The Hawaiian gazette., 1891-03-03
SUPREME COURT.
Decision on the Cabinet Question
One Dissenting Justice.

One Dissenting Justice.
DEPARTMENT OF THE JUDICIARY, I
Honolulu, 25th Feb, 1891. s
To Their Excellencies Godfrey
Brown. Charles N. Spencer
and Arthur P. Peterson, Mem
bers of His late Majesty's Cab
met:
GENTLEMEN-The Justices of the
Supreme Court have had the honor
to receive your communication of
the 10th inst, IN which you say
that in accordance with the pro-
visions of Article 20 of the Constr
tuition, we, His late Majesty's Cab
met, having been requested to re-
sign by Her Majesty the Queen, beg
to request the opinion of Your Hon
orable Court as to whether the
commissions held by US from His
late Majesty Kalakaua are valid
and legal, and whether under Arti-
Gle Al of the Constitution there is
any power existing than that men
toned in said Article, to wit, the
Legislature, which can recall said
commissions or render them inoper-
alive"
Having delayed replying to this
communication at your request I'M
til to-day, we now reply as follows,
fully impressed with the import
ance and difficulty of the matter
submitted:
TIE question of the effect of the
death of the Sovereign upon the
status of the Ministry, receives
little light from the Constitution
and the laws.
The tenure of Office of Hawaii
an Ministry closely follows the
English rule IN that it may be ter
minated by the Legislature. Here,
as in England, the Sovereign APP
points the Cabinet, though in that
country the royal prerogative is
satisfied with the formal appoint
ment of the leader Of the party in
power as Premier, and the ultimate
approval of his nomination of the
other members of the Cabinet.
The British Ministry is sometimes
described as a standing committee
of Parliament, because they are
selected from the Peers, and the
elected members of the House Of
Commons, and are responsible to
Parliament and may be dismissed
by its vote. Yet in England, the
Ministry hold such relations with
the Crown as its appointees and
responsible representatives in the
administration of executive bust
ness that they are dissolved by the
death of the Sovereign, leaving the
new incumbent free to create new
Cabinet or to reinstate the old one.
We know of no exception to this
rule; the holding over of the Lord
Melbourne Ministry of William ".
upon his death and the accession of
Queen Victoria is sometimes cited
as an exception, but as a matter OF
fact they surrendered to her the
seals of their respective offices, and
received them again at her hands
a Martineau's History Of England,
SO, 89). 1t may be added that al
though precedent obliges the Min
istry to resign at the death of the
Sovereign in England, the unwrit-
ten law requires the new ruler to
select the leader of the prevailing
party as Premier, which means
that he is expected to reinstate the
old Ministry or, at least, its head.
This practice is in accordance with
our own political system and will
in time doubtless be regarded as
essential.
Here the Ministry are not mem
bers OF the Legislature except by
virtue of their positions in the Cab
met, and are not necessarily select
ed from the Legislature, and they
hold about the same relations to
the Crown as is the case with the
British Cabinet, so that although
they might perhaps with some
show of reason be termed stand
ing committee of the Legislature,
such a view is less obvious than is
the case in England. Strictly
speaking, however, the Cabinet is
not a standing committee of the law
making body in either country.
Under this similarity of circum-
stances, the practice in England
upon the occasion of the death of
a Sovereign must have great weight
with US IN like emergency. with
our want of constitutional provision
therefor. The precedents of other,
perhaps all other, monarchial cUun-
tries emphasize the force of this
rule.
There is no question and there
can be none that when once a Ha-
waiian Sovereign has appointed
and commissioned the Ministry.