The Hawaiian gazette., 1890-04-15

a Cabinet does not govern there, although
the heads of departments are popularity
termed the Cabinet. The President Is
himself responsible in the exercise OF
his functions. In regard to Great Bril-
tain then we may safely say that It is q
thing unknown in theory and unheard
OF in fact that majority and minority
Of the government should submit their
advice to the sovereign. A member Of
the government not OF the same opin-
ion with his colleagues would either
silently acquiesce or II the issue were
important would withdraw from the
Cabinet. The Cabinet could present
but single opinion, formulated by the
Prime Minister.
1t is evident that no judicial opinions
bearing directly upon the case submitted
can be found for no such case could be
presented to Court in England or
America. But as the Cabinet is here
established by the Constitution and en-
powered by statutes, the Justices OF the
Supreme Court, being duly asked, may
give their Interpretation. 1t seems to
us to bear only one reasonable construc-
ton, and that is that the advice and
consent or approval of the Cabinet must
be single, but not necessarily unani-
nous.
The most eminent publicists, such as
Grotius, Savigny, Domat, base the auth
ority of the majority on Natural Law.
Boyer, an approved writer on universal
Public Law, quotes Savigny as saying
''that the rule of law making the will of
the majority that of the body in its CO.
operate capacity, is founded on Natural
Law. For to require unsnimity would
be to impede the acts and will OF the
body corporate: and the rule is pre-
served in the Roman Law and adopted
by the Canon Law" Such quotations
could be multiplied.
In Cabinet comprising four members
an equal division will prevent action. 1t
Is political situation for which must be
found political remedy. In the case
of one member of the four being at varl-
snce with his three colleagues, we can
find no other rule or principle than that
the majority opinion is the opinion OF
the Cabinet, save in the expressly ex-
kcepted cases.
In the statute upon which this contro-
versy arises, it does not appear to us
that the use of the terms "a majority OF
the Cabinet imports that the other ex-
preston with the approval OF the Cab
met must be of the four members
unanimously.
The provision in section of the Act.
that the name OF the person elected to
be colonel by the commissioned officers
OF the Hawaiian Volunteers, snail be
presented to HIS Majesty for commission,
unless majority of the Cabinet disap-
prove, is a concession to the wishes OF
the electors, who are presumed to be
capable of making fit choice. Even if
such person should not meet the APP
proval of one or even two OF the Cabinet,
| his name must be presented to the King
for commission. Only if three OF the
Cabinet object is their election nullihed.
| So also when, on the result OF second
election, a second certi6cation OF a per-
son to be commissioned as colonel is
made, the Minister of Foreign Affairs is
obliged to present this name for commits
sion, although two of the Cabinet should
object and, as before, only if three of the
Cabinet disapprove is this second cleo
ton nullifed. Thus far the Legislature
has provided that the voiceof the officers
shall be respected in the selection OF the
colonel under whom they are to serve.
But this goes no further. When a ma
| jority of the Cabinet disapprove OF the
| officers nominee, they then are to select
a competent person to be commissioned
as colonel. The two matters are distinct !;
one is the disapproval of a nominee of
the officers of the volunteers, and the
other is the selection OF person without
reference to the action of the officers)-
competent to act as their colonel. There
is thea nothing in the words OF section
| 10, prescribing that majority of the
Cabinet may disapprove nominee, and
thereafter the Minister OF Foreign
Affairs, with the approval OF the Cab
met, may present another name tor
commission requiring that the entire
Cabinet concur. 1t should have the
same construction which must be given
in all other cases. The only coloring in
support of different view, is the use of
the two terms in the same Act. But we
have shown a reason for the use of the
word majority, namely, that not two
members are sufficient to set aside the
election by the officers. The Cabinet
imports a majority thereof, there being
no exceptional and express provision
that it must be the act of the four mem
bers.
We, therefore, answer the question of
the Cabinet, that our construction of the
statutes and constitutional provisions re-
lating to action to be taken and advice to
be given to the Sovereign by the Cabinet,
is that such action and such advice is to
be that of the majority thereof.
Your obedient servants,
A. F. JUDD,
LAWRENCE McCULLY,
Rich. + BICKERToN.