The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1894-10-02

then ready to enter upon
course of constitutional government.
This was done by the PRONUNCIATION of
the first Constitution-Octobe s. 1910
with which date one second period of
judicial history begins.
FROM THE FIRST CONSTITUTION TO THE
ACT TO ORGANIZE THE JUDICIARY
1s4O-ls47-coURTs.
Under this Constitution legislative,
executive and judicial powers were dis
tinpuished, but not with great clear
ness. and they were still conferred upon
the same persons. The supreme judicial
power which with other powers had
been previously exercised by the King
and Premier. who acted to some extent
with the advice of the council of chiefs,
was now vested in a Supreme Court,
consisting of the King, the Premier and
four other chiefs elected by the repre-
sentative body. The island courts, by
usage and custom rather than by the
express language of the Constitution,
continued to be held by the Governors.
The lower courts were, as before, of two
kinds-those of the tax officers and
those of the district judges-the num-
Der of whom rested in the discretion of
the Governors. In Honolulu there were
at one time five district judges.
Notwithstanding the meagerness of
the constitutional provisions relating to
the judiciary there was, with the ex-
ception of the short Claw for the Regu.
lation of Courts" of 1912, scarcely any
legislation upon this subject until the
comprehensive "Act to Organize the
Judiciary Department of 1S47. These
seven years were years of transition,
during which. under trying circum-
stances, the judiciary developed into
the fairly complete system set forth in
the Act of 1S47.
JURIES.
The Act of 1912 related chiefly to
iuries. These had been in use for sew
eral years and were mentioned incident
ally in the constitution, but had not
vet been regulated by law. The tax
officers and district judges were to sit
without a jury, the former to have tax
and landlord and tenant cases, the latter
to have other cases in which the fine or
damages amounted to less than one
hundred dollars. Cases in which the
penalty was death, Punishment or other
punishment of magnitude, or in which
the fine or damages amounted to over
one hundred dollars, were to he heard
with jury by the Governors Court or
by the Supreme Court. In practice jury
trials were confined to the Governors
Court.
The jury was to be composed of
foreigners if both parties were foreign
| .,f lNNth
half of foreigners and half of natives, if
there were foreigner on one side and
native on the other. The term (haole)
was constructed by the courts to include
those who were naturalized as well as
aliens. In capital cases unanimity, in
other cases agreement of three-fourths
of the jury was required for verdict.
The jury must be not less than twelve
in number excepting that in cases other
than capital, the jury, if foreign, might
/ be less in number, but not less than
eight-this on account of the small
number of foreigners III any one local
| ity AS matter of fact either eight or
twelve jurors were usually drawn,
but in at least one case, ii correctly re-
ported, the jury numbered eleven. The
Supreme Court before which the most
important cases might come, and
which before had no regular terms, but
now was to sit twice year. was to
sit only at Honolulu and Lahaina, since
these were the only places where suf-
ficient number of foreign jurymen
We're likely to be found for capital
cases. In the Governors court there
were to be no jury trials in the back
country but only at the Governor
residence. As further means of OBJ
a.. hos fgNr
jurymen the Governor might call upon
captains of vessels in port at the time of
the trial. In one case tried in 1884
before Governor Young at Lahaina, the
whole jury of twelve consisted of cap
tains of whaling vessels.
In all cases the jury was to be
selected by the Hawaiian authorities,
except in a criminal case against a
Frenchman. In such case, by the con-
vention forced upon the King by cap.
tain Laplace, June II. 1889, the accused
was to be tried by jury proposed by
the French Consul and accepted by
the Hawaiian Government. a similar
provision was inserted in the British
Convention of 1874, and in both the
French and British treaties of 1916
} notwithstanding the acknowledgment
: of Hawaiian independence and capac
ity for self government by those ma
tons in 1913.
Questions of fact We're to be decided
! by the jury; questions of law by th
judge. But this was not clearly under
stood until the decision of the Supreme
! Court in the case of Ricord, Curator VS.
: Charlton in June, 1915; for questions o
: law as well as of fact were general
, argued and submitted to the jury. Ii
: probate case in 1874 the only materia
l question left to the jury were question
= of law upon the construction of will
5 To be Continued.