Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-07-08
TRANSITION DECISION
is LIKE THAT
Of STUART JUDGES

Williamstown. June 8, 1903. - The
latest decision of the Supreme Court
reveals again the purposes of the polit-
ical power. For the moment. at least,
the court has abdicated its judicial
functions and is following, not restrain
ing the political power. It is an old
story, and the theory which now pre-
walls in the Supreme Court at Wash
iugton was the theory which the Stu.
art kings desired the judges to estab-
lish for the maintenance of their as
sertions of absolute power, and espe-
cially of the right to give to their proc
lamations the binding effect of laws
enacted by Parliament and signed by
the King. The Stuart theory was that
the ultimate power rested in the King,
and that It was the King, and not the
Parliament. who possessed the right
to meet emergencies not contemplated
by existing law, and to legislate con-
corning il by decree.
This assertion of hngly prerogative
marks the issue between the crown
! anu inc REPRESENTATIVES, vi lilt
in the closing years Of the 18th cen.
fury In order to sustain the Kings
contention, the judges distinguished in
| Rute's case between his ordinary and
political powers. In the days of the
Stuarts. the King possessed and eXer.
c'sed a corrupting power over the
! judges, through the power of dismiss
al, and the assertion of this power pro-
duced such evil consequences that. in
the act OF settlement II was declared
that the judges should hold their of.
flee during good behavior.
In their decision, in Bates case, the
! judges held that the King was abso-
Lutte in the exercise of his political
| power; that he was above the com.
mon law. which. in England includes
constitutional law. Later, in the reign
of Charles l., the judges decided, at
the dictation of the King. that the roy.
a. prerogative permitted the King to
arrest a subject without stating the
charge, and 10 imprison him indef.
nitely. This they did by holding that
a return to a writ of habeas corpus
that the prisoner was held by special
command of the King" was sufficient.
Justice Berkeley made several state
ments of the principle that the polti.
cal power of the King was above the
power of the Parliament and of the
| judges, and the following remark by
him puts the whole question in a nut.
shell. He said that there was a rule
OF law and a rule Of government, and
that many things which might not be
done by the rule of law might be done
by the rule of government" In other
words, the Stuart judges declared that
there was and must be, a power in
tie nation which was above the law
to the extent that it might change the
law. Then they proceeded further, UNI
j der pain of dismissal and declared
that il was the King who possessed
this power. To this the commons re-
sponded that the power rested with
TIE representatives Of the people, and
sustained their intention.
The Supreme Court of the United
States, by majority of one. has
adopted the faulty reasoning of the
Stuart judges. They have determined
that there is an ultimate power which
may change existing law, even II 1t be
constitutional law that is abolished or
extended or in any way modified.
There is no dispute over this PROPOSE
ton. No government ever existed the
constitutional law of which might not
be changed. Somewhere Is lodged the
discretion to meet emergencies which
are not contemplated by law, and for
which new law must be made. The
Stuart judges made the mistake OF as.
Stunning that this irresponsible power
was lodged in the King, but the consti.
tuition Of country is the body of law,
which is made by this ultimate power,
this power which is the State, and in
England both the Stuarts and their
judges discovered that the power
which writes constitutional law Is the
Parliament, which, In turn, is dominat.
ed by the representatives OF the PEG.
pie sitting and acting as the House OF
Commons.
The Supreme Court Of the United
States, by majority of one, is follow
It held in a Porto Rico case that the
Constitution did not travel TO a distant
territory except by act of Congress
and In that and other cases, II decided
that the provision OF the Constitution
requiring uniformity of taxes did not
travail IN tarritnriac that u wac In