The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-04-04
FREAR SUSTAINED.
SHELDON RETURNED TO THE
MARSHAL'S CARE.
-
Full Text of the Decision BY
the Court in Bauco.
SHELDON RETURNED TO THE

Dole and the consequent vacancy
on the bench, the banco work of
the Supreme Court has been some
what retarded. But the Judges are
now hard at work and will soon
catch up with all the matters pend
ing before them. Friday after
noon they rendered a decision in
the matter of J. G. VI. Sheldon, ap-
plication for a writ of Habeas Cor
pus, which came before them on
appeal from decision by Judge
Frear. The particulars of the case,
with arguments by counsel, were
fully reported in the ADVERTISER at
the time. Judge Frear rendered a
decision sustaining the Govern
ment, and the full Court have en-
dorsed him. The following is the
full text of the decision:
oPINIoSoF THE COURT, PER JUDD, CD.
This case comes to us on appeal
from decision of Circuit Judge Frear,
filed February oath last. Since that
date Judge Frear has been appointed
as a Justice of this Court.
A writ of Habeas Corpus was issued
out of the Circuit Court upon the petit
ton of G. C. Kenyon, on behalf of J.
G. NJ. Sheldon. 1t was directed to the
Marshal, w G. Ashley, who made re-
turn as follows:
"W. G. Ashley, Marshal of these
Islands, makes return of said writ as
follows: That he holds the body of
said John G. NJ. Sheldon by virtue of
a warrant of arrest issued by the Hon.
Sanford B. Dole, President and Chair
man of the Executive and Advisory
Councils of tn Provisional Govern
ment of the Hawaiian Islands, and by
the order of said Councils, on a charge
of being guilty of contempt of said
Councils, a copy of which is made a
part hereof. Wherefore he prays said
writ of Habeas Corpus may be dis
missed and that said Sheldon who is
here produced in Court may be re-
manded to the custody of the under
signed. "W. G. ASHLEY,
Honolulu, Marshal.
February 18th, 1898.
"(Copy.)
Provisional Government of the Ha-
waiian Islands.
Warrant of Arrest.
TO the Marshal of the Hawaiian ISL
ands, or his deputy, greeting:
fYou are commanded to arrest J. @.
VI. Sheldon, editor of the newspaper
called the Hawaii Holomua, of Homo
lulu, and have him before the EXecu-
tive and Advisory Councils of the
Provisional Government of the Ha-
waiian Islands, at the Council Cham
Der, in said Honolulu, forthwith; to
show cause why he should not be
punished for contempt of the said
Councils.
"Given under my hand this 18th
day of February, A. d. 1898.
TSig.1 "SANFoRD B. DOLE,
President and Chairman of
the Executive and Advi-
sorry Councils of the Provi
sional Government of the
Hawaiian Islands.
Executed the within warrant of
arrest of the person of ]. G. NJ. Shell
don, named herein, the 18th day of
February, a. d. 1898.
[Sig. ''W. G. ASHLEY,
Marshal.
"a true copy.
ATTEST.
"W. G. ASHLEY, Marshall
There were no further pleadings in
he case and no evidence taken. 1t
vas urged on behalf of the petitioner,
;. w. Ashford, counsel, that Sheldon
hould be discharged because the war
ant set forth in the return is invalid
nd insufficient. 1t is invalid, says
ounsel, because the Executive and |
ydvisory Councils of the Provisional |
government had no power to auth |
Erize the issuance of the warrant, and |
is insufficient because, though sign !
by the Chairman, it does not APP |
ear that the said Councils had auth |
riZed its issuance, and because itdoes |
Dt specify the grounds of arrest, that |
the nature and particulars of the |
legged contempt.
From an inspection of the warrant |
lis evident that it purports to be |
iued not by a court of judicial char |
aer, but by body exercising legis- |
live functions. But il is urged by |
uitioner's counsel that legislative |
dies under written constitutions |
I've no implied authority to punish |
gerally for contempt, and the Provi- |
snail Government is one of limited |
ahority, having limited itself to the |
Gstitution of 1887 and the Proclama- |
tn of the 18th January, 1898, and so |
IL Executive and Advisory Councils |
hi no legislative authority to pass
] Act 10, which confers by its terms
ahority upon the Councils to punish |
focontempt. We answer that the |
DIVISIONAL Government having taken |
psession of all Government property |
al according to its Proclamation hav-
inestablished itself as the Govern |
mt of the Hawaiian Islands, abro- |
gang the monarchy, it is the de !
fac government. 1t is the Govern
mt and the only government now
eXing in the Hawaiian Islands. |
ThCourts of this country are not at
lihty to discuss the question of the
les existence of the Government of
with they form part, and the laws
1Ef hich they are called upon to adj
mister.
e the Executive and Advisory
Cocils sitting together a legislative
boz? On this point we adopt the
arsnent and conclusion of Judge
FIR in the decision appealed from,