The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1876-04-29
THE KING VS.. AUWAI.

LIE h4nO W. NJ al.
The Supreme Court in baneo has decided in
this case that the prohibitory opium law makes
it a criminal ofense 70 have in ones possession
opium which be bought before the law went into
3
The defence was, that opium is property,
regarded as such By every one, and admitted to
be such by the law licensing lite sale up to
August 18th, 1875; that to retain opium
bought prior 10 that date of licensed vendors
could not be made q crime. without violating the
clauses in the Constitution which prohibit retro
spectiEe laws, which require that all shall be
protected in the enjoyment of their property.
and that no ones property shall be taken from
him without his consent, except a reasonable
compensation therefor shall be paid that the
purchase of opium is not n privilege granted by
statute, but is a right recognized by the Consti-
tuition as Z" inalienable,'' of : acquiring, pos
sessing, and protecting property - and finally,
that while the government was receiving a license
log the sale of opium, it could not be supposed
that the statute intended to make q man a felon
for retaining property bought at that time but
that the law should be construed as prospective
only, especially in view of the difficulty of prov
ing in any case that any particular opium was
bought while the law authorized the sale. The
Court held that the defence was nnsound, and
the defendant was sentenced to forfeiture of the
Opium,-some t~hirty-six tins,-and to one
months Imprisonment. The decision of the
court, part of which which We have copied below,
is as follows Essays Dwarris 10 his book on
Statutes P. l64, : Laws are rules of civil conduct,
prescribed for, AMI attaching themselves to the
future actions of men. They must from neces-
sity and from their nature, be Retrospective,
otherwise they cannot be rules of civil conduct.
Laws cannot attach themselves to conduct
antecedent to the creation of the rules them
selves. This would be a thing impossible; for,
at the time the particular transaction took place,
there being no rule, a law subsequently passed,
was not, and from the nature of the case, could
not have been an existing rule governing such
transaction ; it would not then be, in that case,
a rule of civil conduct.
1.-The conduct of the past must stand acquitted
or condemned, be lawful or unlawful when
judged by rules which had existence at the time
the transaction took place.
1" 1t is clear that q law undertaking to pun
ish an offence mmitte before the existence of
such a law, and by such a law only declared
criminal, would be 8 Retrospective, and there
fore, void. The reason, however, that retro
spective laws are forbidden, is that they are
oppressive and unjust. To apply this principle
to the case at bar The defendant in June, 1875,
bought a drug, opium, for the possession of
which (by the terms of a law enacted in August,
1874, he well knew he would be liable 70 be
punished from and after August 18th, 1875.
4" He cannot say that the law is retrospective,
for he voluntarily acquired the property with
ample notice of the law, and continued to keep it
in his possession after its possession was unlawful.
"The judgment of the Circuit Court is af-
frmed."
The Court in express terms, speaks of opium
as g property" and if property, is it not at least
suppositiye that the precedent is now established
whereby all property might be made subject to
the same restrictions, or even placed at the dis
posal of any body of men, now existing, or to be
hereafter created to supervise the pecuniary well
fare of Hawaiian subjects instead of their health
alone, provided a future law should be enacted
to that effect. This may be thought a far fetched
superstition; perhaps an old style of hyperbole;
but we doubt if ever the serious thought was
ever entertained by the promulgators of the opium
law in question, that its application according to
letter, might be made to curtail the rational lib
erty of the morally innocent and unofending of
the community; making felony the common brand
for those who possess preparations of opium,
whether to be used in humane intelligence, or for
the vilest purposes of lucre alone, involving the
criminality of wholesale degradation and death.
Once and for all, let US say, that the possible
consequences of this law are such as might well
appal by the glaring injustice they carry with
them; by the extensivencss of their application,
and by the indiscriminate misery they might be
made to infliet upon all classes of the community,
if impartiaTly and Systematically enforced.
A druggist in this city, although morally in
nocent of any offence, not long since, was victim
lied, and multitndes of equally innocent persons
might be deprived of their liberty and
subjected to the i~ndignity of a prison uniform
under the provisions of this indiscriminate law.
1t is criminal to import or possess (Which COW
ers selling and giVing) opium or any preparation,
except in The question of possession alone which
is justified by the prescription of a physician; they
criminal who have in their possession any
opium or preparation thereof which they may
have obtained prior to the operation of this law
which would mean a great deal. if the business
of their drng-stores were inquired into.
10 the Editor of the Pacific Commercial AdUertiser: !