The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-07-11

/ described in Sections ], I and ) clearly
/ are all closely related to each other.
They are all Offenses of a reasonable
nature-offenses directed against the
existence of the government-and are
most properly joined in the same act,
as much so as murder and man.
slaughter, and even assault and
| battery, might be properly united
under one act. Further, for aught
that appears, the Offense set forth in
Section may be considered treason
itself as much so as the Offense set
forth in Section L Section merely
provides that those who do certain
things therein specified shall be pun
ished in a certain way, and while from
one part Of the description of the Of
Tense it 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 a
certain punishment, without giving
IN terms any specific name to the
otfense. Chapter of the Penal Code,
entitled "TreasOn," in Section 10
like Section 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 is con-
cerned, is not in conflict with Article
II 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it has been or can be repealed by i'm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 te the affidavit
on the same page of She document,
and that the affidavit sets forth the
ofense 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 aliy 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 IS of the Provisional Government |
provides that in cases Of arrest for the |
OtIense for which the prisoner is ar
rested in the present case, bail should |
not be allowed without the consent of |
the Acknowledgement. The argument |
is that to refuse bail in cases of this
kind is contrary to constitutional |
principles in general, and more par
to Articles and 9 of the Con-
,titution 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
he right of liberty under any consti-
ution. The constitutions of most of
he United States provide that per-
ons shall, before conviction, be adj
nitted to bail in all but certain eX-
epted cases, the exception most
being confined to capital
ases. Stimson, Am, st. Law, Sec
ion l22. The Constitution of 1887
Contains no similar provision. In the
lbsence of such constitutional provis-
on, bail is wholly matter of statu-
DRY regulation. This appears clearly
rom the history of bail in England.
Stephen, His. Or. Law of Eng, 233
{ seq. Norris the granting or refusing
f bail matter to be exercised by ju-
.icial officers only. In England for
enturies "the sheriff was the local
of the crown, and in
,articular he was at the head of all the
Executive part of the administration
f criminal Justice. In that capacity
lie arrested and imprisoned suspected
ersons, and, if he thought proper,
Omitted them to bail" h., 234. 1t
S competent in the absence of consti-
utional provision to the contrary for
he legislature to provide that no bail
hall be allowed at all, and, of course,
hat it shall not be allowed without
he consent of any particular officer.
t is not for us to inquire into the pol
~ or wisdom of such law. That
ests solely with the legislative body.
1t is further urged that since Section
of Act in terms repeats Chapter of
he Penal Code, Act itself which is by
IS title only an amendment of Chapter
of the Penal Code, must also be re-
called. If this were so, the repeating
ection would also be repealed, that
J, it wonld repeal itself (which would
e absurd). And if it were itself of no
feet then it could not repeal Chapter
of the Penal Code (Which would also
e absurd. 1t would be to argue in a
rcle. The argument would be as fol-
)ws: Section 8 repeats Chapter6 6, and
lerefore Act 3, and therefore Section
and therefore not Chapter6, which is
to the first proposition.
was the manifest intention of the
,gislative body to amend the law re-
ting to treason, by substituting Act 8
n Chapter6 of the Penal Code. TO sus-
lin counsels views would be to repeal !
ne entire law relating to treason,
-hich would be as far as possible
ON the manifest intention of
lie legislative, body. Taking the
hole law together, it may well
and, although carelessly drafted.
Where an amendment is intended to 6
Ike the place of preceding act it E
npliedly repeats it. So where the act
amended $50 as to readu in a pre-
ribbed way. EndIich, Interpretation
Efatufae Cacti,pe in 1oa ~