The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-04-02
MADE PUBLIC.
The Cabinet Questionable Dis
senting Opinion by Judge
MnCuITp

McCUIly.
In re Opinion OF Court concerning the
right OF the Cabinet to retain office
The Constitution of 1864 provided in
Art AZ that the members OF the Cabinet
shall be appointed and commissioned by
the King and hold Office during His Ma
jesty's pleasure, subject to Impeachment.
1t is not TO be doubted that upon the
death of Sovereign under that Consti
tuition, the Ministers who had held Office
during the Kings pleasure should pro-
peIly tender the new Sovereign their
portfolios. Their commissions would
not become vacant by the death of the
King appointing them, as is evident by
the fact that Ministers have in this coun
try many times continued in Office tenn
porarily at the request of the new Sover-
eign without new commissions or gazet-
ting of appointment 1t has been a
tender only OF resignation and pending
holding of Office. not vacation OF the
death. Article SO of the Constitutions,
view by assigning the Office OF regency
to the Cabinet in case of the Throne de-
missing to minor heir and OF calling the
Legislative AoScipbiy tosOthCi. W Ai
the case OF a vacancy of the Throne
The Ministers of King Lunallo exercised
their functions in the interregnum fol-
lowing his death and Sat and voted in
the Legislature at the election of His
late Majesty Kalakaua, as they had pre-
viouslv sat and voted in the interreg-
mum between tine death OF Kameham cha
V. and the election to the Throne OF
Lunalilo.
But the existing Constitution has pro-
vided that the Ministers of the King
having been appointed by him, shall
hold office, not as before, during His
Maiesty's pleasure. hey can be re-
moved by him only upon vote of want
of confidence passed by majority OF all
the elective members of the Legislature
or upon conviction of felony.
No difference between the present and
the preceding Constitution is more i'm
portant than this. 1t provides for and
secures Government by responsible
executive heads OF departments. 1t pro-
vides that they shall hold Office pracii
cally from one Legislative session to the
next. Practically the appointments
made by the Sovereign are confirmed by
the Legislature. 1t is parliamentary
k0SClAAhClis
The case OF Sovereign coming to the
Throne in the interval of Legislative
sessions is not provided for. 1t may be
said that the omission leaves 1t open to
the Sovereign to require the resignation
or to declare vacant the commissions OF
the existing Cabinet and to appoint and
commission Cabinet of his own selec-
ton; or, on the other hand, it may be
- o. ,.,S fhr f.,tl 70 10 for
case requires it to be considered that it
does not form all exception to the rule
that g Cabinet once appointed holds
office till the action Of the Legislature
may terminate its holding
The determination between these
alternatives is not easy. We can derive
the presidents OF England, OF the United
States or other countries, for the clause
in our Constitution is unlike any other
provision known to us. Perhaps either
position is tenable, but 1 prefer that
which holds that the existing Cabinet
remains in Office; chiefly for the reason
that it saves the principle for which this
new Constitutional clause was intro
duced, namely, that the Government is
vested in Cabinet approved by the
pCOPiO tiiS tiCtIIN A'OciSo oiN
Representatives.
The King never dies. The new Sow
ereign under this Constitution comes to
the Throne and to the Government OF
| the deceased tenant OF the Throne.
| 1t may be said that this view deprives
the new Sovereign OF every opportunity
OF free appointment of Cabinet, because
the Cabinet in existence at his accession
may be continued by Legislatures by re-
fusing to vote want OF confidence
through all his reign, but this is no more
than may be said after the first appoint
ment, that the Sovereign has no secnnC
opportunity of appointment, and must
continue with a Cabinet which is unac
ceptable to him. The one is really NJ
greater restriction than the other. Tht
objection is theoretical one, for prac
tically the Sovereign will have opportu
nifty from time to time to select and com
mission Ministers. Death, resignation
and the high probability that Cabine
will in no great length of time incu
Legislative censure, forbid the supposi
ton that the Sovereign will not, quite oil
ten enough. be called TO the grave dut
OF replenishins the Cabinet Off :ps.
LAWRENCE MCCULLY.
Honolulu, February %. 1891.