The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-12-28

order to apply it to the simple affairs |
of such a period is the selection of "a |
person for judge who best compre- |
hends those habits, customs and
thoughts.
shall not degrade the subject il |
call up a meaner illustration. In all
athletic games, baseball, cricket or
prize fighting, referee is appointed
to see fair play. There are no COM
mands proceeding from u sovereign, or
superiors, to subjects, or interiors
but there is standard OF justice
founded upon the habits and usages of
the game, and there Is consequently a
law which it is the function OF the ref
cree TO declare. We have here in min
iature the whole scheme of human
justice.
Statute law may be thought to con-
stitute an exception; but the differ
ence, as shall presently little more
fully show, is more apparent than
| real. Statute law itself, when dealing
| with the jural relations of men, If
confined to its just province, merely
puts those relations, as they already
exist in popular custom and thought,
| in clearer and more definite form.
The conclusion that law is custom
and opinion, rather than command,
may be strongly reinforced by other
| facts of common observation. And
| let me borrow my first illustration
| from statute law, and at the same
time show that this differs slightly,
| and in degree only, from the unwrit-
| ten law. We all know that when q
statute is passed which conflicts with
| the opinions, customs and habits of
| large part, although it may be mi
| nority, of the community, it is di fiji
cult, and often wholly impossible, to
| enforce it. In many instances such
enactments are absolutely futile.
| They have the form of absolute COM
mands, proceeding from the sovereign
| power; but can that be, in any just
sense, law which stands as dead let
| ter upon the statute book? Is it not
! rather nullity? 1t may be said that
| law does not lose its character as
| such because men choose to violate it;
| but does it not lose that character
| when it is at all times and everywhere
| violated, and nowhere, or in rare and
! exceptional instances only, enforced?
| The fact must be admitted that such
commands are enforceable only when
| they are in accord with the opinions
of an overwhelming majority; that is
| to say, when they are in accord with
| the habits, customs and thoughts of
the people; and if this be true, it must
| be in consequence of that accord. The
| thing therefore which gives them life
| and efficacy-that which makes them
| Iaws-is not the fact that they are
| commands, but that they are express
sions of existing habit and opinion;
and if it be habit, custom and opinion
alone which give to commands the
| force of law, it follows that the real
| substance of the law is not the COM
mand, but the habit, custom and opin-
ion which it embOdieS,
AS society advances and becomes
complex, the judges, who are the ex-
| perts to find AMI declare the law,
sometimes differ in opinion, and the
law becomes uncertain; and besides,
society in its progress and develop
| ment outgroWs its old usages and es-
saws to form new ones. The unifor-
nifty and persistency at which the
judicial office always aims, become q
barrier to this development; and the
need is felt of an agency less fettered
by precedent and clothed with power
somewhat resembling the creative
function. 1t is the Office of legisla-
ton to supply this need. 1t may de-
clare, unem barrassed by former pre-
cedent, what the law is; but, as we
have seen, the successful performance
of the task depends upon the skill and
certainty with which it tnterprets and
and applies the already existing GUS
toms, habits and thoughts of the peo
pie. IT acts in every instance at the
peril that its work will be empty and
Intellectual unless II aCcords with that
public opinion Of which it is its func-
tiou to be the exponent.
It is not worth while to dispute the
correctness OF the common phrase
oIogy which ascribes to the legisla-
ture the Office OF making law. Its
liberty Of action so far exceeds that of
the judicial tribunals as to justify, for
ordinary purposes, such designation
of its functions; but the deeper and
more philosophical view would asslm-
ilate it's Office more nearly to that per
formed by the judicial tribunals,
namely, OF affixing the public mark
aud authorization upon the customs
and rules already existing, or strug
Cling into existence in the habits of
the people. n by making the law we
mean the framing of rules at pleasure,
there has never yet existed a SOW
ereign whose power was so absolute
as to embrace such privilege.
Wise legislation seeks to accomplish
i'm relation to each human interest
ONLY what it seeks in the domain of
: business and finance. A hundred
vain efforts have almost taught iguo-
rant minds that governments cannot
a by legislation make that to be money
which would not otherwise be such;
but ii can aud should af1iX its mark and
aud authorization upon the metals
which society 10y usage has adopted 80
r money, anu certify the quantity which
4 each coin contains. In other affairs
j "a well % i'm economy, the mark will
, be respected If It is affixed 60 the gen
z uine product of public habit aud Gus.
I tom, but will toe rejected with the like
- contempt I'm either case, If placed up
, ou some spurious creation
t Let me employ here, as | have Ell
q deavored to do throughout, the true
. method cf scientific 'igRtiOn
3 and again scrutinize the actual pro
/ | o,ss ,,F ir,dioioI iuuttirv 40 IL ia kpi