The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1894-10-01
HAWAIIAN JUDICIARY.
ITS BIRTH. EvOIU1IoN AND PRES.
ENr CONDITION..
A Valuable and Interesting Treatise by
Associate-Justice Freer Upon
the Subject.

At a meeting of the Hawaiian Histor
ical Society, held June 20, 1894. Associ-
ate-Justice w. +. Frear read the follow.
ing paper upon the subject, 1.-The
Evolution of the Hawaiian Judiciary:
TWO PERIODS OF HAWAIIAN HISTORY.
The history of the Hawaiian Judci-
airy may he conveniently divided into
two periods: The first, W Itch may be
described as the period of absolute
government, extending from the earli-
est migration of Hawaians to these
shores. say about the fifth century of
the Christian era, to the year 1910; the
second, which may be called the period
of constitutional government, extend
ing from the year 1910 To the present
time. During the first of these periods
but little progress was made in the
evolution of the Hawaiian judiciary.
During the second period, as the
result OF peculiar political, social
and industrial changes, and the inter-
mingling of the foreign and aboriginal
races, of widely different, but gradually
assimilating ideas and needs, develop
ment has been rapid-until now, for
independence, for completeness and
simplicity of organization, and for satis-
factory administra ion OF justice, the
Hawaiian Judiciary occupies high
place among the Judciaries OF the most
advanced nations.
FIRST PERIOD, TO 1S40-No DISTINCT
JUDICIARY.
During the first period the system of
Government was of ieudal nature,
with the King as lord paramount, the
chief as mesne lord and the common
man as tenant paravail-generally three
or four and sometimes six or seven de-
grees. Each held land of his immediate
superior in return Tor military and other
services and the payment OF taxes or
rent. Under this system all functions
OF the Government, Executive, Legis-
lature and judicial, were united in the
same persons and were exercised with
almost absolute power by each Junction.
airy over all under him, subject only
to his own superiors, each function being
exercised not consciously as different in
kind from the others but merely as
portion OF the general power possessed
by a lord over his own. There was no
distinct judiciary and scarcely any con-
ception of distinct judicial power, and
yet judicial forms were to some extent
observed. Our authentic knowledge OF
them is meager and probably does not
much antedate the reign OF Kameha
meha |.
REDRESS WITHOUT TRIAL.
The usual method of obtaining re-
dress was for injured parties or their
friends to take the law into their own
hands and retaliate, as for instance in
cases OF assault 81 murder. The offender
might, however, escape by fleeing to
city OF refuge In cases OF theft the in
jured party went to the thief's house
and took whatever he could tind-the
thief, even though the stronger of the
two, eing restrained by public senti-
meut from Offering -sistance. This was
not mere unbri led anarchy, though
closely bordering upon it, but was wei
recognized as a justiiiable legal proceed
ing. Even at the present time among
the most civilized nations, similar
remedies are allowed, in some cases by
the law as in cases of distraint, recap
ton, and abatement OF nuisance, and in
other cas- IS by juries or bv common con-
sent in disregard OF the law.
CIVIL TRIALS COURTS JURISDICTION.
The practice of taking the law into
ones own hands, however, was seldom
10
dnar ',u u, " ~ hiobar ranl, ,Ha "os
,ninred nartv or If of Inferior rank
haiongad to another chiaf In snch
casos rho i, iurod ,orty anroaIod 70,
,mst;ca to ria King Or some cbisf
within whose ,arritnrv tho occnsad
resided Inv; .dic,;nn jansnJed on tha
place where the offender was domiciled.
longed' NOT mon the place where he
was found or where The ofrense was
committed. ANY chief from the imme.
date lord OF the wrong. doer 70 The
King might take copnIznnce of The
offense. and from the decision of nm,
chief an appeal Law to any one of hi
superiors. Thus lhe,e was a series of
cnilrts which mi ,ht he called local
uieiiio' anu nat'0'o' VI ,'hueI haileha
nlrha; ui7tIi'', isi'"" anu ha'iohdi, each
isdiction extended over all persons dom
iciled within his territory, and was
original, and to some extent concur
rent and appellate.
-
PROCEDURE
There were no regular police, but the
King ami each chief had number OF
attendants at hand, whose duty it was
with the aid OF their dependents to exc
onta o,Io,s ,,l H., 400.