The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-04-07
MADE PUBLIC.
The Cabinet Questionable Dis
senfine Opinion by Judge
McCuUy.

1
sentine Opinion by Judge
McCuUy.
In re Opinion of Court concerning the
right of the Cabinet to retain Office
The Constitution OF 1864 provided in
Art. ~ that the members OF the Cabinet
shall be appointed and commissioned by
the King and hold Office during His Ma
iesty's pleasure, subject to Impeachment.
1t is not to be doubted that upon the
death of a Sovereign under that Consti-
Triton, the Ministers who had held office
during the Kings pleasure should pro-
perlv 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 a vacation of the
commissions by the act OF the Kings
| death. Article SO of the Constitutions,
both OF 1865 and of 1887 support this
| view bv assigning the Office OF regency
to the Cabinet in case of the Throne de-
missing to a minor heir and of calling the
Legislative Assembly together. So in
| the case of a vacancy of the Throne.
The Ministers OF King LunalIlo 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-
viously sat and voted in the interreg-
mum between the death of Kamehameha
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
Majesty's pleasure. They can be re-
moved by him only upon vote of want
of confidence passed by a 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 inn
portant than this 1t provides for and
secures a Government by responsible
executive heads OF departments. 1t pro-
vides that they shall hold Office practi-
cally from one Legislative session to the
next. Practically the appointments
made by the Sovereign are confirmed by
the Legislature. 1t is parliamentary
government.
The case of a Sovereign coming to the
Throne in the interval of Legislative
sessions is not provided for 1t may be
said that the omission leaves it open to |
the Sovereign to require the resignation |
or to declare vacant the commissions of |
the existing Cabinet and to appoint and |
commission a Cabinet of his own selec- |
ton or, on the other hand, it may be |
said that the failure to provide for this /
case requires it to be considered that it
does not form an exception to the rule
that a 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
no absolute rule applicable here from
the precedents 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 | 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 vas intro
duceG, namely, that the Government is
vested in Cabinet approved by the
people through the elected Mobiles and
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 a 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 second
of appointment, and must
continue with a Cabinet which is unac-
ceptable to him. The one is really no
greater restriction than the other. The
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 Cabinet
will in no great length OF time incur
Legislative censure, forbid the suppose
ton that the Sovereign will not, quite Of
ten enough, be called to the grave duty
of replenishing the Cabinet offices.
LAWRENCE MCCULLY.