The Hawaiian gazette., 1893-07-04

=
ESw. Nowhere IN the ser wxS con-
Srfri-S mentioned Act 5 therefore
toeS nor amend il. The SmsndStOry
ser j. null Snd Void il we Sre under
the ecrSs tuition " 1S>- - he eiSirue6.
be pointed cus the sane defect in
Oths- sections amended which were
not specified III the title The scs
VS. evidently drawn in hSSts sud by
s rISC not l4wye-. Chapter y Of
the penal code relStsS 70 e0nSpira-
cisS, Sui this c-sSe tSllS under that
eh2p-sr s. s separate charge. The
prisoner should therefore De dis
Charged Section OF Act was evil
IDENTIFY unnecessary Sni illegal.
Tle warrant does not describe any
atferSe and therefore the prisoner
should he discharged. He hSd been
arrested under 3 warrant q arrest
Snd not under s complaint u SrreSC
- required BY the lSw reads the war
rant. To hold uiSn he claimed,
the warrant must be complete in
itself which this one was not.
In closing he submitted thai the
keynote Of his position WIS IS TO
whether We were living under : con-
Stituri0u2l government or deSpot-
ism. He claimed that we were now
under the constitution o. 1877 Snd
rhz5 the Provisional government
could only take It's plSce Is fSr as
matters Of business were concerned,
and thS5 only pending the establish
ment Of closer relations with the
United States of America There
fore s Izw cannot De passed 70 put the
discretion o. issuing bail in one msn'S
hands. 10 matte< who he wSS. Mr..
Creighton SgSiu referred 70 the al
lsSsd fset rhSt the encouragement
hSd more power than the Gar Of
Russia Or any other potentSte on
earth ever hSd. He submitted thSt
Act vas invSlid Snd the warrant
detective He claimed that Act IS
wzs SlSo invalid Snd therefore the
prisoner should oe admitted 70 bail.
Judge HartweII, for the govern
msnt. said il was Of no importance TO
use strong language in the cSSe st bSr
where the fsctS Snd the fSctS alone
were 70 be considered In effect, the
counsel claimed thst the Provisional
government has no legislative power;
that its functions sire merely to keep
the peace, pending annexation,
where it did not come into
conflict with the mOnSThy. Sueu
WIS the bald statement, Snd 1t WIS Al
absurd one
When his it before been said that
the points raised by counsel excluded
the legislative function OF the present
government He wished TO empha-
size the fact that in the history Of
constitutions not one could De found
that limited constitutional principles
The executive and sdvisoEy councils
Of the Provisional government hsd
otherwise ordered, Is their acts
proved. especially in the matter Of
treason What could the prisoners st
the bar complain OF, when the penalty
for treason had been mSde lighter IN
der the aueud3toCy act mentioned by
coCuSeI2 The old law did not even
allow Of bail, now 1t WIS discretionary.
The language Of the learned counsel
which referred 70 the Gar OF Russia
was clearly not applicable 10 the
present cases or the government. The
statements made were not facts In
this case the legislative function has
been properly and legally established
and the new government h4s the
sworn support OF the attorneys OF this
court It i the government De factO
and it stands in Law zII that can be
said 20 the contrary notwithstanding
A. 10 the subject OF bail II was As
old - English law. To show that dis
crstfOnzry bail hiss been 5 rule in
English history he cited and read the
COMMON law Of England
The suggestion that there was
politics IN the present case had
nothing whatever 10 do with the
form and functions Of the present
government under which we live
and these cases are brought. The
assertion that politics had anything 10
DO with the matter WIS Preposterous
the very name was : MISSIONER in
the present case.
As TO Judge Cooley's article in the
Forum magazine read by the learned
there Was little 10 say. He
hzd admired Judge Cooley'slaw works
zud held him IN high esteem IS an
exponent Of constitutional law where
be Vas posted on the facts which
formed the premise OF his argument
but in this case he denied Judge Cool I
sTs pfemfse-his facts relating TO the
constitutional question IN Hawaii were
not souud-were not true. Others than
Judge Cooley had read constitutional
-zE1 had made Il : study. and differed
rom Judge Cooley. He especially
disagreed with the learned judge on /
the power Of the United States 70 an
lex zs did many others Judge
COoley's views were unfortunately
not sustained BY any other iurist in
The United States They had not
been sustained in the thorough dis
.UssiOu Of the question which had
ateIy taken place in the United
States senate But whether Judge
Cooley was right or wrong, has moth /
M whatever TO do with the legal and !
constitutional functions Of. the Ha-
Sziizu government. The learned I
UfgE was evidently not well inform /
d On the conditions upon which the I
present question turns.
The statement Of counsel that the |
Provisional goveEumenr was not car |
ned On IN the interests Of the common /
rood, had no application Whatever, /
hat be could see 70 the legal phases |
involved in the case at bar
In : sense every charge 81 treason l
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