Hawaii Holomua, Volume III, Number 180, 4 August 1894 — "PER GUARDIAN" [ARTICLE]

"PER GUARDIAN"

Tbo (leeiaion in tbe McGrew divorco ca.se bas fiua)ly been publiaho(l, aud the opiuioua of tho judpos aro befoie the puhlie. Mcasra. llickorton and Frear reuder a decision in whieh the "divorco pcr guardian is authorizod. Mr. I3ruuson sitting in the plaeo of A. F. Judd gives a dis--aonting decision. We have iu forraer iaauea made aercral referencea to this ca.se, aud our criticism has beeu very advorae to tho raajority of tbe court. A studv of their decision eonfinns ns in the stand whieh we have t«kou, aud illustnites plaiulv Ihe laek < f jiulgnient. of good law, audof justice whieh prompt«d the raajority of the court in deciding as they did. Tbe decsioDs are priuted in tho Adverti$er, and wo encour«ge professional acd layraan iu reading through the evnporations of the Frear- 13ickerton eomhiuation aud the dissenting opinion of Mr. Uruoson. lt is not for us to critizise the decision of the learued judges, but the poiula raised by the majority of thera are so outrageously absunl as to make them deserving of eommenl. The two geuUeratn who coutroI the Supromo C’ourt of the Uawaiian islauds do not substantiate their decision by a single quotaUon frora any authority. They siraply ndrait that while the "law in Mr. 13runson’s decision is good, the "policy” of the day deraands thera to take a ditfereut view. in advocating the right of a guardian the two Iearned judges state that' tho gaardian is appoinUnl for the benefit of the ward, and if it appears for the ward’s benefit to bave a divorce, the gaardian should be allcwed to bring the proper proceedings, since the wanl bimsel( cannot do so. Tbis is the basineas of tbe gaardian.” lf tuat theory is good raay we < ask ihe learned jodges to i tell us if there are aoy reasous, i why a non compo$ mentis sbonld i not be able to contract a mar- i riage per guardian? Let ns im- * •gine tbai a son of one of tbe I learned jadges sbould prove bira- < self an idiot (wbicb would be i impossible. and to vbicb sugges- < tiou we say ‘ God forbid”). and l we were appointed bis goardian e (wbich God aiso forbid.) And e wiihiu our bonest idea it would z be found for "tbe benefit of onr s ward to contract a marriage, say t «riib a girls backed by spondo- a

liek*. «nd »he shoold prove williog.’* then the goanliaa aeconling to the dec«wioa of Frear ! A Bickerion woohl »c* as a precexlent and «aeli a toArriage ( be eontrwcttd. Ttie di<««riitiQg opinion ol Jadge Bninson is s rery clever p?»j>er. We take pleasure in qaotmg bisfioisbing wonla whieh I read as (ollowa: Tbe qaestioo of policy in tbis I or any otber giv«o case. is one for tbe Legislatare aod not for ; tbe Cbart. Qaestions of expedi- j ency are addressed to the Eieen- | tive. policy to tbe Legislative, j and the law to the Jodicial. £acb i» declared to be a separate and independeut brancb of tbe GoTernment, aud neitber sbonid , trencb upon or exercise tbe ' powers of the other. There is ona point in Jndge Branson’s opinion in whieh no modern jurist or any intelligent lavman ean eoneem. He elaima tbat the demurrer interposed by tbe defedant must be beld to admit nl 1 the allegatious of the bill, including tbe adultery cLarged. and tbat, it isconceded, constitutes good and snffic : ent ; ground for a divorce. Tins is a fictitious piea at oue fcime fveqoently sopported by Courts in Araerica. It would virtually mean, if supported, that tbe editor of tbis paper. in a recent libel suit, plead guilty, because lie entered a dernurrer ag«inst the charge as preferred. We believe tbatJudge Brunson whose reputation as a learned jurist is well-known will bardly hold that ilie theor\- established in his decision is soond. The merit of a case ean never be settled or anticipated by the proposition of a demurrer. That’s good law. Both opiniona are worth reading. The one backed by the majority shows that “policy” rules onr Courts, the one signed by Brunson proves, that tbere is one man at least who knows and espouses law.