The Hawaiian gazette., 1888-11-20

without a regular trial according %
the course and usage Of the common
law. would not be the law Of The
land A Dew. n. c. 10, Bow.
5l2 "Such Legislative acts as pro
Tess in themselves directly to punish
| persons, or to deprive the citizen Of
his property, without trial before the
Judicial tribunals, and decision up.
on the matter of right as determined
by the laws under which it vested
according to the course, mode and
usage of the common law as derived
from our forefathers are not effectu-
ally laws Of the land for these pUr
poses" 1 Dew. n. G. 10, Coke Va
Harrison
/ The prisoners were detained by
/ persons who had no authority to ID
so, they were not charged with an
Ofense and held to trial therefor, NOT
We're they imprisoned as punishment
under conviction of an offense after
trial by court having Jurisdiction
thereof; they We're therefore entitled
to them discharge. zone who de-
talns another by written authority
can return only that authority; and
If it be insufficient, we believe the
general practice and law now to be
that the prisoner is, as to that special
commitment, entitled to his dis
charge" Church on Ha6eas Cor
P1ts 1872 IF it should appear
manifest ON an examination of those
proceedings by the Court that the
Court of Chancery the committing
Court has exceeded its authority.
and that MIR. Yates Is illegally impris-
oned, l would ask, whence is the
necessity of any further investiga-l
ton into what has been called the
merits of the present case.p Yates
vs.. People. 6 Johns. 269I. "A return
that a prisoner is detained in ems
tody being charged upon oath with
being a deseTter from the ROYAL
Lelnster Regiment, held insufficient;
1t ought to have appeared that he
was committed by some person hav-
ing authority to commit" king vs..
Earl Mountmorris, Reid ct al. l.
Ridg. AGO. Church on Habeas Cor
pus 200 For if the commitment
be against law, as being made by
one who had no jurisdiction of the
cause the Court ara
to discharge him" Ibid 20s. 328
34f An arrest made by an officer
beyond the limits of his authority Is
VOID" Ibid 348, Lawson VS.. Buzines-
3 Harr: | Del AS, Impey's Shift
552, Hale 2. C. 5S4, Skin. 676 oil q
II Go. 40, Wilmot's Opinions IO6.
hurd on Habeas Corpus 331l. Even
the majority of the Court concede
that the return made by the respond
ent Is IN itself not sufficient to ms
tlfy the detention Of the prisoners.
whence then, to quote again from
Yates VS.. People the necessity
OF any further investigation into the
meritsi
L find, however, under English and
American authorities, that the Court
IN ha5eas corpus proceedings where
the detention Is found to be illegal.
Will sometimes, where it is probable
from the evidence that an offense
has been committed, recOmmit the
prisoner to the proper court for trial
Church 367, 372, 3T3. Rex VS.. Marks
3 East l57, People ex rel Walters vs..
Ionnor, 10 Abb. Pr. n. S. 43O Elk
Parte Rleord IL New. PSI am in
;llned to think that in the present
;ase the Court had the power to COM
nit the prisoners TO the Police Court
or trial for unlawfully attempting
o land under Section ii Of the Sta.
ute; 1t Is clear to me that such a
'ourse was the only alternative from
discharge.
The counsel for the prisoners
made the further point, that as the
,ermits held by them were vised by
he Hawaiian Consuls at Hongkon9
nd San Francisco, the Hawaiian
government was thereby bound to
ecognIze such permits as sufficient
admit the prisoners. The pass
orts or permits were issued under
be Foreign Office Regulations of
lareh p, 1884 These regulations
uthorlzed the Foreign Office to
sue passports ito any Chinese resi-
ent IN this Kingdom who may de-
re to visit any foreign country and
sturn therefrom." No provision
as made in the regulations for the
&c OF these passports by Hawaiian
onsuls or anyone. The reoula-
OBS OF September 1, 1885, first in
odueed the requirement that Chi
sse passports should be vised. and
len requirement applied only to
ie passports issued under such new
guiatiOns. From these elreurn-
ances, it Is clear that the Consuls
yiseing these passports, acted
lthont authority from the Hawai-
a Government, and that their
ton was wholly immateriaI as
fecting the validity Of the pass
,rts. l am, therefore, Of the opin-
q that If this Court had the right
entertain this question, which /
'ubt. they could only hold that the
aWalIan Government was not In
yHlse bound or affected by the
ton Of its COnsuls in the premises.
October y. 1883.
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