The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1863-04-02

read - as 70 prohibit only the selling. giving,
purchasing or procuring FOR . native. but not
the selling or giving Ia him. This is certainly a
strained and hyPcrcritical reading Of the language
of the statute. The meaning of that language,
when read and construed in the ordinary manner,
Is 50 obvious that | am surprised at the amount
Of labor and ingenuity expended by counsel IN
the endeavOr 10 build W u construction which,
upon examination. Will be found 10 destroy Itself,
BY rendering the law almost nugatOry IN practice;
and no court will adopt such a construction when
the language Of the statute Is plainly susceptible
Of one that will give effect TO the ayOwed pur-
pose Of the Laws makers, and the declared object
Of the law. Did the words used by the Lcgisla-
ture. when construed according 70 their natural
sense and the connection in which they stand.
result in an absurdity, and fail - effect the de-
clared object Of the law, it would not be within
the province of the court, by supplying words
which the Legislature had not used, To obviate
that absurdity and effectuate the supposed inten-
ton Of the law makers. They must use Ian
guage themselves susceptible Of such a construc-
ton as will express their intention, or that inten-
ton cannot be enforced. But where the legislature
has used language which Is susceptible Of two
reasonable constructions, one Of which would defeat
the declared object Of the law, while the other would
efec;uate that object, it IS the duty Of the courts TO
adopt the latter, for that must be presumed to convey
the intention Of the Legislature do not admit tina;
the construction contenlei for on behalf Of the de-
fendaut in this case, Is reasonable or practicable, but
merely TO state what would be an obligatory rule
upon the Court, even s~uppOsing the defendant 10
stand in 80 GOOD q case. Again, admitting that the
wording OF the law might have been improved, or its
meaning placed beyond the possibility OF Il doubt, by
the use OF the proposition to, that circumstance can
not be pressed beyond its legitimate weight. In the
case OF Bioxan IS Esee, d BarnweIl & Cresswell,
la, the court said 1.-The sense and spirit OF an
Act, hOweyer-its SCOPE and intention, are premarily
to be regarded in the construction, and it matters
not that the terms used by the legislature in deliver
ing Its commands, are not the mos; opt to express its
meaning; provided the object be plain and intelligi-
bic, ard expressed with sufficient distinctness to ena-
be the Judge to collect it from any part Of the Act.
The object once understood, Judges are 80 to cOnstrue
the Act as to suppress the mischief and advance the
remedy" In the case OF Rex Us Ramsgate, 6 Barn
well * Cresswel, 7l2, the court held the following
language " When the Legislature has used words
Of a plain and definite import, it would he very dan
gerCus 10 put upon them Il construction which would
amount TO holding that the legislature did not mean
what it has expressed
The language of the statute before us is not ambigu-
Gus. The words used by the Legislature, taken in
their usual signihcatiOn and proper connection,
express n clear and unmistnkable meaning, thus
50 Whoever shall sell any native of this Kingdom, or
for his use, any spirituOus liquor. sc whoever shall
give any native OF this Kingdom, or for his use, any
spirituous liquor, &c; whoever shall purchase or
procure for and in behalf Of any native of this King
dom. or for his use, any spirituous liquor. &c, shall
be punished 10y "A fDe,' &C. | see no necessity for
the use Of the proposition TO in order 10 make clear
the intention of the Legislature to prohibit all per-
sOns from selling or giving splrituOus liquors to any
native, or for his use, and frcm purchasing or pro-
curing for and in behalf of any native, or for his use,
spirituous liquor. To conclude upon this point, let
Us look at the reading contended for by the defence
90 Whoever shall sell for any native of this Kingdom
or for his use, any splrituous liquor, &c; whoever
shall give for any native Of this Kingdom, or for his
use, any sFirituous liquor, &c, whoever shall pur-
chase or procure for and in behalf Of any native of
this Kingdom, or for his use, any spirituous liquor"
&c. | cannot hesitate for "A moment TO say that this
construction seems TO me altogether unreasonable,
and that it must be rejected as unsouDd. But if any
doubt can exist upon the construction of the English
-ar=.In 80 T. ,n.r . = f.. lie N. as rm- l-
reference to the Hawaiian version. the language of
which is so clear that the meaning cannot be misun-
deTstOOd; and although | merely refer TO the latter
version, in this case, for the purpose Of a parallel
reading, the court, in case of an irrcconcilable differ
ence, would have to follow that version as the stand
ard. (See Metcalf rs. hahai, l Hawaiian Rep, 225;
Hardy rs. Ruggles, ct ais. Ibid, 255)
1t is argued further, by defendant. that section l,
chapter Az of the Penal Code is unjust and unreason-
able in its consequences. and therefore void. I am
unable TO see the force Of this point as stated, for the
consequences of that section are these, that If any
person violates its provisions, whether he be a
licensed vendor or not, he subjects himself to a fine
Of not more than $500, or imprisonment tor not
longer than two years. iii is meant to be argued
that il would be unjust and unreasonable to exact from
any vendor who may violate the law the penalty pre-
scribed by the Penal Code, in addition to the penalty
OF his bond and the forfeiture of his license, under
the license law, that Is n matter with which the court
has nothing TO do, even admitting that the several
penalties could be legally exacted, upon which | do
not venture any opinion. Ii counsel mean TO say
that the provisions of the Penal Code and of the
license law, taken together, make an unjust and un-
law, because those provisions prescribe a
much heavier and more severe punishment against
any licensed vendor who may sell spirituous liquors
10 natives, than against an unlicensed person who
may commit the same offense, | must say that | do
not perceive anything unjust or unreasonable in such
u law. 1t IS obvious that licensed vendors possess in
a hundred fold over unlicensed persons, the facilities
for n systematic violation of the prohibition, and that
their temptations to do so are correspondingly great.
IL was reasonable, therefore, on the part of the Legis-
lature, to adjust the penalties accordingly. 1t is the
duty of the Legislature to affix such an amount of
punishment to the commission OF an Ofeuse, as will
tend TO deter men from such commission, and not to
ascertain the maximum which offenders can afford to
pay, and still 60 on violating the law. 1t is not for
the court TO say, in any case, that the penalty is e-
cessiye and unreasonable, and that therefore the law
Is void. Take, for example, the oifense Of smuggling.
For a single act Of smuggling, however small the
amount, a valuable ship may become forfeited to the
the punishment was unreasonable, and therefore the
court should hold The law TO be void, would deserve
no attention.
The next ground of defence to which | shall advert
Is. that the law prohibiting the sale of spirituous
liquors to natives Is in conflict with the provisions of
Articles 81 and 10th OF the Treaty with France. BY
the 10th Article of that Treaty, il was stipulated on
the part Of the Hawaiian Government, that the i'm
pOrtation and The sale Of wines and brandIes of French
origin shall not be prohibited in the Hawaiian Isl
Article ID, the principal end of which is 10
regulate the commercial and maritime intercourse of
the respective subjects Of the two Governments, con-
tains, among other provisions, the following They
shall have the right 10 buy and TO sell of and 10 whom
please, without any monopoly, contract or ex-
elusive privilege of sale or purchase, prejudicing or
in any manner whatever their liberty in