The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-02-17
HAWAIIAN LAW.


States, also the reports of the deci-
sions of the Supreme Court, and of
several of the Circuit Courts of the
United States, and most of the Eng
lish judicial reports. In addition
to these the library is now taking
several of the series of the National
Reports system, although in these
reports are duplicated the reports
of the State Courts and the United
States Courts.
Besides judicial reports, the
library contains most of the prlnci-
pal English and American treatises
and text books on law subjects.
These English and American re-
ports go on increasing rapidly each
year.
These books contain, of course,
interesting and valuable discussions
of law questions which the student
of law takes pleasure in reading;
but not one of those thousands of
decisions has any authority as q
precedent with Hawaiian Court
or Judge. The opinions of eminent
foreign judges and Courts are en-
titled to great respect, as are the
opinions of eminent jurists or
publicists who are not judges.
In any English or American
judicial proceeding decisions are
cited for the purpose of showing the
law which is binding upon the
Court, and which the Court must
apply and declare in the case before
it, or else show that it is not, as the
expression is, Gin point"
The common law of England,
which is the basis of the common
law of all the States of the Ameri-
can Union except Louisiana, is the
growth of centuries. 1t is made up
of judicial precedents, of legislation
and of established usages and GUS
toms, and is to be found and studied
in the judicial decisions of the
Courts of those countries.
But English common law is not
made the basis of the law of Hawaii
by any legislative authority, and,
according to the Hawaiian Constr
tuition, the Legislature alone makes
the laws of the land.
If it were deemed wise to adopt,
as has been done in the United
States, the common law of England
as the law of Hawaii, except when
opposed to Hawaiian statutory Or
customary law, there would then
be basis for our law which could
be ascertained with reasonable GER
tainty by competent students of
law. The trained lawyer could
then tell his client, with some de-
gree of confidence, what Hawaiian
law is on any stated facts. He
could go into Court and appeal to
judicial precedent as authority for
his opinion, as he cannot now do.
Judicial decisions in the various
American States are on many of
the most important subjects, in
conflict with each other, but in each
State there is uniformity and a GER
tainty which results from the fact
that the Court is bound to follow
its own presidents, or show strong
reasons for not doing so.
In Hawaii, the most that any
lawyer can pretend to do with the
infinite variety of law questions
which are not governed either by
Hawaiian statutes or judicial prece-
dent, is to guess what any particu-
lar judge or majority of the
judges of the Supreme Court, will
prefer to decide as law.
Each decision to be sure makes ]
precedent for other like cases which
may follow; but it will take a hun
dred years to build up system Of
Hawaiian law in this manner which
will approach completeness.
There is no doubt that this is fal
from being a satisfactory condition
of things. The best of judges are
human, and will sometimes err. NJ
judge can rely upon his own indi
vidual ability to Gull out from ;
mass of conflicting opinions o
foreign jurists those views of Law
which shall invariably be correct o.
consistent with even his own pre-
viously expressed opinion.
This is an anomalous condition
and ought not to continue in
definitely. Either the English Com
mon Law basis of Hawaiian Law
ought to be authoritatively de
clared by the Legislature, or els
steady and persistent attemp
should be made to codify the law.
A statute of Civil Procedure coul,
be prepared which would elias
sify the forms of actions, show wha
is required to be, and may be state,
in the pleadings in law, equity AM
admiralty, what defenses may b
made and how they shall be pre-
scented, and generally making tn
procedure more definite and simple
Examples of such statutes ca
easily be found; for instance in tn
English Supreme Court of Judica
ture Act of 1870, in some of tn
British Colonial statutes, as we'll a
IN many of the American codes
1t is useless to expect thorough
or consistent work of this kim
to be done at a hurried legis