are Of different ma
tiOnahties. Dubois is an American citiren. Father
tarkin Is British subject, II tried and punished
hN court not properly constituted. il might lead
to future complications With these countries, both
Of which have q jealous regard for the legal
constitution of their courts.
Nj. Prsston. Counsel Tor the Crown. opposed
the motion. said;
This motion carries its own answer on its face.
Ii j. headed IN tbs supreme Court, and asks which
court to dischanse the prisoaer the ground,
that because. there Is a vacancy in the office Of
Chief Justice, there is no Suprcme Court accord
ing 10 the Constitution.
changed. he mus be taken back to gaol. The
motion IS 100 late. Il should have been made be-
fore the plea Of not guilty, be has submitted 10
the jurisdiction Of the Court.
The case IN the third Hawaiian Reports Is an
express decision against the prisoner, and YOUR
Honor sitting alone will not oVerrulc decision
made by the Chief and Associate Justice Of this
Corrt-
there a vacancy occurred through death Of the
first Associate Justice, which vacancy was not
filled for a considerable time.
AlthoGyh the Constitution provides that the
Supreme Court SAli consist Of a Chief Justice,
and not les than two Associates justices. Article
- SAYS, that the Kings Cabinet SAHh consist of
the Minister Of Eoysign Affairs, the Minister OF
the Interior, the Minister Of Finance and the
Attorney General Of the kiRedom, and il has been
held tha. during a vacancy IN the Office OF
Attorney General one OF the other Ministers may
Be appointed % iairrilz.
Section SIS OF the Civil Code provides for the
performances Of the duties Of Chief Justice, durng
absence, Illness vsicancy IN the Office, and Is
not contrary 20 the Constitution, and appears TO
have been enacted TO meet an emergency Ike the
ms Jurv has been proueriy drawn and sum
moned during the life OF the late Chief justice
and If not no objection can be taken by TIN
motion.
Ii being conceded that some time must be take
TO NIL up the vacancy il : only question for 81
execution. and it cannot be held that ON the deat
Of Judge, whose powers On the Court mH'
cease
Mr. Austin stated he was not prepared to spea
al any length upon the questions; he had not es
amined It sufficiently. The question was yer
. serious one; he agreed with the motion.
Mr.. justice Judd ssiid he had civen the matte
serious attention Hs would take the motion ia'
consider ration. When the Court reasSemoled sute
the noon receSs Mr. Justice Judd gave jgdgnei
Is follows, oyerrUiIng the motion:
The prosecution moved THAI A jury be lnapir
neled 10 Try the case, and shereupon ms eouns
moved for the discharge Of the defendant, on q
ground shat hy the death ot the late Chief Justi
Harris. and lie failuu 10 al the Vacancy therei
uiads there ! now 10 supreme Court as provide
hy the Constitution.
II is objected by the Crown attorney that the q
fcndant having pleaded 70 the Indictment in th
Court. before the same Justice since the death
tie Chief luS-ice. he Is nov concluded from O.
jsciing 10 the jurisdiction Of the Court TO which
has thus submitted himself. IL appears to me tn
a question as vital this affecting the cunstltt
ton Cf the Court itself. must be heard, az Wha
ever Stsce IN the nrOCet dlngS 1t may be made. Ar
1t must be heard by the Court itself. = alwa,
must be In the Courts Of the last resort IN eve
State thar questions affecting the jurisdiction ~
powcrs % that Court must be decided by that ve
Court. In the event. however,, OF the Court d
Gliding sgsinst is exercising the power or JuFsl'
tiun invoked on one side and oAlecied 10 on q
other. il would not De possible for the Court
exercise that function. In such case Il couldun
decline 10 exercise the function or entertain u
jurisdiction II the Court, as now constitute
should hold that IL consequences Of the death
the Chief Justice, and the position being So
Z vacant there is no Supreme Court and no tribCn
10 procesd With the trial Of this defendant,
could not undertake 20 discharge the pFlSone
but would decline 10 take any acton In the prem
ises and be zouid remain in custody.
The question presented Is a serious one to Il
defendant and 10 the Executive, as well as 10 q
Court The Consultation sranted by the King
binding upon the SovereizI,s Who reign under /
Article IS reads: The Judicial power of u
Kingdom shall be vested n one Supreme Coui
and in such inferior Courts as the Legislatul
may, from time to tilue eStabiish; and
Article 65. :. The Supreme Court shall consis
OF Chief Justice and not less than two AssOciaI
Justices. any one Of vilom may hold the Court"
/ regard Il - imperative upon the Executive {
fnlfl this requirement. OF the Constitution aRd
Is TO be pTsSurled thst II viii not suffer any 81.
rf1s1nabls delay 10 occur n filling the vacancy.
But It Is equally clear that a temporary vacancy
II the office CT Chief Justice Is recognized by the
the law possible 10 occur
Sertiou 80 of tie Civil Code reads; "In case
Of the shSenc or sickness Of the Chief Justice, u
Of vacancy IN tEat of6cs all the duties thereof,
both Chambers and IN BAlc1. shall be performed
during such chssnce, sickness OK vacancy by tins
First Associate Justice, or such other Justice as
tie king may appoint for the time
This Law assumes 1le eIlstencs OF a FIRST As
Sociars Justice upon whom would ceTolye vhatevef
PECULIAR functions the Chief Justice only can per
form. and II also alSGmsS the existence Of some
other Associate Justice whom the hing may ap-
Tsout 70 perform the duties Of Chief Justice The
duties Of the Chief Justice IN Chamber or IN banco
are uo< 10 Inherent, N consequence Of suhss-
d.alt Iegisiariol thaa those Of the AssOclate jus
tees u1t there fsT functions which must be
performed By The ohief Justice alone, and i Is 10
these alone rs head q the Department OF the Ju-
tiiriarT 10 which this section OF tbs Code refers
Thz sElcs question bsfo-e Us IS whether the
present trial can Be procsetsd With.
iEe Constitution. article -, says that any JUS
tice of the Saprene Court may hold the CouTt; the
Chief Justice either OF the Associate justices
Each Judge Of the Court has a separate c1nnInis-
sion These are not issued 70 three parsons JOINT.
Il. 50 that the death OF one would destroy the eI-
is-snce CT the entire Court
There Is no recognized solidarity II the Court
50 that on the appointment OF new justice neT
commissions would have TO be isslHd 10 the re
death Of one Tls11bez Of the Court does not annul
the appointlneus Of the others, and therefore the
death 0f one dos no. an1ul curtal the Judicial
functions with which each Judge may individually
hs clothed. nor the jurisdiction which each one
en- sIlElT exercise
Nsz The Constitution distinctly allows one mem
br Of she Court % conduct IT, and s3l0ng as tlsre
i one member Of the Court 10 hold Il, It can be
held
Al analogy betEsen the zuTis Of the C0ustitu-
non authorizing the appointmeut Of a Cabinst,
and ttose cousti-u-ing tha Slpreule Court Is sug-
ges-5C- ard have no u1Eul t1t On tLs vacancy OF
one of the Cabinet O.car. the pectITe duties u
those Eho rsu1sin can lsEzllF be eIscatsd by them
resqsctiTelT- Upon the qczstIol ~ 70 ghethes the
CoUTs- when Il shall Be called upon % SIT n Banco,
Is c1zstituts according 30 lax for that purposs,
shalI have nothing 70 say until the question arIses
TIE Co1rt rTould then Be undertaking q different
jurisdiction from that nov invoked
The jlry hzs bsen regularly draEn, according 70
s-aszte. TIE other offers Of the Court are here.
67ly appointed seso-dIag 20 laF- The Co-,stlt1-
ton siys tLss any Jasslee Of The Court naE hold
the C0Er- and one i n0E PressIit. and therefore
tie CCTt 5 legally constituted 70 tTy this case
and ms OTe-Tals the notion
sIosD.r. July 18th.
On the s-izI Of Edzard RhOdus, Mr. B. d.
Austin, his CO1nssl, zade preliminary objection
10 the Jurisdiction Of the Court AID On that ques-
tios II Substance, sid:
II fHs Cssrf gIszzs- For the parposs Of this OBJ
l--o-1 slz1 s5s-Ene II % y aQl-lEle4 t-l-i tle
Chef J1ssics Of The COurs died on the 2nd day Of
Jlly. and that although the auth0rIiy 70 appoint
IN lnDedtats s-eoess9r exists, no Successor h2s
vet be~a appointed and the Supreme Court, As n0z
c1ns-zt1tsd consists Of but sO AssOcizts 1stices-
By Article - Of the Constitufion. /. the Supreme
Co1rt sha1 consist Of Chief Justice, and not
Iesz than tE0 Associzts y1stioss-
think this cia1s= makes the present. o-Ezuizs-
ton Of the Co1rt inconplete and that Il . a all
events. sincz that 10 czsesin BslcO can Be COEsti
fzti01sIlg hard
b Arfisls Il Of The coassitutiou= Esery mem