The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-06-30

tinent For instance. the EnFiisl
courts held that admiralty Jurisdiction
was confined 20 tide waters. and o.
that doctrine was acquiesced In b,
American courts for @ years after th'
adoption % thc constitution. and va,
followed ~ the Supreme Court Of th'
United States In AN opiniou by th'
learned Justice story. hiding. that ths
rr~at rivers and lakes 90 America
however naviEabie IN fact. were sol
naViEabic IN Law. above the reach Of
!. nv tide. 90 ax % bring Eases arising
thereon within the Jurisdiction Of ths
sedersi courts But a quarter OF q
century after that decision. when tbs
iuirortaEce % the question bad D.
come apparent through the Increase 81
coruuerrc on tho-- waters. due TO tbs
fnVention % the steamboat and ths
p4rsta ard movement OF popniatios. The
same court. IN one % rs greatest de-
cisfons. reversed the earlier desifion,
upOa th~ simple ground that The or
scrsption had been mistaken for the
thfnr infended 90 b. described For -
-uxtish sourts had In reality held that
admiralty Jurisdiction extended 20 sii
waters nasiEabi~ In fact. but for cos-
s~ni~nes had adopted the sbb .na Row
% the tide az the test. bccause te~s-
we're no navigabi~ waters In England
O. sDvak % which we're not tide wa
secs. IN the language Of Chief Justice
fancy ''radcF the influence 20 yreee-
dents and established forms. denni-
ttor originally correct was adhered 10
and acted ON after Il had ceased. from
a change IN circumstances. 60 b. the
true description % public waters ~
took % years of rapid history ~ enable
the greatest trouual on earth 10 dis
tinxuish the reasor from the form os
that nioutsntous question. Some bal
Analogous H. the course pursued By our
% wills AZ. FOR instance. when q sp-
piled the rule that the intention az tho
teStator should govern. and so d-ciin-
cd 10 follow the rule In Shelley'a ease"
~'hisn. though originally in harmony
With the rule al intention. had been
biir<sy followed until I'm nine eases out
% ten "a frustrated that intention.
some 81 this judicial Legislation has
grown out % less general physical con-
ditiou-. a. Witness the law 81 prior ap-
rroprtation and the mining law Of The
Western States and the mill Sam law
OF the Eastern States. Some % 70 ir
due 10 our cxt=dJrdinars immisr& ton.
- vas' and varied that. TO quo.. Prof.
Baldvs -. no one land ear now BE call
I'd our mother ccfntry." but I'VE may
shy. with Cicero. that Ne have our
selves commenced our ow'u line OF an
csstry." This u b--t illustrated 81 the
doctrine % cxIatr alton. Invented by
% the world through American treaties.
i-ut the crow ming feature Of AmeFi-
can Jurisprudence j. the creation OF an
entire branch. and that tile greatsrt
bruuch-coustitutiona law. Rufus
cho1te. after referring 90 the achieve
.ncnts Of thu executive and legislative
branches OF government. added. And
yet I do not know that I can point to
M achievement W American
ftatesua1shio which can take rank for
- consequence VI good above that sin
gle decision or the Supreme Court (in
~. .fud'aorJ. which ad1udged
l1at az act or the legislature contrary
b. the constitution - void. and that the
Iudiciai department II CLOTHED with the
power TO ascertain the rcpugnancy.
snd pronounce the legal conclusion"
IN Europr. written constitutions are ia
fleet rrcrsiy directory. Tor they cannot
be enforced by the judiciary. ~ Amer
CA. the courts protect the peoples FUN
taulentai rights not only against ~.
ssisi1tivc end executive departments
.uf FEafust tis- tyranny ~ the major
= % tir.- people themsciyea. and this
fot by obnoxious collisions with the
.theF departments or those maipritics .
dreJ<h direct action OF intcrffrcucc.
~ by deciding. 10 may D.. the weight
,srt questions a. they happen TO arifc f,
r suits h~twrs . the hufublest citizens.
sluch JUDICIAL law has resulted from
hr liberal construction % statutes and
'osfstitCtionA. AfaFshaif's Judgments .
.rr regarded. Says Dillon. almost as
supssFtant a. the texts ~ the constitu- I
son which they expound." IFS viewr
~ft it possible for th~ national growth
- take place in accordauce with the
iaturai process % evolution"
hut obviously the defects % the law
e a by-Eou~ age arr FOR tho greater
art 81 such a nature that they eannot
- cured ~ judicial legislation. The
up between laW and society must fn
most cases b. filled BY positive enact
pent. To this especially. therefore.
by judicial construction.
must b. attributed the development Of
American Law thus far and To this
hi-fiy must ~ look for itS continuing
eVcfopucnt. The aulckening OF the
zst century and a half has found lex
Fiativ- or constitutional expression In
carty every phase % Jurisprudence. /.
n may be ss-rn In our political organ
,ation and Institutions which directly
nd profoundly affect the very life OF
h. nation. as. in the separation OF
hurch and state. which ia turn led %
h. establishment 90 the public school
ystegu. or IN the adoption % the great
lection purifier. the Australian ballot
ystcm. We have not. however. more
han begun 60 adopt what may prove .
b b. n stili greater reforming agency ,
the primary election law. Home rule }
tue safeguard OF free government
nd - thoroughly. though not exclu-
Veiy. American. IL IN yet In its crude Z
cEinninE. There o. danger 20 uiistak- :
Is is Siccs Tor its virtues Perhaps !
n Held offers iarEcr opportunities for Z
- application 20 the adapting process >
BE- spirit % true AnrriCanissn re- :
uircs. not siaylsh Imitation OF aduia- I
on Of the past. but courage and zeal =
. Improve and perfect what T. 81 tueh I
tsi importance o. . free people. y
Legislation has reformed our sub 9
autlvc law. IL las freed woman In q
specs % her property rights from the
iacki~a % the feudai sys -ri. certu- ;
- after the system has served is
i-fuin~sS in eirvmtiuE her 60 a dignity
at Fh- mad never cnjo' 4 before. :
iait u yet accomplish = political
In the Law real prop :
ty. legislation has abolis I'd primo
.uftff~@ entails and other relics OF a ,