The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1894-10-03
HAWAIIAN JUDICIARY.
ITS BIRTH, EvoLUTIoN AND PRES
ENT CONDITION.
A Valuable and Interesting Treatise by
Associate-Justice Frear Upon
the subject.


both torts and crimes. As a rule there
fore civil and criminal actions wert
blended, and the judgment consisting OF
fine and damages in one sum, was di
injured party In certain propositions.
Thus, in one case person was found
guilty by the lower judges of stealing
twenty-one goats and placing his mark
on them. The penalty was four-fold OF
eighty-four goats, half to go to the
Government and half to the owner
| Upon appeal to the Governor and a
jury, the latter having affirmed the
Judgment of the lower judges and
recommended mercy, the Governor re.
mitted the Governments half and
ordered the defendant to deliver the
balance to the owner within thirty
! days on pain of having execution
issued for their value at fifty cents
each. AS time went on, however, civil
and criminal actions came to be dis
tinguished more and more, especially in
foreign cases.
CHAMBER CASES.
Chamber cases in equity, probate.
admiralty and, banking, tried by the
Judge as distinguis he'd from law cases,
civil and criminal, tried by the court,
were not recognized by the laws, but as
they arose one after another the Gov
ernor assumed jurisdiction, and, with
the associate of the Attorney-General
decided them when between foreigners,
in accordance with the principles of
American and English jurisprudence.
t....
Justice of the Supreme Court took iur-
isdiction in chambers, sitting at 8
o'clock in the evening in vacation and
granting writ of prohibition ordering
Judge Andrews not to proceed with a
jury in certain case until he had
heard and passed upon a demurrer.
! The jury was often used in chamber
cases in those days, but since then,
partly by usage and partly by statute,
this has been gradually changed until
now jury trials in such cases are rare
and are practically confined to certain
issues in probate and bankruptcy cases.
when appealed to jury at regular
term.
PROCEDURE.
Proceedings in all the courts were
somewhat informal. In the lower courts
the Judges, sitting one or two at time,
actei as both Judge and prosecutor
| There was no lawyer in the kingdom
until the arrival OF John Ricord in 1874.
The judge would ask what the complaint
was, what the defence was, and after
hearing the oral statements OF the parties
would examine the witnesses, who were
sometimes sworn, and finally pronounce
| judgment. In the Governors court the
Ia, -
an ordinary letter. There were no other
pleadngs except the general answer
| (Which was sometimes made orally)
until August, 1915, when after consider
able discussion a special plea was allowed
to be filed. The first demurrer was
allowed in April, 1916. In July OF the
| same year extensive rules of pleading
and practice were issued by Judge
Andrews.
POWER OF JUDGES.
As to the law by which the courts
We're controlled and the extent to which
they themselves possessed legislative
powers:-During the years 1910 1872, a
number of laws on a great variety of
subjects, some relating to private, some
to public matters, many advisory rather
than mand tory, and in 1912 these were
published in "a small volume of two hun.
dred pages, known at first as the Laws
of the Hawaiian Islands," later as the
"Old Laws" and now as the Blue
Book" from the color of the cover,
which is of blush green. These laws
| read very quantity when compared with
present laws. The penalties attached
to otfenses were of great variety, such
as fines of money or other property, i'm
prisonment, irons fiogging, confiscation,
banishment,* and in some cases the pun
ishment was left to the discretion of the
| judge both as to kind and amount
These laws could not be expected to
cover all cases that might arise, and
consequently it was provided, in general
terms in the constitution, that the laws
should give redress to every man injured
! by another without his own fault and
punish all men who commit wrong
against either the kingdom or individ-
uals; and more particularly in law OF
1871, that when case should arise to
which no statute was applicable, the
Judge should inhict such punishment as
the general principles Of the new system
should require, after first rejecting on
those principles, the nature OF the wrong
and the punishment that would have
been inflicted under the old system.
Thus was continued considerable legis-
lative power in the Judiciary in law cases
both civil and criminal. In chamber
cases between foreigners the Governor
generally called in the assistance of the
Attorney-General, who usually wrote
out an elaborate opinion with marginal
references to authorities and applied the
principles to the case in question. The
Governor would then adopt the opinion
as his own and add that future adiudica.
tons would fe governed by the same
principles and marginal references
Likewise in law cases between foreigners
he would adopt the instructions OF the
Acknowledgement delivered to the Jury
Thus large branches of common la W
and equity. admiralty and probate law
were adopted by the Governors. The
Supreme Court also felt at liberty to dc
the same. The King, in his decision
granting the writ of prohibition above
, referred to, says: 81 have power t
restrain those who are under me whei
they go too fast. This was the ancient
custom. | often still practice it for tn,
benefit of my native SUBJECTS and an
informed out of the books Of foreigI
countries that such power properly ex
lists in a chief judge over any cour
under him." In their decision in tn,
Charlton case, the Supreme Court il
granting a new trial ordered that i
should be deferred until the recorC
should be sent to England for tn,
opinion of jurists there. This was don,
and the decision was supported 10y thos,
iurists. In his speech to the Legisla
ture in 1916 the King said that h,
reserved the right, in foreign cases o
dellcacy or difficulty, to take counse
abroad when he considered il aXnadient