The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-07-06

under one act. Further, for aught
that appears, the Offeuse set forth in
Section D may be considered treason
itself as much so as the offense set
forth in Section /. Section 3 merely
provides that those who do certain
things therein specified shall be pun
ished in certain way, and while from
one part OF the description of the Of
| Tense il might be called conspiracy,
| yet from the rest of the description it
might just as well be called treason.
No name is given to the offense in the
| Section itself. The offense may be
either treason or conspiracy, just as
| certain acts may amount to either
murder or manslaughter. There is
| nothing in the nature of treason to
| confine it TO the acts mentioned in
Section /. Under English statutes a
great many other acts have been made
| treason. 1t is a common form OF
| penal statute to provide that If per-
| son does certain acts he shall suffer
! certain punishment, without giving
in terms any specific name to the
| offense. Chapter of the Penal Code,
| entitled Treason" in Section 10
like Section 4 of Act of the Provis-
lOnal ACKNOWLEDGEMENTS for the
| punishment of persons who, having
knowledge of the commission of trea-
son, conceal it. Being of the opinion
that Act 3, so far as Section 5 is con-
cerned, is not in conflict with Article
| n of the Constitution of 1887, it will
be unnecessary for us to say whether
| that Article is still In force, or whether
it has been or can be repealed by i'm
| plication.
AS to the point that the arrest was
| illegal because the warrant does not
fully describe the offense of which the
| accused is charged, it is sufficient TO
| say that the offense is described In the
| warrant by reference to the affidavit
| on the same page Of the document,
| and that the affidavit sets forth the
offense fully and substantially in the
words of the statute. The affidavit is
part of the warrant. The description
of the offense need not be in any par
ticular part of the warrant.
But counsel further contends that if
the prisoner cannot be discharged he
ought at least to be admitted to bail.
Act SO of the Provisional Government
provides that in cases of arrest for the
offense for which the prisoner is ar
rested in the present case, bail should
not be allowed without the consent of
the Attorney General. The argument
is that to refuse bail in cases of this
kind is contrary to constitutional
principles in general, and more par
ticularly to Articles l and 9 of the Con-
stitution of 1887, relating to liberty.
We are not aware that the right to
| bail has ever been held to be secured
by the general provisions relating to
the right of liberty under any cOnsti
tuition. The constitutions of most of
the United States provide that per-
sons shall, before conviction, be ad-
mitted to bail in all but certain eX-
cepted cases, the exception most
generally being confined to capital
cases. Stimson, Am, st. Law, Sec
ton 122. The Constitution of 1887
contains no similar provision; In the
absence of such constitutional prOvis-
ion, bail is wholly a matter of statu-
tory regulation. This appears clearly
from the history of bail in England.
l Stephen, His. Or. Law of Eng, 233
ct seq. Norris the granting or refusing
of bail matter to be exercised by ju-
dicial officers only. In England for
centuries ''the sheriff was the local
representative of the crown, and in
particular he was at the head of all the
executive part of the administration
of criminal justice. In that capacity
he arrested and imprisoned suspected
persons, and, if he thought proper,
admitted them to bail" h., 234. 1t
is competent in the absence of consti-
tutional provision to the contrary for
the legislature to provide that no bail |
shall be allowed at all, and, of course,
that it shall not be allowed without |
the consent of any particular officer. |
1t is not for us to inquire into the pol
icy or wisdom of such law. That |
rests solely with the legislative body. |
1t is further urged that since Section |
8 of act in terms repeats Chapter of |
the Penal Code, Act itself which is by |
its title only an amendment of Chapter !
6 of the Penal Code, must also be re- !
pealed. If this were so, the repeating /
Section would also be repealed, that !
is, it would repeal itself (which would |
be absurd). And if it were itself of no |
effect then it could not repeal Chapter |
of the Penal Code (Which would also |
be absurd). 1t would be to argue in !
circle. The argument would be as fol- |
lows: Section 9 repeats Chapter 6, and |
therefore Act 8, and therefore Section |
8, and therefore not Chapter 6, which is |
contradictory to the first proposition. |
1t was the manifest intention of the !
legislative body to amend the law re-
lating to treason, by substituting Act 3 |
for Chapter of the Penal Code. To sus- |
tain counseps views would be to repeal !
the entire law relating to treason, |
which would be as far as possible |
from the manifest intention of |
the legislative body. Taking the |
whole law together, it may we'll !
stand, although carelessly drafted. |
Where an amendment is intended to |
take the place of preceding act it |
implicitly repeats it. So where the act /
is amended $50 as to read" in a pre- |
scribed way. Endlich, Interpretation |
of Statutes, Sections 195, 1876. If an |
amendment can repeal the preceding |
act by implication, and yet itself /
stand, certainly ii can also stand where |
the preceding act is expressly re-
pealed.
"There is the strongest kind of pre-
sumption against the existence of that |
species of absurdity in the intention |
of the legislature which would con-
sist in design to defeat its own OBJ
ject. Yet it not infrequently occurs
that one portion or provision of stat
ute, if literally or even naturally con-
strued, would practically nullify the
whole, or some material portion of the
remainder of the act, with the effect |
of defeating its obvious purpose. In
cases of this description it is a settled
rule of construction, flowing from the
obvious absurdity of any other, that
such an Interpretation shall if possible
be placed upon the statute, ut na9is
Uateat guam pereat.
4 in bn OF Of !