The Hawaiian gazette., 1870-03-02

of the Treasury, and if he should support
the Appraisers-so be it. As we have
said before, the best of counsel, after ma
ture reflection, in view of the protective
nature of the Tariff, did not hesitate to
advise him that this would be legal and
right. Upon this point, the Judge re-
marks:
Nor does the character of the device, whether
imsy or apparent, readily with difficulty to be de-
ected, provided it be fraudulent, affect the question
The degree of skill, ingenuity cunning with which
the fraud is contrived can make no difference. Nor
gentlemen is it true commended, that the forfeiture
in such limited to the goods in relation to
which such fraudulent practice is used !"
And that seemed to be the whole point
1t was denied, for the Refinery, that it was
FRAUDULENT, or that there was any SKILL
or CUNNING used in the matter; but they
averred it was an honest attempt to bring
the article within the grade admitted by
the law at 8 cents per pound.
| 1t will be seen that the learned Judge
did not approach the case with so much
nonchalance as some of our fellow citizens;
for he remarks:
strucons, thirty in number with the request that
/ would give them to you the law in the
They may all be treated refused,
except far as they are contained in what am
about to say.
II approach, gentlemen, the discharge of my duty
in this case with sense of responsibility, only
because Of the importance Of the proceeding but be-
cause, in the view take Of it, its determination must
depend upon the instructions given to you the
matter of law. / have been unable to discern any
matters Of fact that seriously eontroverted, and
upon which you called upon to pass"
From this, it will appear that the dis
tinguished Judge felt the responsibility,
and that the facts were "not seriously
controyerted y and the Judge, in fact,
though not in theory, took the matter
from the jury.
And further on, he says:
81 1t will strike you as curious that Government
should affirm that practice had been resorted to
which is morally and legally fraudulent and that this
practice Continuance should be admitted to have
been used, and should be defended and justified on
legal and, believe, moral grounds 1t is not often
that counsel of distinguished ability and high charac
ter totally at variance upon moral as well
legal questions"
Thus, again, it appears that the " con-
trivance" was admitted" and the Judge
believed" to be defended on "MoRAL
grounds" as well as legal. He AYERS that
counsel of distinguished ability and high
character" are at variance upon moral
as well as legal questions" and he states,
as result of his experience, that such
does not often happen; and referring to
Mr. Gordon himself, he speaks of him as
Tic spirt, hs great mental acUity and rared attain
Haents."
Surely, one must have great confidence
in his own legal and moral discernment,
or great want of modesty, who will ven
ture, after veteran Judge has thus
spoken, from his judgment seat, to sheer
at another gentleman to whom each of
the qualities attributed by the Judge to
Mr.. Gordon will apply, to by no means
inconsiderable degree, as one of char
coal notoriety," because he has taken
similar view.
Again, says the Judge:
- 1t may appear to of ynu, gentlemen, that
there has been but INNOCENT MISTAKE as to the
law a FALSE CONSTRUCTION given to the statute; that
for this mistake the confseaon Of the goods is too
severe penalty. But you are not
at liberty to be Influenced by these considerations
Mr.. Gordon's ignorance Of, MISTAKE AS TO THE
LAW can him. He did this act at his peril,
and if the act be an ofense under the statute the
penalty of the law attaches"
Surely, that can not be an act to which
an unenviable notoriety," damaging to
ones personal reputation, must attach,
when the Judge uses such language re-
garding it, whilst delivering his charge to
a jury; nor can the justification of it in
dictate great want of moral perception,
except in the eyes of those who are pre-
ternaturally wise and discreet, and whose
wisdom is-as the lawyers say-er post
fdcto.