The Hawaiian gazette., 1904-04-29
FREAR DID RIGHT.

The 'chopS ana tomato sauce eNi-
dence which Dickens ridculed is akin
to that of the production of letter
written by Judge Frear to Representa-
tive Chillingworth before the County
bill was enacted, suggesting certain
things that ought to ga-into that meas
tire. The charge which the citation OF
the letter is intended to support, is that
Judge Frear helped to frame law
(which he afterwards decided against in
his capacity of Chief Justice of the
Territorial Supreme Court. 1t does not
appear that he was concerned In the
actual work of framing the County law
or that his subsequent findings as n
Judge were based upon defects for
which the slightest responsibility at
tached to his previous suggestions as u
lawyer and citizen. What he passed
upon adversely was the work of others
who, If they had asked or taken his
advice. might have been saved from
errors which judicially annulled the
County law. From the beginning Chief
Justice Frear showed a desire to have
a valid law If any and in that desire
and in the expression of II he did Moth
ing unusual. either to him or to Amer
lean judges generally. Assuredly pa
per which complimented Judge Hum
phreys, while he was on the bench, for
getting the first Home Rule Legislature
to enact a bailff law which he drew
and which had for its object the pack
ing of juries, is not one to crtcise the
Chief Justice for suggestions looking to
the :'rtI.tr ena 2t'Tcnt of a measure
which that journal itself has described
as one of the most beneficial acts of
Hawaiian legislation.
That our readers may see how small
an assay the Bulletins sensation
yields, we reprint the Frear letter in
full:
Honolulu, Mch. 2, 1903.
Hon. S. F. Chillingworth
House of Representatives
Dear Sir: / understand you are to
have charge of the County Bill and
that it will soon come up in the House,
/ have not had time to go through it
all yet; but / inclose few suggestions
as to the first part and may later send
other suggestions as to the remainder,
think one suggestion will be to add
new section at the end repeating
many laws the substance of which is
covered by the county bill. This should
be done\ for the benefit of the compilers
in making the new compilation. Per-
haps l can prepare such a section.
Yours truly,
w. f. FREAR.
The incendiary suggestion of Judge
Frear in the above letter was to repeal
laws which the County bill already
covered so as not to confuse the com
pliers For this bastard deed it is con-
tended that the Chief Justice should be
driven from the bench. But surely such
an awful revelation need not stand
alone; for if one will take the trouble
to examine Chief Justice Frear's pub
lished reports-all of which are on file
here as well as in the Department OF
Justice at Washington-they will dis /
cover that he habitually makes sugges-
tons of desirable changes in laws which
it is his business to interpret. Further
more, in doing so, he follows the uni
versal custom of other judges. With
out desiring to intrude a personal mat
ter into this discussion the editor of
this paper could find, by little search,
letter received by him, while MEM
Der of the Legislature of New York,
from Justice Francis M. Finch of the
Court of Appeals-a jurist of unques-
toned position and unblemished char
acter-containing friendly request
that he vote for measure then pend
ing which, If it became law, was
quite as likely as any other to come
before the Court of Appeals for review.
Nor Is this a lone precedent. Mem
bers of Congress not infreQuently con-
suit, in an informal way, the Justices
of the Supreme Court of the United
States upon pending constitutional
measures and the justices do rot with
hold their counsel. And at a Constitu-
tional Convention of New York a JUS
tice of the Supreme Court occupied the
chair. Yet the Interpretation of that
same organic law was to become part
of his professional duty.
But precedents accumulate. The Judi
ciary Act of the United States was
drawn by Oliver Ellsworth of Con-
necticut who was afterwards placed in
a position. as Chief Justice of the
United States, to interpret it. The laws
of the District of Columbia We're pre-
pared for codification by Judge Cox,
who afterwards passed upon them from
tHt DeItH'
There are also local examples. Judge
Frear was appointed by President Nc
Kinley as member of the Commission
to frame the Organic Act of Hawaii
and then was made Chief Justice of the
court which was to consider its proVi-
sions. Chief Justice Lee drafted the
Hawaiian penal code of 1850 and the
Constitution of 1852. He had nearly
completed the Civil Code of 1859 when
he died and his successor, Chief Justice
Allen. finished ii. The Penal Code of
the year 1869 was prepared under the
supervision of the justices of the SUI
preme Court. The compiled laws of
1884 We're drafted by Associate Justice
MCCully.
The attempt therefore, to make 1t
appear that the suggestions Of Judge
Frear looking towards the construction
of valid County law We're unprofes-
slonal. unprecedented or scandalous,
fan IN tho ground with the other work