The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-04-30
LIMITATIONS Of
JUDICIAL POWER
Judqe De Bolt Delivers a Doc
trine---WaIIach Asks for
Speedy Trial.

Judge De Bolt has filed an opinion
refusing to alloy the executors Of
| George Galbraith, deceased, the sun
| Of $3.50 out of the estate as premium
paid by them on their bond in qualify
ing as such executors. The plea OF
the executors was that it was a hard
ship for them to be required to pay
the same out of their individual
be contrary to natural justice" An
objection to the masters recommen-
dation thai the executors be surcharg-
ed with the amount is overruled.
In the course of his opinion Judge
De Bolt makes the following observa-
lions on the limits bounding the DOW
ers of courts:
1T is a well recognized fact that
hard cases make bad law. I take it
that a judge DR. court is not called
upon, nor permitted, to decide a mat
ter as he thinks it should be. regard
less of law or precedent. No judge or
court should place himself above the
law, and, as it were, become a law
unto himself. Nearly two hundred
ear ago Montesquieu, in viewing the
tyrannies about him, wrote this: In
despotic governments there are no
laws, the judge himself is his own rule.
. In republics, the very nature of
the constitution requires the judges to
follow the letter of the law. Otherwise
the law might be explained to the
prejudice OF every citizen in cases
where their honor. property or life is
concerned
Whenever courts or judges become
a law into themselves, and feel as well
as assume that they know what the
facts and circumstances of the case be-
them require, and proceed accord
to judgment, regardless of all
law and precedent to the contrary, or
the absence OF all legislation upon
the subject, then they have entered
and have before them the broad
field of tyranny and oppression. In
stead of being the guardian of justice
and right as defined and understood
by law, h judge then has it in his
power to deal arbitrarily in 3I mat
thus coming before him according
as his fancy or individual opinion
dictate. Such procedure is con
to enlightened n civilized o
stitutional governments. In contem-
plation of law, the judge is the law
personif1ed. Through him the law
If there is no law the lips Of
The judge are sealed. If the legisIa-
ture has not spoken the judge must
silent. If the body polite re-
1uires a remedy in such cases applica-
ion must be made to the Legislature,
not to the court. Whenever courts
the rules of law and are gov
erned by precedents that have been
established by ages of wisdom and ex-
o%erience, then the life, liberty and
property of the citizen are safe. And
hen the country is ruled by law and
lot by men. In the case before me, as
n all cases of this kind, the judge
nay feel that h law itself is harsh
n that there is no law. He may feel
hat the ruling or conclusion to which
lie is thus driven may, in the particu-
ar case, be what he and others might
Ieem and which in fact may be an
INJUSTICE; but the court has no legis-
alive powers. We are aware of the
act that Legislatures are constantly
allied upon for relief in such circum-
tances and in supplying h deficien-
les of the common law and the short
omings of the statutes.
LAS I understand the authorities
ouching this matter the court or Judge
f probate, in the absence of a statute
0 providing, has absolutely no power
T authority, however much PERSONAL
7 he Or the court might desire to al
NV an expense of this kind. It is a
latter that rests purely and solely
18th the Legislature, and whenever a
ldge or a court drifts away from the
aw and enters the domain of the
1dge's own personal views of the mat
er in hand, disregarding those rules
established by ages of wisdom and ex-
erience he is like a ship at sea with
ut compass or rudder. I
My attention has been called to the
ase of Motley VS.. Brown 06 Haw.
This authority in my opinion ap- {
lies only to the expenses incurred In
he administration of the estate. The
in question was net in
lrred in the administration of the
state nor a it be considered an ex-
ense therein. An executor is not
ound to become such. He may accept
decline. and if he chooses to accept