The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-02-18
THE POWERS OF THE PRO-
VISIONAL GOVERNMENT
QUESTIONED
Argument in the Circuit Court on the
Habeas Corpus Case.

case of John O.. NJ. Sheldon, held in
custody under a warrant signed by
President Dole, came up in the Circuit
Court before Judge Frear, at IL O'Clock
yesterday morning. Sheldon had
meanwhile been liberated on bail, but
was present with his counsel, Messrs.
c. w. Ashford, Chas. Creighton, A.
Rosa, A. p. Peterson and J. L. Kaulu-
kou.
The warrant under which Sheldon
is held, merely commands the Mar
shall to arrest Sheldon and bring him
before the Executive and Advisory
Councils forthwith, there ITO show
cause why he should not be punished
for contempt of said Councils" The
warrant is signed by "S. B. Dole, Pres
ident and Chairman of the Executive
and Advisory Councils of the Provis-
ional Government of the Hawaiian
Islands,"
Mr.. Ashford, arguing for the writ,
contended that the warrant was illegal
and a nudity, for the following rea-
sons, among others: That Mr.. Dole
possesses no judicial functions which
authorize him to sign warrant for
any mans arrest; that the warrant
issued as a purely arbitrary act on Mr..
Dole's part, without charge of any
offense being therein made against
Sheldon; and that the warrant does
not purport to be the action of, or
sanctioned by the Councils.
Several articles of the Constitution
were cited in support of these conten-
tions, including those guaranteeing
the liberty of the citizen, and forbid
ding the issue of warrants except upon
probable cause, supported by oath or
affirmation, ETC., etc, none of which
acquisitions had been observed in the
case at Bar.
The terms of the Proclamation of
January II, by which the monarchy
was abolished and the Provisional
Government established, were COM
mented upon, and counsel took the
ground that the remnant of the Consti-
tuition left standing by that Poclama-
ton, together with the Proclamation
itself, now form the fundamental law
or charter of our existing Govern
ment. In short, he claimed that the
entire Constitution of 1887, except in
so far as it conflicts with the changed
conditions of government, as set forth
in the Proclamation, is as much in
force to-day as before the Proclama-
ton was issued, and that the terms of
the Proclamation are likewise bind
ing upon the Government.
The latter document expressly con-
fers all legislative power upon the
Advisory Council. Mr.. Dole is not a
member of the Advisory Council, and
is therefore debarred from taking any
part in legislation Except as to the
approval of laws), and cannot be a
member of the legislative body. If
not such member, how can he be
and Advisory Councils? If not such
chairman, how could he legally COM
mand the arrest of a citizen as such?
Especial stress was laid upon the
lack of authority in Mr.. Dole to COM
mand an arrest of citizen, at least
without formal action by the Coun-
cips requesting the issue of such pro-
cess. While denying that any action
of the Councils could legally justify
such arrest, counsel contended that it
was doubly apparent that the spon-
taneous act of the President could not
authorize the restraint of citizen. If
Sheldon could be so arrested, and his
arrest be upheld by the courts, there
is no guaranty of liberty, or even life,
left to any one in the country. If, by
the bare command of Mr.. Dole, even
though he describe himself as "Presi.
dent and Chairman of the Executive
and Advisory Council" any citizen
can be deprived of liberty, particular
ly without the formality of a criminal
charge being made against him, then
the liberty of the citizen is far more
precarious under the Provisional Gov
eminent than under the monarchy
whose manifold vices were the excuse
for the present Governments exist
ence.
Mr.. Ashford claimed that the Con-
stitutional power of the Legislature
to punish for contempt committed
elsewhere than in it's presence had
not been inherited by the legislative
body of the Provisional Government,
and that it could not under the terms
of the Proclamation legislate upon
the matter of contempt other than
such as being committed in its pres
ence, tended to obstruct its working
1t was difficult, if not impossible, to
say under what constitutional restric-
tions the present Government is con-
Quoting affairs. Appearances would
indicate that it recognizes no limita-
tions, Constitutional or otherwise.
upon the exercise of the will of the
Councils. If there be no Constitution
nor any restriction upon the action of
the Provisional Government, then
the guarantees for the protection of
life, liberty and property are at an
end. If there be such restrictions,
they must be found in the Constitu-
ton of 1887, as left by the Prociama-
ton, and in the latter document. If
there be Constitution now in force,
then the action of Mr.. Dole in order
ing the arrest, and of the Marshal in
arresting Sheldon, were in violation
of that Constitution, and void, and
the respondent should be discharged.
After the noon recess,
MIR. Hatch, for the Provisional Gov
eminent, replied to Mr.. Ashford's
argument. He dwelt upon the cir
cCmstances under which the Pro-
vIsional Government was called into
being, and remarked upon the adj
mission of opposite counsel that
the Provisional Government is
the only government in the
country to-day. There is evil
IDENTIFY a legislative body in the Gov
eminent, and that body is composed
posed of the two Councils in Joint ses-
sion. Being a Legislature, they have
the power to punish for contempt,
though he did not claim that they
succeeded to the powers of the Ha-
IL, i