The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-06-03

lTtaSOils WHICH we're ueC GICu ny I-bSLlSb
Courts in revolutionary times were deem
ed TO be requisite for the protection OF
the Government. The old statute OF the
25th of Edward ILL.,, which was the fir-t
statute which undertook to define by
Legislative authority what treason should
be, was, except at certain periods OF En-
glish history, the basis of their law OF
treason That statute made three acts
and no others to be treason. First, "form-
ing and displaying by any overt act an
intention to kill the King" second,
Chewing war against the King" third,
"adhering to the Kings enemies, giving
them aid and comfort" In that statute
there was nothing said of attempts to
depose the King, nothing said of con-
spiracies 10 depo. e the King or TO levy
war, nothing said of attempts to levy
war. but the English Courts nevertheless
in various important trials declared that
such things were treasons under the act
of Edward III. 1t was a construction OF
the statute which Sir James Stephens,
one of the finest law writer's in the world,
one OF the most honored judges OF Eng
land, in his history of Criminal Law,
saws is, can unnatural construction, a
construction which the words them
selves by their natural force would not
permit" construction which the judges
made, because they believed that the
statute of itself was insufficient to protect
the public peace. | submit that 1t is
construction which a Hawaiian Court
will not make. | submit that the sons
of American freemen and of British free
men have not come to this country to sit
upon the Supreme Court and teach
Hawaiians at this late date in civiliza-
ton the odious doctrine of constructive
treason by the use of words; that to do
so would be to declare as law in this
country certain English statutes long
since repealed, like those in the time Of
Henry VIII. and Phillip and Mary,
Bloody Mary, and of Charles H., which
made the speaking of words alone. to be
treason. / should like to refer to some
of those statutes which are mentioned
in this history of the criminal law OF
England. Counsel refer TO treason Acts
of Rich. H., Henry VIII, Chas. H., Phi.
and Mary, Eliz. Geo. Ill, and cite those
which made spoken or written words, or
planning, matchmaking or imagining, to
be treason.)
In Coke, the expression overt act is
translated in a factum apertum, an
open act. Now, whatever this Court has
made out of the word overt, as meaning
open, manifest, definite, as opposed to
something vague and indeterminate,
there can be no doubt about the word
factum, that it means deed done. And
that deed done is not accomplished by
words spoken | submit to the common
sense of this honorable Court.
Now, if there were evidence tending to
show that the defendants or any of them
expressed wish or plan to depose the
Queen, in any event, a definite, settled
plan, then there might be basis for the
argument in support of this charge, I'M
der the old English judicial constructions
or statutes, but not under the Hawaiian
statutes and Constitution, for no such
results can constitutionally or legally be
drawn from such expressions in this
country. But submit to the Court that
the evidence shows nothing of the sort,
the most that can be said of it is that
wishes or intentions were expressed, that
it was said that if the objects could not
be accomplished by constitutional
methods, that is through the Legislature,
a resort to force would be requisite and
would be made. Going further, if the
opinion was expressed that the objects
could not be accomplished by constitu-
tional methods, but that force would be
requisite in order to accomplish them,
what is that? That is not form
ing and expressing definite
plan to use force in any event,
it is implying as far as words can imply,
it seems to me, an intention to use such
force only if no other means would
accomplish that object. think that is
not strained Interpretation of any
language used by the witnesses for the
prosecution. Certainly if we were to
make out treason by the use of any
language at all, the language should not
be strained in its Interpretation by the
Court to indicate reasonable object if
it can consistently be interpreted to indl-
cate legal method or object. Counsel
refer to the English treason trials of
Horne Tooke and others in 1794.]
The law appears to have remained in
that condition until 18th Victoria, 184S,
that was the period of the third French
Revolution and great political disturb
ances on the continent, in Vienna, Ber-
lin and elsewhere, when in the opinion
of the English Government it became
essential to enact statute going further
than the statute OF Goth George ILL.,,
which was confirmed and made promi-
nent by Act 81 of his reign, in regard
| to planning, scheming, imagining or de-
vising either to kill the Queen or depose
her. The Act to which refer, l1th
| Wet. makes it treason to conspire, to
form a conspiracy for any of these pur-
poses which have just mentioned. This
statute gave authority to the previous
| judicial constructions OF the act of Ed
ward III and also the act of George III.
by making a conspiracy to levy war in
| its natural sense, or conspiracy to de-
pose, to be treason in itself We have
no such statutes and if we had any
such statute and the conspiracy
was shown only by spoken words
it would be unconstitutional under
the Constitution of 1887. dole, j.:
Is not conspiracy itself an overt act p 1t
is an illegal act, the very conspiring, but
| if a conspiracy shown by words could be
regarded as an overt act, so could infer
ence be drawn that the secret thoughts
of person, as we'll as those expressed
by word of mouth, and by signs or vari-
Gus indications would be an overt act.
1t is not for me to say that the times in
this country require that there should be
law like some of the English statutes,
by which seditious assemblies, formation
of societies at which reasonable and Sc
ditious plans are expressed or concocted
shall be high felonies. The necessity of
such legislation would certainly be de-
| plored by all. l trust that there is no
occasion for anything of that sort; on the
contrary, it is my opinion that the allow
| ing of full and free discussion of the
| wishes. hopes and plans of all persons is