The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-07-08
THE CONTEMPT CASE.

duty to be fearless in asserting what |
he deems to be law, whether his
view happens to accord with popu-
lar or the judicial view for the time
or not. 1t is equally his duty to
demand that legal rights be assert
ed in the way and according to the
forms provided by law.
The recent contempt case may
serve as study, in more senses
than as question of law; but l
propose to consider some of its legal
aspects. The propriety or impro-
priety OF the Attorney-General's
action in mol. pros'ing the case in
which this question arose has MOTH
Ing to do in fact with his legal right
to do so; but most persons will not
consider the right itself apart from
the question whether 1t ought TO
have been exercised in this particu-
lar instance.
The Attorney Generals assertion
of such right and declining to 20 on
with Crown business while the right
was undecided, is not of itself con-
tempt of Court, as l think, and
therefore imagine that there was
something in the manner and tone
in which the right was asserted,
which led the judge to regard it as
contempt.
The Crown need not bring up any
cases for trial, and the Attorney
General is the only one to decide
when he is ready 10 prosecute or not
to prosecute. Of course he acts on
his Official responsibility. If he fails
TO bring on cases Or get them post
poned, accused persons will be
acquitted, and he would have to
bear the blame.
But if there was case of con-
tempt, Notwithstanding the AttOr-
Generals disclaimer of inten-
ton TO show disrespect, | think it
is to be regretted that the legality
of the warrant of imprisonment fol
that cause was not tested in Court,
bv habeas corpus or otherwise. The
Court has power to fine and i'm
prison for contempt, but is not the
exclusive judge of what is or is no.
contempt, otherwise justice nigh
become "roaring" farce. Blu
looking at this as case of actua
contempt, the question of the powe
of Court to imprison the Attorney
General for such cause seems TO mi
so vital to orderly continuance of 1
constitutional government that l an
sorry that its decision by the full
Court was not reached. The war
rant of arrest did not specify tina
the Imprisonment should be in
stone cell, with bolted iron door, n
Oahu Jail, where a prisoner is IL
common with thieves and murderer
liable to have the usual prison garl
and fare, nor did it specify that th
Attorney-G General should be other
wise treated than as any common ma
lefactor. Butthe fact that Il warran
may authorize such treatment o
the head of an executive department
for such cause, and not for Grim
inal charge, is in my opinion rea
son for looking upon it as q cours
which would throw into confuslo
the judicial and executive powers G
the Government. What, it is asked
can Judge do, if the head of an e,
ecutive department were to interruI
his court with some outrageous COZ
duct? i reply that the dignity an
order Of the court and respect for i,
lawful order must always be pr
served; but that, in order to do 81
should not adopt imprisonment
: MoleoGer, Governnentis not NEAR
to be Entrusted to villains or blacl
guards, either in high executive {
Judicial positions, and suppositiol
of, what is to be done in extreu
Il cases, for which only the remedy {
impeachment or vote of want of col
: tidence is provided by the Constit'
ton, are useless.
If, however, a clearly illegal Z
unconstitutional order of impriso
ment be made by judge, it is
question of public as well as of pl
vate interest, whether such ord
4 shall be obeyed or resisted. {
this question there can be no dou
of ones duty, which is, to obey t
order if it is made in due form of la
and TO give all Prescriptions of ia
in favor of its legality until its illeg
: ity is declared judicially, provid
there is any means of obtaining
judicial hearing on the question |
: fore the supposed wrong is irredee
ct ably done, case which can We
- seldom arise. 49, tE ~
~ If an order or warrant of impl
u onment has been lawfully execute
lg by legal restraint, although unacco
&c panied by indignities of prison CT
IA garb and fare, and if afterwards
!, a merely oral order of the judge
- the marshal, to re-arrest the ga
person for the same cause, and q
" fine him in prison cell for anotl
es term { put an extreme and yet p
IL sible CASEY; all | can say is, tina
IN should want to test the legality
q. such oral order as quickly as pos
=. BILE.
" Fortunately this is a law-abid