The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1892-06-03

submit that it Is construction which
Hawaiian Court will not make. I
submit that the sons of American
freemen and of British freemen have
not come to this country to sit upon
the Supreme Court and teach Hawai-
ians at this late date in civilization
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long since repealed, like those in tue
time of Henry VIII. and Philip and
Mary, Bloody Mary, aud of Charles
H., which made the speaking of
words alone to be treason.
Mr.. Hartwell argued that even if
it was proved that defendants ex-
pressed a wish or a plan to dcpose
the Queen, such would not in Hawai-
iau law constitute treason. But he
submitted that the evidence did not
show anything of the sort, the most
that could be said of it being that
wishes or intentions were expressed,
that if the objects could not be ac-
complished by constitutional methods
resort TO force would be requisite
and made. He cited English cases
of 1894 in support of the contention
that if they were 70 make out trea-
son 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 indicate legal method or object.
Statutes were passed in England
making ii treason To conspire against
the King. We have no such statutes
and if we had any such statute and
the conspiracy was shown only by
spoken words it would be unconsti-
tutional under the Constitution of
1887.
JUDGE DoLE-I, not conspiracy
itself an overt ac !
Mr.. HARTwELL-It is an illegal
act, the very couspiring, but if
conspiracy shown by words could be
regarded as an overs act, so could in
ference be drawn that the secret
thoughts of person, as well as
those expressed by word of mouth,
and 10y signs or various indications
would be an overt act. Ii is not for
me to say that the times in this coun-
try require that there should be law
like some of the English statutes, by
which seditlous assemblies, formation
of societies at which reasonable and
seditious plans are expressed or con-
cocted shall be high felones. The
necessity of such legislation would
certainly be deplored by all | trust
that there is no occasion for anything
of that sort; on the contrary, it is
my opinion that the allowing of
full and free discussion of the wishes,
hopes and plans of all persons is a
safety valve of itself. The publicity
Of such things is great help. In
regard to any of these meetings that
have been testified to, certainly moth
ing has been said by any witness for
the prosecution which comes up to
the commonl y believed reports pass
ing through the streets here for
months. With a weak Government,
having no force to sustain itself, es-
pecally if it were MT sustained by a
sound and healthy public sentiment,
of course it would be impossible to
repress not only such talk, but the
elimination of such talk in overt
acts.
Counsel referred to the harshness
of laws respecting freedom of dis
cusSion in England and France dur
ing revolutionary times, observing
that such prosecutions have now al
together ceased in England. He
proceeded: Now, / wish to call at
tention to the preamble of the Con-
stitution of 1887. After the recitas
contained in the first and second
clauses, is this expression: "Now,
therefore, |, Kalakaua, King of the
Hawaiian Islands, in my capacity as
sovereign of this Kingdom and AS the
representative of the people hereunto
by them duly authorized and en-
powered, do proclaim and promul-
gate this Constitution. What does
that mean? 1t is the Fundamental
law under which the rights and privi-
lcges and liberties of the people of
the Hawaiian Islands are to-day Sc.
cured, expressed or guaranteed. In
that document or nowhere are those
Liberties expressed or defined, and
that document has for its basis, ac-
cording to its own preamble, that it
is made by the sovereign as the "re-
preventative OF the people by them
duly authorized" Now, if pre-
amble like that to the fundamental
law of this kingdom does not author
ize the people, who as Kalak lua
states in that document authorized
him to make that Constitution, to
discuss, To consider, to plan, 10
scheme, | will say even to plot, whe-
ther they can have any change in it
that they the people from whom 1t
purports to have emanated wish, then
ask where is there any law in the
Hawaiian Islands?
l cannot use stronger language
than l have yentured to use in de-
ploring the dangers, the evils which
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