The Hawaiian gazette., 1895-01-04
WHAT MUST LAWS BE /?


only to one phase of great ques.
ton. To have done more would
have required a volume. He did
not pretend to treat the subject OF
ethics which underlie all laws and
constitutions. He attempts to show
that rights" however existing, or
obtained by society, take the form
of customs, usages and thoughts, "
and that these govern society,
in the unwritten or what law
yers term the common law"
and eventually, by statute law
Our correspondent forgets, per-
haps, that the vast mass OF
law, today, is wholly unwritten,
and lies in the customs and
thoughts of society, and that judges
and lawyers, do not apply their in
dividual opinions of what is right"
in these cases, which would pro-
duce utter confusion in the law,
but simply find, as Mr.. Carter says,
what the customs and usages are.
The laymen, generally, do not un-
derstand this, and some lawyers
don't. 1t is for society to change
or modify its ideas about ethics,
assisted, of course, by all good
men, and the judges apply the gen.
eral idea. Much legislation has
been of the kind suggested by our
correspondence illustration, that of
giving man medicine or drugs in
the hope of putting a new nose on
him, or restoring lost arm. The
value of Mr.. Carter's address is in
the analysis of the actual "mechan-
ism" of the working out of politi-
cal institutions.
Our correspondent says that gov.
eminent does not depend upon the
"whims" of the populace. What
is a whim? 1t is, essentially, an
opinion, and it certainly does make
and unmake governments. One
day: in 1871, the French people
supported the second Napoleonic
empire. The next day, by whim
or opinion, they upset it, and es-
tablished a republic, which now
stands. The British nation, today,
maintains House of Lords. To-
morrow, by the whim or opinion of
the majority, they may abolish it,
and rule through the House of
Commons-a situation which the
Americans would not accept. Toll
stoi says the Gar of Russia rules
only with the implied and effective
consent of millions of peasants.
If they changed their minds, and
acted together, he would "go" at
once. The events which lead up
to these changes-the evolution of
ethics-belong to another branch
of historical treatment.
Our correspondent says that
'every Government to be legiti-
mate must conform to the ultimate
rule of rights" Who, indeed, is to
determine what right" is ? Eng
land believes it fright" to unite
Church and State. Americans do
not, who shall determine ? The
State of Connecticut allows abso-
lutte divorce for four separate
causes. The State of New York
allows it only for one cause.
Which is fright ?" A man was
granted divorce by competent
tribunal, in the State of Ohio. He
then married in the State of New
York, and is now in prison for big
amy. The New York judges re-
pudiated the law of Ohio. Which
is fright ?" In New England a
man is punished for taking over
six per cent. interest. In Colorado
he can take ten per cent. Which
is right? The law of New York
forbids a man to leave over one
half his estate to charity. In
Pennsylvania, he may leave the
whole of it to charity. Which is
right ? Who is to determine it :?
Mr.. Carter tells US, that effective
laws express the thought, customs
and usages of people, whether they
are right or wrong, and that if they
do not, they are not enforced. AS
cno;.+r ,po,rorae o,eto,o, 5000,