The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-06-04
A PARALLEL CASE.

Under the caption: 'Roasts Court
for Fair VIII Decision--Warm Brief by
Half Dozen of the Foremost Lawyers
in acknowledgements Justice Hen
shaw. q Charged With Not Knowing
What He Was Writing About" the
Examiner prints the following state
ment which. in view of recent events,
has an important local bearing:
When half dozen first lawyers of CAL
ifornia characterize a decision of the SUI
preme Court as "a blot on the jurispru-
dence of the State it is to say the least
unexpected, for lawyers weigh their
words and are careful to the last degree
about what they say of the judiciary.
Yet that is the language used by Will
liam II. Pierson, Van r. Paterson, Gar
ret w. McEnerney, Robert Y. Hayne and
George E. Crothers in a brief now on
file in the Supreme Court and asking for
another rehearing of the case which
concerns the trust created by the will
of Senator Fair. recently knocked out by
q decision Of the court reversing its for
mer opinion by vote of four to three.
These are hard words, but there are
harder stiH In the brief. Justice Hen
shaw, whose vote changed the decision
on the second hearing, is charged with
'.inadvertence' In his treatment OF the
case, which Is of course only a polite
way of saying he did not know what he
was writing about. He is charged with
fatty contradicting his former opinion,
and 1T Is even pointed out that there Is
a diametrical opposition between his last
opinion and that Of his three colleagues,
with whom he says he concurs. All this
and more too fs said with the utmost re-
spect rfefr x $50 tss a.i''
The, yaig Isl full, of adjectives. not only
of legal but likewise Of a political COM
ple4i0nna peopfe have asked why Will
GaunF ..HerriIf was employed In the case
on the, side, Oft the heirs. He was not
heard In any Of the numerous arguments,
and SO far as the public knew he merely
appeared az one Of 9. distipgpished crowsd
OF sfghers on the briefs. .., 80.
The opening paragraph of the brief
saystatfsonce; p~r '4rf = 's:"sfs.'
MI, Justice Henshaw., has fallen into
an inadvertence as to , what ,was decided
by the former opinion
In support of this opening. statement
the da&Hfy parSIlel column is used to
contrast aJusstcss Hehsha%rs opinions IN
lsoo and In lSol The point on which the
case turns' isf highly technical and of
small ,tRtarestt To- thesgeneraI reader; bit /
TWO Eft extracts may sbe giveaa tosillustrats
the change of opinion. The opinion
signed yyaJustice Hehsfisaw in 1900 saws:
THE dJxacttonsato convey the property
does nHt bsceme p trust: ts.@,,.ss+s. ~
In his opinion, recently fled in support
of hiss cRaHge Vote Justice Henshaw
says: l,,sfsfssi s-hesso 10y 49, 500 = ,"
That the will created "a Trust to-, con- I
vey I never entertained any doubt"
The brief g0eason to suggest with the I
utmost Difference" that the learned
Justice" did not know what he had de-
cided GA the first occasion. The language
OF the brief is exceedingly polite. but, not
extenuated. and 1t says:
las a matter of course 1t Is not to be |
supposed that Mr.. Justice Henshaw was
not aware ofswhat the opinion which he |
signed plainly states that he would /
have signed it If his views had not been l.
in accord with It, 1t must be that the
matter escaped his attention on the last |
occasion. We suggest, with the utmost
Difference and respect, that the learned |
Justice is In manifest error as to what I
he decided in 1900, and that if allowed I
an opportunity we may be able to con-
vince him he is equally in error as to
what is decided by the opinion of the
three Justices in which he says he con-
ours"
The brief goes on to charge vital in
consistency between Justice Henshaw's
recent opinion and that of his three col
leagues with whom he concurred. Con-
corning Justice Henshaw's reasons for
his change of position the brief says:
His reason for his change is that there
was no legal estate which could vest in
the trustees and consequently mo es-
tate In law to support the equity
This Is In direct contradiction of the
opinion OF the other three Justices with
whom Mr.. Justice Henshaw says he con-
ours. If the proposition which they lay
down be sound the distinction which in
duced Mr.. Justice Henshaw to change
his conclusion can have no foundation I
Not only is it without foundation, but ]
It Is inconsistent with the opinion of the
three Justices whose concurrence is
equally necessary with his own to con-
stitute q decision. A house divided
against itself cannot stand.
1t is not a case of different Justices i.
proceeding on different ground. 1t is a
.ase of those whose concurrence - nee
'ssary to decision proceeding on dia-
netrically opposite grounds on an essen 7
ial point. {
After dealing with Justice Henshaw r
he brief goes on to handle his three T
olleagues, Garoutte, Mcfarland and .
harrison. whose present position Is the +