OF HIS MAJESTY KAMEHAMEHA III. KING OF THE HAWAIIAN ISLANDS; PASSED BY THE HOUSES OF NOBLES AND REPRESENTATIVES, DURING THE TWENTY-FIRST YEAR OF HIS REIGN, AND THE THIRD AND COMPILER'S PREFACE. THE Hawaiian kingdom was governed until the year 1838, without other system than usage, and with a few trifling exceptions, without legal enactments. The bill of rights, proposed and signed by His Majesty on the 7th of June, 1839, was the first essential departure from the ancient despotism. The Constitution which he voluntarily conferred on the people on the 8th of October, A. D. 1840, recognized the three grand divisions of a civilized monarchy, king, legislature and judges, and defined in some respects the general duties of each. These however, were so engrafted on the ancient form of government that there seemed to be a blending of their separate functions, requiring the aid of organic acts, limiting their usual spheres, in order to secure the civil liberties intended to be conferred upon the people. The Constitution had not been carried into full effect. Its provisions needed assorting and arranging into appropriate families, and prescribed machinery to render them effective. Some of the most obvious points in civil and criminal jurisprudence had been in some measure provided for by declaratory and penal ordinances, either proclaimed by the king before, or enacted by the legislature after the Constitution was given. Yet as civilization very rapidly progressed, and commerce with the increase of foreign population largely augmented, these were found in their nature much too loose to satisfy the national wants. These laws and rules, though universally promulgated at home, and somewhat extensively abroad, were neither well known nor understood. From detached fragments they were collated and translated into the English language in 1842, by the Rev. William Richards, who has since been distinguished as one of His Majesty's Envoys to Europe. That translation containing 200 pages, 12 mo., is systematized for reference into 55 chapters, each devoted to some distinct subject of legislation. It will be found of lasting benefit to the Hawaiian government in defining the public and private rights, duties and obligations that existed before the present codification, which is in fact based upon it. Many cases must necessarily arise that can only be measured by the old law. New laws or amendments of the old, cannot divest rights previously acquired, and, as in other countries, so in this, the repealed ordinances must be resorted to in numerous cases accruing before the repeal or modification. Means and remedies may be altered, but the rights themselves, if vested, cannot be constitutionally disturbed. This is one admitted doctrine of civilized jurisprudence. Another of its admitted doctrines, even in the exposition of new laws is, that the old law must first be understood and the mischief intended to be cured by it, in order to apply the remedy. That axiom will of itself render continual retrospection necessary, so that neither the judge nor the barrister will be able, notwithstanding the new enactments, at least historically, to dispense with the translation of Mr. Richards. Criminally, the old law applies to the most heinous offences-to open breaches of the public peace and decorum-and to wrongs towards the person and property of individuals. The native dialect not admitting of distinction, these offences are all indiscriminately called "hewa," which word literally means "wrong." It is, however, for the most part erroneously translated into the English, "crime," regardless of the judicial meaning of that word. Thus the treaty stipulations providing for consular juries in all cases of crime alleged against foreign residents, are made verbally applicable to the least moral dereliction; and the legal distinction between crimes, misdemeanors and torts, does not definitely exist in the old compilation, except by adopting the European and American measure of offences the penalty annexed to them. A misdemeanor would never be understood in England or the United States as a crime, nor the converse, although denoted by the technical name of some crime or misdemeanor; and those nations in contracting with His Majesty for the peculiar formation of juries in cases of crime, cannot have cov ered all the wrongs known in the native by the word "hewa," but not punished as crimes by us. Civilly, the old law likewise embraced the most usual rights and duties of the social relations augmentative of population and incitative to industry. The fundamental basis of landed tenures was declared, and cultivation of the soil, under a feudal tenancy not much differing from that of ancient Europe, was encouraged by relaxing the vassal service. The revenue, derived chiefly from the native population, was slight and utterly insufficient to maintain the more regular system demanded by the increase of foreign commerce and the enhanced value of property; which required something more of the Hawaiian courts than mere investigation of facts. As results of missionary labor, however, the ordinances have been greatly serviceable in preparing the nation for what has since become indispensable to its political existence-a complete code of laws, embracing organic forms of the different departments, particularly executive and judicial, with outlines of their duties and modes of procedure and comprehensive civil and criminal digests. The events of the late Provisional Cession to Great Britain conclusively prove that some more minute and extensive judicature was long since requisite. These national wants were brought to His Majesty's notice by the Ministerial Reports of May 21st, 1845, in consequence of which the Legislative Houses passed the following JOINT RESOLUTION. "Be it enacted by the Nobles and Representatives of the Hawaiian Nation, in Legislative Council assembled. "That having taken into consideration the review of the Constitution made by the Attorney General, which he read before us on the 21st day of May, he be requested to draw out for us a digest of the constitution and laws, and also a project of the organic acts which he recommends, accommodating them to our condition and circum stances. Passed at the Council Chamber, this 24th day of June, 1845. Approved by (signed) KAMEHAMEHA, |