The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-07-16

~ Cne 1urlSuICS. II On ln6 ~
to which he has thus submitted himself. II
appears to me that a question as vital as this
affecting the constitution of the Court itself
must be heard, at whatever stage III the pro
ceedings it may be made. And il must be heard
by the Court itself. 1t always must be in the
Courts of the last resort in every State thai
questions affecting the jurisdiction and powers
of that Court must be decided by that very
Court. In the event, however, of the Court
deciding against its exercising the power OF
jurisdiction invoked on one side and objected to
on the other, it would not be possible for the
Court to exercise that function. In such a case
it could only decline to exercise the function or
entertain the jurisdiction. If the Court, as now
constituted, should hold that in consequence OF
the death of the Chief Justice, and the position
being still vacant, there is no Supreme Court
and no tribunal to proceed with the trial of this
defendant 1t could not undertake to discharge
the prisoner, but would decline to take any
action in the premises, and he would remain in
custody.
The question presented is n serious one to the
defendant and to the Executive, as well as to the
Court. The Constitution granted by the King
is binding upon the Sovereigns who reign under
it. ARTICLE GA reads 1.-The Judicial power of
the Kingdom shall be vested in one Supreme
Court, and III such inferior Courts as the Legis-
lature may, from time to time establish, - and
ARTICLE 65. THE Supreme Court shall con-
sist of a Chief Justice and not less than two
Associate Justices, any one of whom may hold
the Court
] regard it as imperative upon the Executive
to fulfil this requirement of the Constitution,
and it is to be presumed that it will not suffer
any unreasOnabt e delay to occur in filling the
vacancy. But it is equally clear that a tempo
rary vacancy in the office of Chief Justice is
recognized by the law as possible to occur.
SEC. $40 of the Civil Code reads, "In case of
the absence, or sickness of the Chief Justice, or
of a vacancy in that Office, all the duties thereof,
both at Chambers and in Banco shall be per-
formed during such absence, sickness or vacancy
by the first Associate Justice, or such other JUS
tee as the King may appoint for the time.
This law assumes the existence of n First
Associate Justice upon whom would deyolve
whatever peculiar functions the Chief Justice
only can perform, and it also assumes the exis-
tence OF some other Associate Justice whom the
King may appoint to perform the duties of Chief
Justice. The duties of the Chief Justice in
Chamber or in Banco are now no different. IN
consequence of subsequent legislation, than these
of the Associate Justices-but there are a few
functions which must be performed by the Chief
Justice alone and it is to these alone as head of
the Department of the Judiciary to which this
Section of the Code refers.
The exact question before us is whether the
present trial can t. proceeded with.
The COnst. Art. 60 says thlt any Justice of
the Supreme Court may hold the Court: the
Chief Justice, or either of the Associate Justices.
Each Judge of the Court has a separate Com
mission. These are not issued to three persons
Jointly, so that the,death of one would DESTROY
the existence of the entire Court.
There is no recognized solidarity in the Court,
so that on the appointment of q new Justice. new
Commissions would have to be issued to the re-
naming Justices who continue to hold office.
The death of one Member of the Court does not
annul the appointment of the others and therefore
the death of one does not annul or curtail the
judicial functions with which each Judge NAV
individually be clothed, nor the jurisdiction
which each one can singly exercise.
Now the Constitution distinctly allows one
member of the Court to conduct it, and so long
as there is one member of the Court to hold it,
ii can be held.
An analogy between the words of the Consti-
tuition authorizing the appointment of a Cabinet,
and those constituting the Supreme Court is
suggested, and | have no doubt that on the
vacancy OF one Of the Cabinet officers, the res
p~ective duties of those who remain can legally