The Hawaiian gazette., 1893-07-04

FOR treason. Section S relates to the
evidence necessary for conviction.
Section l provides for the punishment
q those who, having knowledge Of the
commission 81 treason, conceal it.
Section > provides for the punishment
Of those who eOnSpire 10 levy war, etc,
against the government. The oitenSeS
described in Sections l, I and ) clearly
Sre sill closely related 70 each other.
They are all ofienSeS Of 3 reasonable
u3tUre-otfsnSeS directed against the
existence Of the goverument-Sna are
most properly joined in the same act
IS much 50 As murder and man.
slaughter, and even assault and
battery, might be properly united
under one act. Further. for Sught
that SppsarS, the offSnSe set forth in
Section ) may be considered treason
itself IS much 50 as the otfenSe set
forth in Section 1. Section 5 merely
provides that those who DO certain
things therein specified shall be pun
iShed in 3 certain way, and while from
one part Of the description Of the Of
Tense il might be called conspiracy,
Vet from the rest Of the description il
IA 49, - wei * NlAAAS& NAC~-NSAA-
No name is given to the otienSe in the
section itself. The offenSe may be
either treason or conspiracy, just rs
certain acts may amount to either
murder or manSlaughter. There is
nothing in the nature OF treason to
eontine it to the acts mentioned in
Section l. Under English statutes y
great many other acts have been made
treason. Ii is = common form Of the
penal statute to provide that il per-
son does certain acts he shall suffer 4
certain punishment. without giving
IN terms any specific name to the
offenSe. Chapter of the Penal Code,
entitled "TreSson,n in Section 10
like Section 4of Act ) Of the Provis-
lonal governmen-provides for the
knowledge of the commission of trea-
son, conceal it. Being of the opinion
that Act 5, so far as Section is con-
cerned, is not in conflict with Article
- OF the Constitution of 1857, 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it has been or can be repealed by i'm
plieStion.
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 pSge Of the document,
and that the affidavit sets forth the
Offanse 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
tieular 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 s. Of the Provisional government
provides that in cases of arrest for the
Otfense for which the prisoner is ar
rested in the present ease, bail should
not be allowed. without the consent OF
the attOTney-geneTal. The argument
is that TO refuse bail in eases of this
kind Is contrary to constitutional
principles in general, and more par
10 articles ! and 9 OF the con-
stitutiOn of 1857, 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-
nitted to bail in all but certain ex-
,epted cases, the exception most
generally being confined to capital
,aseS. StimsOn, Am, st. Law, sec
ion 1222- The constitution of 1857
contains no similar provision. In the
absence OF such constitutional provis-
on, bail is wholly 4 matter of statu-
DRY regulation. This appears clearly |
rom the history OF bail in England. |
Stephen, His. OR. Law Of Eng, 233
It seq. Nor is the granting or refusing
If bail matter to be exercised by ju- |
iicial officers only. In England for /
centuries "the sheriff was the local !
of the crown, and in
larticular he was at the head of all the !
executive part Of the administration
# criminal justice. In that capacity |
le arrested and imprisoned suspected /
and, if he thought proper, |
admitted them to bail" h., 234. 1t 1
: competent in the absence of consti- !
provision to the contrary for
he legislature to provide that no bail /
hall De allowed at all, and, Of course,
hat il shall not be allowed without
he consent Of any particular officer. |
L Is not for Us to inquire into the pol /
cy or wisdom of such a law. That /
-ests solely with the legislative body. /
II is further urged that since Section 4
OF Act in terms repeals ch. of the /
Penal Code, Act itself which is by 4
Is title only an amendment of Oh. s /
4 the Penal Code, must also be re-
,ealed. If this were 50, the repeating 4
ectiOn would also be repealed, that 4
:, it would repeal itself (which would 4
K absurd. And if it were itself Of no I
fleet then il could not repeal ch. s of /
he Penal Code (which would also be /
.bsuril. It would be to argue in a
ircle. The argument would be as /
0IIows: Section repeals Oh. s, and
therefore, Act 3, and therefore section /
, and therefore not eh- s, which Is
contradictory TO the first proposition.
[ was the manifest intention of the
legislative body To amend the law re-
1ting to treason, by substituting Act
for Oh. Of the Penal Code To sus-
ain eounseI's views would be 10 repeal
he entire Law relating to treason,
-Hfch rrnrT1d he a. far AZ rozzihfe J