The Hawaiian gazette., 1893-02-21
THE POWERS OF THE PRO.
VTSIONAL GOVERNMENT
QUESTIONED
Argument in the circuit Court on Che
Habeas Corpus Case.

The argument on the habeas corpu
case of John G.. NJ. Sheldon, held il
custody under a warrant signed b,
President Dole, came up in the Cireui
Court before Judge Frear, at II o'clocl
Friday morning. Sheldon ha,
meanwhile been liberated ON bail, bu
was present with his counsel, Messrs
c. W. Ashford, Chas. Creighton, A
Rosa, A. P. Peterson and ]. L. Kaulu
kou.
The warrant under which Sheldon
is held, merely commands the Mar
shall to arrest Sheldon and bring hin
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 as. 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 purely arbitrary act on Mr..
Dole's part, without a 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-
Council. Mr. Dole Is not q
member of the Advisory Council, and
is therefore debarred from taking any
part in legislation except as to the
of laws, and cannot be a
of the legislative body. If
not such member, how can he be
chairman Of the combined Executive
and Advisory Councils? If not such
how could he legally COM
mand the arrest of citizen as such?
Especial stress was laid upon the
lack of authority in Mr.. Dole to COM
mand an arrest of a citizen, at least
without formal action by the Coun.
cirs 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- |
.aneous 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
s no guaranty OF liberty, or even life,
eft to any one in the country. If, by |
he bare command of Mr.. Dole, even
hough he describe himself as 'Presi-
lent and Chairman of the Executive
md Advisory Council" any citizen
an be deprived of liberty, particular
V without the formality of criminal
harge being made against him, then
he liberty Of the citizen is far more
,recarious under the Provisional Gov
rnment than under the monarchy |
whose manifold vices were the excuse
or the present Governments exist
nee.
Mr.. Ashford claimed that the Con-
titutional power Of the Legislature
o punish for contempt committed
lsewhere than in its presence had
ot been inherited by the legislative
ody of the Provisional Government,
nd that it could not under the terms
( the Proclamation legislate upon
he matter of contempt other than
UGH as being committed in its pres
nee, tended to Obstruct its working.
t was difficult, if not impossible, to
ay under what constitutional restric-
ions the present Government is con-
ucting affairs. Appearances would
Indicate that il recognizes no limita-
ons, Constitutional or otherwise,
pom the exercise of the will of the
ouncils. II there be no Constitution
or any restriction upon the action of
ne Provisional Government, then
ne guarantees for the protection of {
fe, liberty and property are at an Z
nd. II there be such restrictions,
ley must be found in the COnstitu-
on Of 1857, as left by the ProcIama-
on, and in the latter document. II z
lere be Constitution now in force, !
len the action Of Mr.. Dole in order
~ the arrest, and o. the Marshal in :
resting Sheldon, we're in violation
that Constitution, and void, and q
.e respondent should be discharged. :