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

subjects, EtS.4lLE H., = VISITING lAI> A4ueAOtH IA
purposes OF trade or mmerce an equality OF rights
and privileges, il regard to such trade or commerce,
with Ills Majesty's own subjects That the hawaiian
Governu ent has never understood the treaty ~stipula-
tioEs referred TO in the light now urged upon the
court 10y the defendant, Is evident The prohlbItory
law which l. now sought to be over;hro"n, was in
force icF many years before the date OF the French
Treaty, and II the provisions Of that Treaty had been
understood by His Majesty's Government a. conflict
ing with go important a law, an immediate change
must have followed. Yet three successive sessions of
the Legislature have been held since that date, and
the Legislative BODY has not been called upon by the
Executive 10 repeal the law in question, in order 10
give effect TO the Treaty. 1t is said that the court
has nothing TO do with governmental policy. But
this IS not true to the extent which Is claimed. for
the cour, is supposed to know, and bound to take
notice of, the general policy of its own Government.
The juiicial recognition Of that policy becomes
necessary III many cases, as throwing hight upon the
meaning of statutes and treaties. In this case, il Is
clear that if the Hawaiian Government had ratified
the provisions Of the Treaty, understanding them TO
mean what is now contended. a line of policy pursued
ever since the recognition OF Hawaiian Independence,
must suddenly have been abandoned. But neither
were those provisions so understood by the late Com
missioner OF France, who negotiated the Treat: on
behalf Of his Sovereign 1t appears, by reference to
the Treaty and Protocols, rs printed by order Of the
King in Council, (see page 100 that a suggestion
having been made, in Privy Council, that the Treaty
. provided for the sale of intoxicating liquors to the
Kings native subjects, contrary 10 the Hawaiian
municipal laws the Commissioner solved that
doubt, officially, as follows: THAT II had never
entered in.o the intention Cf France TO interfere in
the system of the Hawaiian laws which regulate the
sale o, liquors TO the natives II Is not the intention
OF France now. The object of the 10th Article is to
protect foreigners, especially the French, against all
systematic and absolute prohibition, and at the same
time leaving to the Hawaiian Government every
liberty in the internal regulation Of that special COM
merce." So, then. ii appears that the existing NUM-
cipal laws are in conformity with His Alnjesty's
Treaty eugagements.a rs mutually understood by the
two Governments and this part OF the defence must
therefore fall 10 the ground.
The most important ground taken by counsel for
the defendant, is the one which yet remains 10 be
considered, namely, that the problbitory law IS III
conflict with certain articles OF the Constitution, and
therefore void. The articles relied upon are the LIST,
li;h and cd. which read rs follows:
Article /. God hath ere ted all men free and equa, and
ne ana li..riE 'hs IEn' "l aGqI "a . ~ - ~ III an 49,
property - ana OF TGr.T KiEg n cdo Ui,et.'I his '1 Go7e rmI hapi sT tLe
commons good for the protection, safety, prosperity and fappi-
trres, Of auy one man. family or class Of men among his sub
jets. Therefore, III making laws for the nation, regard shall be
had to the protection, interests and welfare not only Of the King,
the Chiefs and Rulers, but of all the people alike.
Article o.. Full power and authority are hereby given to
said Legislature, from time to time, to make all manner Of
wholesome laws. either with penalties or without, as they shall
support and defense of good government: Provided the same be
not repugnaat or contrary to this Constitution.
1t is argued that section l, chapter AZ of the Penal
Code grants privileges and immuuities TO one class Of
citizens which il denies 10 others, under like circum-
stances. But this is an incorrect way of putting the
case. The law referred to grants no privileges or
lmmuultleS to any CLASS. On the contrary, II Is Il
prohlbitory law, forbidding all men alike from selling
or furnishing spirituous liquors to native subjects.
The true mode of stating this point of the defence, it
seems 10 me. is this the object and effect of the
prohibitory law being TO prevent the sale Of liquors
to native subjects only, and not TO all subjects alike,
it is at variance with the spirit Of the Constitution.
This point, therefore, although stated separately by
counsel, is comprised IN the general ground, and Will
be covered as | proceed.
In the case of Rex rs Sawyer, tried before this court at the
July term, 1859. the defendant was prosecuted under the statute
prohibiting the manufacture OF intoxicating liquors. One
ground of defence relied upon in that case was, that the prohi-
bi;ory law is repugnant to the lst article of the Constitution,
and therefore void. The court overruled that part OF the de-
fence and l took occasion at that time to express my opinion,
that the ist article Of the Constitution is to be regarded merely
as a preface, announcing and recognizing, in general terms,
mon rights, which lie at the foundation Of every liberal, @tusJi-
tutionai government, and upon which the Hawaiian constitution
principles, the language in which they are declared is not to he
Understood in an absolute and unlimited sense. That language
must be interpreted, and the application of those principles
must be controlled end regulated. by the succeeding provi-
si0ns of the Constitution-by the expressed or clearly Implied
requirements, AUTHORIZATIONS and limitations Of the instrument,
is by itself Of no practical value without their authoritative APP
plication, for, as remarked in the deiendan''s brief: The
fixed standard, and the abiest and purest men have differed
NAV receive a wider Interpretation and a more extended aPpi-
cation, from one nation than from another, and yet both one
political and civil freedom, although III an unequal measure.
announced in the declaration OF rights prefXei. to the Consti-
hut formed a part Of the prrfgce. and were properly styled
sentiments, or principles in general aGcordanee with which
to prove, at length, that those sentiments or PRINCIPLES have
never been interpreted or deemed applicable in This Kingdom,
in the unlimited sense commended for in the present case, and IN
the case If Rex rs. Sawyer.
But it is argued that tie enactment of the Law now under
discussion is what is sometimes denominated class legislation
and That the power Of class legislation, or masking SPECIAL laws,
does not exist, in view of the provisions Of article lith OF the
Constitution. In the case Of Naone Us. Thurston iVol. l
Hawaiian Rep, page 22O), the same ground was raised by
defendant. in resistance to the law Of ISL. imposing q special
and distinct school tax upon foreigners and sui jects OF foreign
birth or Varentage. The court held the law % he constitutional,
and that the Hawaiian legislature a.wH Us had and still has,
the power of special legislation. at least in the matter Of taxa
ton. That d. ci>On, however, cannot BE- regarded as conc!u-
siye I'm the present case. as it did not involve the question Of
equality a. 10 civil rights and privileges, which j. mainly relied
upon in the present case, and therefore this ground of defence
must he further examined.
1t is important, therefore, to ascertain the true meaning and
intent Of the provisions of Article lith nf the Constitution,
already quoted. 1t will be found that the principles embodied
in that Article were, Ike those recognized III the lNt Article,
= part of the declaration Of rights TrehNed 70 the Constitution
Of 1910. That declaration says, " God has also established gov
and rule, for the purpose Of peace but in making
laws for the nation. it is 10y no means proper TO enact laws for
the protection Of the rulers only, without also providing protec-
ton for their subjects neither is it proper To enact laws 10
also and hereafter there shall Ivy no means be any laws
enacted which are AT variance with what Is above expressed"
Declared il says The above sentiments are hereby pub
Iished for the purpose Of protecting alike. both the people and
the chiefs Of all these Islands, while they maintain = correct
that no chief may he able to Cypress any subject,
hut that chiefs and people may enjoy the same protection, I'M
der one a&d the same Law. Protection Is hereby secured to the
persons Of all the people. together with their lands, their build
ing lots. and all their properly. while they conform To the laws
Of the Kingdom, and nothing whatever shall he taken from
individual cNcer; b! express provision OF the laws" The
provisions Of Article l4th Of the Constitution Of 1852 are merely
a reteratipn Of a portion Of the =" sentiments expressed in the
passage just quoted
these sentiments or principles declared and adopted by the
rulers Of this Kingdom. The history Of the country. and the
origin Of the present form Of government are familiar to the
court, and have "a proNmate bearing upon this question Tor
the court is not hound to adopt the construction CoutenGed forby
the defence, merely because general theory might give it a de-
Of couuteuance, independent OF all practice and the pre-
vailiug understanding, since the foundation Of the Government