The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1894-10-02
HAWAIIAN JUDICIARY.
ITS BIRTH. EVOLUTION AND PRES
ENT CONDITION.
A Valuable and Interesting Treatise by
Associate-JusticeF reer Upon
the Subject.

NATURE OF LAWS AND LITIGATION.

were observed, the nature of the cases
that were likely TO arise and the
efficiency with which rights were pro.
tected varied from time to time with
the character of the rulers, the nature
of the laws and the state of society.
The laws, all of them unwritten, were
established by usage, or by the edict of
the king and proclaimed throughout
the country by heralds. Of these, the
taboos, imposed in early times for re-
ligious purposes only but afterwards
also made use of by the chiefs for polit-
ical purposes in order that they might
add to their civil authority the sanction
of religion, formed the largest and most
complex as well as most oppressive
body of laws.
Next in number, but first in import
ance, come the laws of real property
upon which the whole system of gov
eminent was based, including the laws
of tenure, water rights, fishing rights
and taxation. Laws relating to personal
security were few but important, the
violations of which, considered more as
torts than as crimes, generally took the
form of assault and occasionally of
lneTe WIS llJllt OCCdSlOn lOI
the law of contracts: for, estates in
real property were created and trans
ferred by favor rather than by contract;
and personal property, of which very
little was accumulated owing to the
rapacity of the chiefs, was exchanged
only by barter, in which case the
bargain was not binding until delivery
of the goods and expression of satisfac-
ton by both parties and then it became
irrevocable. Domestic relations were
little regulated by law; parents might
do as they pleased with their children,
often giving them to Others or putting
them to death; marriage and divorce
rested upon the consent of the parties
or their relatives.
KAMEHAMEHA's REiGN-17S2-1Sl0
Until the fifteenth century peace,
prosperity and security appear to have
prevailed. The next four centuries
were filled with turmoil, strife and OPP
preston. But during the reign Q7S2-
1870 of Kanehameha l, who united the
group under one government, peace and
security returned; appointments to
office were based on merit rather than
favor; the laws, both civil and religious,
were made more uniform and were
rigidly enforced; the oppression of the
petty chiefs or inferior lords was
checked; their power was broken and
that of the central government
was strengthened. During that reign
occurred the change from the island to
the national system. Previously there
had been one, sometimes more than
one, King over each of the principal
islands. But then one lord paramount
or King, and therefore one supreme
judicial, as well as executive and legis-
lative officer, took the place of several.
Next under him were the Governors
appointed by him over the different
islands, taking the place of the former
tenants IN capite or perhaps rather the
place of the former island Kings, for
they had almost regal powers. Then
came the under chiefs appointed by the
several Governors, with the approval of
the King, over districts and villages,
and also the tax officers, who acted
under the Governors in tax and land
matters. Thus there was change not
only from an island to national sy stem,
but from complex to simple system.
The courts, if we may at this stage call
them such, were reduced practically to
three grades; the national or supreme.
presided over by the King: the island
or superior, presided over by the several
Governors: and the two classes of dis
trict or inferior courts, presided over by
the under chiefs and tax officers re
spectively whose jurisdiction was con
current as to territory but different al
to subject matter.
The terri orial divisions which have
remained substantially unchanged eve
since, also become established in thi
reign, There were four genera
divisions presided over by the governors
the islands of Hawaii and Oahu eacl
constituting one, and the islands o
Maui and Kauai with the adjacen
smaller islands respectively constituting
the other: so that now when we speal
of Maui as IA judicial division we tactil!
include Molukai, Lanai and Kahoolawe
and likewise Nlihau is regarded as in
cluded in Kauai. During this relgl
also, as result chiefly of foreign in
fuences, the religious system wa
undermined, and upon the death o
Kamehemeha in 1919, it fell to pieces
Thus ended all ecclesiastical jurisdiC
ton, whether over civil or religion
causes. Not, however, civil jurisdictio
over religious matters. This continue
to I've exercised against the idolatr
which survived the overthrow of til
native religion, and also against Roma
Catholicism, beginning in 1890, fe'
years after its introduction. 1t wa
considered lawful as against the Catl
olics until the Edict of federation {
1889 and as against native idoatry unit
the Declaration of Rights of 1889 an
the Constitution of 1910 which guaral
teed religious liberty. The inferiC
judges, however, III their ignorance an
zeal, occasionally tried cases of idolatr
until AS late as the year 1857.
FROM THE DEATH OF KAMEHAMEHA I
THE FIRST CONSTITUTION, lSl9-lS40.
Kamehameha in view of the wea
nesses of his son and successor, by wi
established the office of Kuhina Nui,
Premier, who was to have power C,
ordinate with that of the King. Thes
the King and Premier. may be said
have then constituted the Supren
Court, and they acted to some exte
with the advice of Il council of his
chiefs which became established duriI
the reign of Kamehameha and afte
ward continued to grow in power un
it developed into the House of Noble
Soon after Kamehameha' death q
seat of government, and therefore '
may perhaps say the seat of the S
preme Court, was removed from Kali
to Lahaina and Honolulu, these plaC
having gradually grown in importan
through the advent of foreigners.
During the thirty wears which 81
ceeded the death of Kamehameha, t
good forces set in motion by him &C
tinued TO operate; Christianity W
introduced the year following
death and schools were establlsht
Under the influence of this new religi
and learning, the chiefs gradually
came more human in their views
ward their dependents and more {
servant of their rights; the comm
grew to learn that they had rights
few written laws relating chiefly to
sault, murder, theft, drunkenne
gambling and oppression, were p
mulgated from time to time, beginni
with the year 1929 the conception