The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-10-19

5. H. Phillips, Attorney General, for the
Crown.
PER CuR1AN The Indictment was laid before
me some days before the opening of the Term
when it was presented and fo1nd to be true
Bill. The examination Of the Attorney General
Bills before finding them. is scarcely more than a
matter of form with myself Considering the
Importance attached to this case, did however
give some close examination to the form Of the
Indictment, and satisfied myself that it set out
with precision and correctness the statute oiense
of perjury. The arguments on the demurrer
were full and interesting The demurrer was over
/ ruled on the grounds that the Indictment AYERS
all that the statute requires to constitute this
/ offence, and states nothing that is necessarily
inconsistent with the averments, or that author
lied the Court to qussh the Indictment and debar
the prosecution from trial Of the truth Of the
ayerments At the close of the evidence the
prisoners counsel requested the Court to instruct
! the jury that in order to convict they must find
that the magistrate was authorized by law both
to administer the oath and to require it, and the
instruction was given.
In SO far as the grounds Of this motion in arrest
Of judgment coincide with the causes assigned
for demurrer to the form Of the Indictment, they
are within the Judgment pronounced in over
ruling the demurrer. and need no further com
ment. The only point not yet ruled upon, APP
pears in the closing sentence Of the third reason
stated 10 this motion viz Because the facts
set forth in the Indictment are insufficient to
sustain a verdict by tie law Of this Kingdom
Upon the suiicency Of those facts alone TO sus-
tain verdict Of guilty, l have not heretofore
been called upon to decide the question not
having been raised in such form that it properly
could be passed upon by the Court. was not
prepared to order the jury to aequt, until further
consideration. but on this ground feel compelled
now to arrest Judgment for reasons which will
proceed to state.
In view Of the law. and of the facts and cir
cumstances connected with the case, it is by no
means surprising that the Attorney General was
unwilling to take upon himself the responsibility
Of declining to prosecute. The offence proved
to have been committed, in so far as the verdict
Of twelve intelligent men who formed the jury
can prove anything which rests on proof Of the
identity Of handwriting, was high moral Of
ence. The interests certainly OF an official repre-
sentative Of the United States Government. if
not the interests of the Government itself were
concerned. and it would have been no light re-
sponsibility to attempt to anticipate a ruling of
the Court on a new aud rather nice question
Of law raised by the case.
VII first say that l Go not base my concl1-
sions upon considerations either Of international
law or Of the general law Of nations for see
none that affect the case need not refer to
the constant desire Of His Majestys Government
to do all that existing treaties stipulae for and
to extend to officials of friendly nations. as well
as to their private citizens or subjects whose
interests can be advanced every facility and
courtesy which international comfy and usage
equire. This Court has been ever cautious not
% exceed its jurisdiction in matters affectin
oreigners. esteeuing it wise to extend jrFiic
,ut not jurisdiction, and when the jurisdiction is
lear, sparing neither trouble nor expense in Civ
lg the full measure of the law. l believe THAT
several causes in which the rights of foregnerse
7ere adjudicated upon in this Court and an ap-
eal to their home Governments was made bv
heir official representatives, the action Of the |
'ourt has been entirely approved, and it was re-
aTded by those Governments rs very far from
Undesirable that the interests Of their citizens
ere could thus be secured. and legal remedies
btained under strict forms OF law.
Commissions from the Courts Of England and
he United States are frequently sent here to
axe dispositions to be used abroad. So far as l
N aware, the attendance of witnesses in such
ases has always been obtained The duty of
'ourts. under the law Of nations to aid each
Their in eci'ing truth, is fully recognized by this
curt. It is customary 10 state in the Commits
ons, Letters Rogatory, or Letters Missiye. as
icy are termed, that cause is pending in the
of the Judge who issues the Letters.
stween parties named that testimony Of wit
esses named is material to that cause, that they
side within the jurisdiction Of the Court to
hon they are addressed, and to the request that t
leh testimony be obtained aud put in legal form
ID transmitted. IS appended an offer Of recipro-
i conrtesjes whenever requested. Such Com
issions issue 10 Admiralty, Equity, Probate and /,
ommon Law proceedings. and are of considera- /
e antiquity. The compulsory process for at
ndance Of witnesses in such matters may not be =
matter Of treaty stipulation or express statute.
II it has been regarded here perhaps resting on
p general statute Jurisdiction Of this Court !
d far from being ready to say that thesame thing r.
az not be done upon the formal request Of high v
ieials of friendly powers in proper cases. nor 2
at the cases must be confined to causes pending ?
some Court. Bot | think that the cireum- =
inces Of this case would not authorize the :,
agis,rate Rho administered the cath to compel n
e prisoner to appear and testify whether be had NJ
had not written the letter in question. and the o.
Inclusion follows. that the false oath thus "
UNFAIRLY taken does not come within our =
tate definition Of perjury. The distinction
lst be noted between an oath authorized BY T
' when voluntarily taken. and the power to re- ar
ire the oath to be taken. An officer nav be
iborized to administer an oath. and the fact y
II document is sworn TO before justice Of a u
perior Court may authenticate the document -.
Courts accustomed TO respect the official acts q
Courts Of friendly States on due proof Of reg d.
Hty Of proceedings, and Of seals attached to