The Hawaiian gazette., 1883-03-07

lam's Office, aud 60 out to the Attorney Generals
The Marshal went ont and left me alone. At half
past eight he came back from the Attorney Gen
erals, and told me to 60 to kawainuis with him 10
deliver this bulletin.
W. C. Parke stated Il went to Kawainui's
Office on Friday the sd Feb. taking with me nv
clerk Mr.. Hopkins. In addition to what he has
stated, | asked him on arrival at Kawainui's,
whether IT was written on the board that people
going TO the iwas without an invitation would be
kicked out by the Chamberlain. He said it was
80. told ]. Q. kawainui that he was wrong in
publishing that, as it was placarded about the
streets that anyone could so in without invita-
tion. He said yes, that came out after issued
he bulletin ! then said " want that sheet =
He opened the front of the frame, handed me the
paper and drove of. Afterwards called several
times At bis office to return the paper. He came
to my house and said he was afraid he was going
TO be arrested / then drew out receipt reading
that he had received from me bulletin in same
condition without mutilation or change, DC, ana
asked him to sign it, offering him the bulletin.
He refused to sign the receipt, so | told him he
could take it without a receipt, He refused to
take il.
Cross examined: ! had the bulletin board in
the carriage, do not remember whether | or Hon
lns took down the board. had no warrant |
had no authority. have been Marshal 50 wears
He refused to answer the question, if he knew of
any precedent for his action. did not offer a
receipt for the bulletin when took it. After tax
ing the bulletin, passed it into the hands of the
Chamberlain. If what be heard was on the the
bulletin was there, he wanted Kawainui TO take it
down. he did not ask me to bring it to him.
! wished him to see the exact words on the board,
as it had been represented to him there were words
there that were not there.
The Attorney General in his first words in arpu-
ment for the defendant acknowledged the weakness
of his side of the case saying in substance, that
the in its whole bearing was a very important
one. Marshal Parke although not acting in his
official capacity had made a mistake and the
learned counsel could not say that his client had
Raart 60, ID hal had. 4.,..s
right to be protected IN the possession of their
property. The Marshal had however only taken
the bulletin board from the office to the express,
that action the whole trespass, The trespass if
any, very slight, and would be more beneficial to
Mr. kawainui in the sale of his paper, etc, than
injurious.
Mr.. Dole attorney for the prosecution, said this
was most important case. The evidence on both
sides showed that kawainui regarded himself as
in the hands of the Marshal Instead of resisting
he looked upon Mr.. Parke as the symbol of author
lily. This trespass took place, he did not resist.
The plaintiff asked one small favor of this high
Official that had trespassed. He said IF YOU must
take the bulletin, give me back the France The
bulletin did go ont of the Marshals possession
II is true that the actual and pecuniary damage
done IS small; the value of the paper is nothing.
As matter OF news, it was not of great import
ance as it occurred near the close OF the day but
the case as matter of principle is not small it
was of vast Importance. There were four articles
OF the Constitution outraged. Mr.. Dole quoted the
9tl ttu l-ti ana IAN ArtlCles OF the constitution,
all Of which have particular reference to the pro
lection of life, liberty, and property, according to
law,
Now, almost Immediately after the ending of a
great ceremony when the highest official executive
in the Kingdom, next to the Ministers, outraged
-four of the Articles of the Constitution he looked
upon IT as matter of great importance. 1t is not
simply the case of ]. L, Kawainui against W. c.
Parke; 1t is the whole population against official
aggression. If the Marshal can do this with i'm
putlnity other officials can alse Counting houses
may be entered, books and papers may be taken
TO the Palace and after being read by the Cham
BERLIN returned. Every household may be
searched. 1t was usurplng of the personal rights
which the Anglo-Saxon held as sacred but which
were not yet properly appreciated by the Hawaiian
This principle was instituted under the Magma
Charter in the reign of King John. Official des-
potsm is direct invasion of the constitutional
right of citizens The Marshal was not authorized
to do as he had done but he received the sympathy
CT officials and the bulletin was read within the
sacred precincts of the Government. This bull
letin was held in possession of an official in the
Kingdom.
Without warrant or authority, the Marshal took
the place OF discretionary Court, And in this he
represented certain set of officials who are care
less or ignorant OF the rights of citizens If such
actions were permitted citizens could no longer
have the protection of courts of law which seek to
prevent oppression, there will be no use of courts
If Palace officials could order thus. He quoted
many instances where heavy damages had been
inflicted for apparently trivial offences. He quo
ted atlength from Sedcwick and a speech of Lord
Camdo's. Mr. Kawainui was frightened, think
ing he vas going to be arrested, and for what, he
did not know. he considered that the Marshal of
the Kingdom was not acting according to law and
his action should be regarded as an outrage The
matter should be recognized and not passed over
lightly; Had the desire of the plaintiff not been
TO settle this matter quickly he would not have
limited the damages to 500, but would have taken
it to a higher Court. All officers throughout the
Kingdom should take this matter to themselves,
that not one be he King or commoner and all
officers from the King down had taken solemn
oaths TO protect those rights can lay finger on
another man without due authority
Judge Bckerton after hearing the Arguments
presented. deferred giving Judgment until the next
day, the ID inst, on which date he rendered the
following decision:
!" 1t has been argued by the counsel for plaintiff
that the act of the defendant was an official act
cannot lind II so. The defendant WAS not acting
as Marshal of the Kingdom or in any official ca
pacity whatever. There had been no legal pro
ceedings or process of law resored to- neither was
he instructed by anyone in authority TO take pos
session of the bulletin board. understand from
the evidence of the defendant that he was told to
have it removed. will therefore treat the case
as that of private citizen, and not as Marshal of
the Hawaiian Islands. II is argued by counsel for
defendant that Mr.. kawainui gave his consent to
the paper being taken by the defendant. As the
plaintiff says, he thought the defendant was acting
as Marshal, with authority, and he therefore gave
up the bulletin, feeling bound to respect the au-
tHOIltN oI tue MarSual. Inc defendant states that
lie made mistake, and that if he had read care
fully the letter that sent to him on the subject
he would probably not have acted as he had done
When he found that the article did not contain
what 1t was said to contain, the matter ought to
have ended. Mr.. Parke acted hastily, and can
not lind upon examination anything TO Justify him
II taking the bulletin board, and must decide as
the law directs me, The defendant must be held
liable in damages. The authorities sustain such
acourse, as also does the Constitution of the coun-
tIS. The damage to Mr.. Kawainus property or
business, if any, is very slight. The damage to
his feelings is different The authorities sustain
large damages in cases where ones feelings are
hnrt. In this case ! cannot find any intention on
the part of defendant to insult the plaintiff 1t
clnnot be denied, that in his capacity as Marshal
II he had seen an obscene writing or picture he
lad right to take it down and destroy it. The
Object of this case is to settle the question: as far
Is this Court Is concerned, whether not the &C
ton OF the defendant was lawful or justifiable
Taking all the circumstances into consideration
ind it was not So l think justice will be done
between these parties by giving judgment for the
I1aintit, therefore give judgment for the plain
TIL for $50 damages and costs S4.40'