The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-04-15
CODES AND COMPILATIONS.


Much is being said about the compila-
ton of code, or the codification of
the laws of the territory. In all that
has been said there is an assumption
of expense, considerable expense, to be
borne by the territorial treasury. But
in view of the condition of the terri
torial treasury would it not be we'll to
consider whether such proceeding is
either necessary or useful to the pub
lie?
In the first place it is extremely
doubtful if the Legislature has the pow
er to enact a code" using that term
in it's strict sense. In 1870 the people
of Illinois adopted a new constitution
containing provision almost identical
with Section As of our territorial act
that each law shall embrace but one
subject which shall be expressed in it's
title" The next Legislature which met
following the adoption of this constitu-
ton provided for a code commission
That commission consisted of three of
the ablest lawyers in Illinois, two of
them being Charles Durham of Geneseo
and Harvey 3. Hurd of Evanston This
commission did it's work in a scholarly
and exhaustive manner, and presented
a report which has challenged the ad-
miration of the legal profession. But
under the provision of the constitution
mentioned above, the Legislature of
Illinois could not enact this report into
law. So far as providing a code was
concerned the work of this commission
went for nothing.
From the work of this commission,
however, was compiled, as a PRIVATE
ENTERPRISE, "Hurd's Revised Stat
utes," which is revised after each ses-
sion of the legislature, but it's publica-
ton is a private enterprise, though it
enjoys great credit with the courts and
the bar.
With this experience in point would
it not be of doubtful utility for the
Legislature to put the territory to the
expense of a code commission or to
buy any so-called code from indivi-
duals?
But the term code" is also applied,
| though inacurately to a compilation
containing or protesting to contain all
the statute law in force, and such
compilations are useful, especially to
lawyers. But it would seem that the
same provision of the territorial act
which prevents the enactment of a
code, would prevent the legislature
from giving any additional effect or
authority to a compilation than would
be given to it by the character and
ability of the compilers. Even S. M.
Ballous excellent compilation known
as the civil Laws" and the Penal
| Laws" has not the authority of a
code. The legislature of 1898 went no
farther than to authorize citations to
it lin all cases where the section or
chapter so cited or referred to correctly
sets forth and recites the original en-
actment." And the Legislature further
expressly stated that nothing in this
act shall be construed to repeal or mo-
dify any existing law or statute -
which may not be contained in said
compilation" Thus this compilation
after all, rested for it's authority on the
reputation of the compiler.
In point of fact the laws of the
Territory of Hawaii are all the laws
which have been enacted by competent
authority and which have not been re-
pealed, or nullified by the courts. Any
compilation which contains all these
, contains the law of the territory with
out any legislative action on the sub
ject. If it contains less or more, II
does not contain the law of the terri
tory and legal enactment cannot make
it the law of the territory.
A compilation is an aid to the law
yer or the layman in finding out what
the law is. But it is not conclusive. A
"cOde" would seem impossible. Would
it not be the part of wisdom then to
leave the whole matter to private en-
terprise, since the Legislature can dc
nothing for us in the matter but spend
our money.