The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-12-08
Supreme COurt-At Chambers.
BEFORE HARTwELL, J., NOV. IL, 1869
On the PETITION Of Wong Krdi, in behdn Of
Apsna, for Writ Of Habeas CoPa&

On the RtitioR Of Wong Krdi, ia behalf Of
Apsaa, for Writ Of Hdbeas Corpus.
The Marshars return to the writ was as
follows:
"In obedience TO within writ, | do bring
into this Honorable Court the body of the
within named Apuna. Said Apuna was com
mitted to my custody on the l2th day OF Au-
gust, A. D.. 1869 by virtue Cf Mittimus, 10
me directed, from the 4th Judicial Circuit
OF tue Hawaiian Islands, in words and figures
as follows, 10 wit:
"'Circuit Court of the Hawaiian Islands,
Nawlliwili, August Term, A. D., lS69.-To
w. c. Parke, Esq, Marshal of the Hawaiian
Islands, Greeting: Whereas Apuna, (P. } has
been convicted at the present Term OF this
Court, of the crime of selling opium without
license, and has this day been sentenced by
the said Court TO pay fine of Three Hun
dred tS3O0.0O) Dollars, with costs OF Court
Seventy-seven 5000 (S77 SO) Dollars,
Therefore, you are hereby commanded
10 receive the said Apuna into your custody,
aud see the above sentence duly executed
Witness the Honorable II. A. WIDE
MANN, Cd Associate Justice of the Supreme
Court, at Nawiliwili, this 18th day of August,
A. ID. 1869
"[seal.l (Signed,) DUNCAN MCBRIDE,
Clerk
And do hereby return this writ com
piled with, this sth day of November, a. d.
1869. W. c. PARKE,
Marshal
''And l do hereby make further return,
that the said Apuna now is, and has been
held 10 hard labor since the commitment to
my custody. W. Z. PARKE,
Marshall
The petitioners traverse to the Marshal's
return denies that the Court had any authority
SO to sentence or that there was any crime by
the prisoner committed TO authorize or JUS
tify the sentence imposed, or the issuing of
such mittimus, the same not being justified
by the law under which he was convicted,
= viz. selling opium without license; denies
that the said Mittimus is the process of the
Circuit Court of the Fonrth Judicial District,
as it does not bear teste of said Court; de-
nies that the Marshal, under said process,
has authority to detain and imprison said
Apuna at hard labor, or in any other manner,
as he is commanded to execute the sentence,
and imprisonment, or imprisonment at hard
labor, forms no part of the sentence nor OF
the command in said mittimus; denies that
the Marshal has, under said writ, or by au-
thority OF any law of this Kingdom, power
to execute sentence in any manner for fine
with costs; denies that the Marshal has au-
thority to execute u sentence for fine, or fine
and costs, at hard labor, unless such sentence
is so pronounced by the Court, and recorded
in the mittimus.
PER CURIAM: The Constitution provides
that The privilege of the writ of Habeas
Corpus belongs to all men, and shall not be
suspended, unless by the King, when, in
cases of rebellion or invasion, the public
safety may require it," that "no person shall
be subject to punishment for any offense,
except on due and legal conviction thereof
in a court having jurisdiction OF the case;"
that "nO person shall be deprived OF life
liberty, or property, without due process of
laws" that "every person has the right to
be secure from all unreasonable searches and
seizures of. his person." &c; that leach
member of society has a right to be pro-
tected by it, in the enjoyment of his life,
liberty, and property, according to law"
[Articles 5. 6, 9, IL, and IA
The Statute gives Justices of this Court,
in Chambers, jurisdiction "to issue writs of
habeas corpus, for inquiring into the cause
of any alleged unlawful Imprisonment or
restraint" [Sec. S55 Civ. Code
What is this Writ of Habeas Corpus? In
many of the United States, there are statutes
defining its nature and force, but they are all
essentially alike, and are all in substance the
same with the English statute of 81 Car II.
1t is unnecessary to refer to the different
Writs of Habeas Corpus ad testifednd,lnl, ad
sdtiJdcie1dUDa, etc, which are SO named to
denote tie purpose for which they were
issued. The writ always intended, if not
otherwise described, is the writ ad Suljicien-
dun ct recipiendum, which was designed to
release persons from illegal confinement
The writ was known in English law long
anterior to MAGMA CHARTA, which secured
the acknowledgment of common rights as
follows:
49, "Nulus liber homo capiatur, vel im-
prisoneiur aut dissaisiatur aut utlagetur aut
aliquo mOdo destruatur; nee super cum
ibimus, nee super cum mittemus, nisi per
lrgale judicium parium suorum, vel per
legem terre."
40. "Nulli vendemus, multi negabimus,
aut differemus, reeium aut justitiam.n
80. "No freeman shall be taken or impris-
oued, or dspossessed, or outlawed or ban
ished, or in any manner destroyed; nor will
We convict or sentence him, except by lawful
judgment of his peers, or the law of the
landn
40. ITO none will we sell, to none will we
deny or postpone, right or justice"
Lord Chatham, in speaking of these words
in the House of Peers, used this memorable
language: "They tyour ancestors,) did not
say, these are the rights OF the great barons,
or these are the rights of the great prelates.
No, my lords: they said, in the simple Latin
of the times, GullHs liber homo, and provided
as carefully for the meanest subject as for the
greatest. These are uncouth words, and
sound but poorly in the ears Of scholars;
neither are they addressed to the criticism Of
scholars, but to the hearts of freemen. These
three words, Eallas Rber homo, have mean
ing which interests US all; they deserve to be
remembered, they deserve to be inculcaied
In our minds, they are trorth all The Qassies'
After the Charter OF Runnymede, the Pc
tition of Right and the Bill Of Rights were
secured, and the three together form " The
Bi6le Of the English COnstituti0a." In 1879,
the Habeas Corpus Act Of 81 Car. ii, was
passed. The Act of Sc Geo. III, extended
the power Of the writ, aud enabled the jndge
hof rrb ha rrrrif Il e.