The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-07-16
The CONSTITUTION of the suprems Court.

III following * an abstract of the argument
ON this subject which occurred at the opening OF
the trial Of L. Dubois on Thursday last (See our
report of Supreme Court procsedingsl.
Mr.. Dole said in support of his motion, that
in 3 case Of this Importance, where a foreigner Is
charged with felony, it seems to Us propert to make
this protest against the present constitution OF
the Court, inasmuch as defendant may be pre-
iadiced. and he may be subjected TO tnrther
litiSation and expense. 1t seems 10 be q matter
of very little doubt. Laws have no force at all
if they are modified from the Constitution.
The learned counsel here quoted from the Con
~stitution where il is written, THAT the supreme
Court shall consist of a Chief Justice &c- IL
cannot be argued, whereas it only takes one
| Judge to conduct the business, that the Court i
complete. If there is not a constitutional court
to try Banco cases, there Is not a court to Try
| nisi prias cases. The defendant does not Wlsh
TO have his case tried by a court that cannot
carry it ont to the final conclusion. 1t Is not
fair to the prisoner and ii ought not to be asked
He is innocent before the law. and he Is now
entitled to a trial or his liberty.
Mr.. Hartwell requested to be heard on tins
| subject. tie said, it is the most serious question
that can come before the highest tribunal OF the
country. 1t is not only a very hazardous thing
but it i against all policy, and every proceeding
of the court in its present form, Is against the
form of ahe law. What is a Court q? Chief JUS
tice and Associate Justices, Clerk, Marshal, Jury
&c. If the present term were held without "a
jury. could a person say then that the
Court was in form. Does it rest with any per
son TO say otherwise. 1t may be all very well II
no one is hurt, but il appeared TO HIM (Ar'
Hartwellj in all sincerity that this is triiing
with the solemn constitutions of this country.
Where could a prisoner go to get out n wrlt OF
Habeas Corpus if there is no constitutional
court. 1t is a question of the fundamental law
of this Kingdom. The Constitution cannot be
frittered away by Statutes. The learned counsel
said he was born and brought up to beleVe IN
the solemnity of n written Constitution and IT
made him shudder to think it can be disregarded
with impunity. 1t might be said there was no
intention on the part of the Government to play
fast and loose. He inferred the Government
does not admit the non-existence of the Court.
He could not defend his client and keep silent
on this subject.
Mr.. Russell said he had but little to add to
what had been already said, but thought 1t well
| to draw attention to the fact that the defen'
dants about to be tried are of different nationals
ties. Dubois is an American citizen, Father
Larkin is n British subject. If tried and pun
ished by a court that was not properly constl
tuted it might lead to future complications Will
other nations.
Mr.. Preston who vas acting as Crown advo
cate, upheId the present CoHstltulloH Va II
Court. He quoted from the statute wherein
provisions are made for absence or vacancy o
one of the Judges. If there is no Court, tn
defendant can be taken back to the gaol, but 4
I is too late to ask that he he discharged becaus
there is no Chief Justice.
Mr.. Dole added that eXpediency and polio.
s had little to do with this question:. Absence /
not IA vacancy. 1t is not safe 10 patch up wha
I cannot be patched up. 1t would make troubl
for the future, and make liberty uncertain. tn
! way in which this matter is brought before tn
8 Court is inevitable. To be a judge of tn
/ Supreme Court is one thing, and the existenc
of the Supreme Court is another. AT the bes
that can be said, there is an uncertainty abou
5 the present state of affairs.
Mr.. Austin said in reply to the Court that b
. had not examined the question with particular
ty. He considered 1t a very serious question
4 and conceded with the views expressed in til
= motion before the Court.
Q His Honor said the matter had occupied b
. attention since the death of the Chief justice
! He would take the matter into consideration.
The Court adjourned at noon, and on re-a
n sembling at / 30 p. NJ, His Honor delivered ii
: following Judgment, overriding the motion.
The prosecution moved that a jury be i'll
o panneled to try the case, and thereupon Ia
t counsel moved for the discharge of the defen
e ant, on the ground that by the death of the In
, Chief Justice Harris, aud the failure to fill Il
u vacancy thereby made, there is now no Supren
e Court as provided 10y the Constitution.
1t is objected by the Crown Attorney that II
defendant having pleaded to the indictment
= this Court, before the same Justice, since Il
e death of the Chief Justice, he is now conclude
e from Directing tCsthc 2tlor Con
Cue 1urISdIc.. n On TIE -
ley to which he has thus submitted himself.
Mo appears to me that a question as vital as Il