The Hawaiian gazette., 1893-02-28
In Chambers, before Frear, ].
DECISION.

In Chambers, before freaT, d.
DECISION.
a writ of habeas corpus was issued
in this case upon the petition of @. G.
Kenyon on behalf of ]. g. NJ. Shell
don. 1t was directed to Marshal w.
G. Ashley, who made return as fol-
lows:
"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
warrant of arrest issued by the Hon.
Sanford B. Dole, President and Chair
man of the Executive and Advisory
Councils of the 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, copy OF which Is made
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, Marshal.
Honolulu, February l6, 1888"
(Copy.)
Provisional Government of the Ha-
waiian Islands.
Warrant of Arrest.
"To the Marshal of the Hawaiian
Islands, or his Deputy, Greeting:
"You are commanded to arrest J.
G. NJ. Sheldon, editor of the news
paper called the Hawaii Holomua, of
Honolulu, and have him before the
Executive and Advisory Councils of
the Provisional Government of the
Hawaiian Islands, at the council
Chamber, in said Honolulu, forth
with, 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.
(Signed) SANFORD B. DOLE,
President and Chairman of the
Executive and Advisory
Councils of the Provisional
Government of the Hawai-
ian Islands.
"Executed the within warrant of
arrest on the person of J. G. NJ. Shell
don named herein this 18th day of
February, A. ID. 1898.
(Signed) w. G. ASHLEY, Marshal.
"a true copy. Attest:
"W. O. ASHLEY, Marshal"
The only facts before the Court are
those set forth in the return.
1t was argued in behalf of the Mar
shall that this Court had no jurisdic-
ton in the matter, in view of the pro-
visions of Section 80 of the Habeas
Corpus Act.
That Act (Sections l and p provides
that the writ of habeas corpus is de-
mandable of right in all but certain
cases therein mentioned. Section 80
provides that ia these cases in which
the writ ais not demandable of
right,n the Supreme Court, or any
justice thereof, may, at their discre-
ton, issue the writ, except in the
case of persons committed by
the Legislative Assembly, in the
manner and for the causes provided
by the constitution"
Now, without raising the question
whether Article 81 of the Constitu-
ton, which provides for the punish
ment of contempts by the legislature
is still in force, it is clear that Section
80 of the Habeas Corpus Act does not
cover the case at bar. In its express
terms, it relates only to cases (of
which this is not onel in which the
writ is "not demandable of right"
and the exception to such cases re-
lates only to "persens committed"
that is, after commitment. There
has as yet been no commitment in
this case. Even if this exception of
"persons committed" were an excep-
ton to cases in which the writ is de-
mandable of right, yet Section 80
would not apply here, because it re-
lates only to the Supreme Court, or
any justice thereof" 1t may be added
that, in the absence of constitutional
or statutory provisions to the con-
trary, the Courts have power in
habeas corpus proceedings to decide
whether the legislature acted within
its jurisdiction in any case of arrest or
commitment for contempt, except
perhaps in cases of contempt against
the legislature when acting in its
judicial capacity. Kilbourn VS..
Thompson, 103 q. s. 16S; In re Falvey
Z Wis. 635; EmeTy's Case, 107 Mass.
I72; Stockdale V. Hansard, Ad. d
Ell, /; Case of the Sheriff of Middlesex,
ii Ad. & Ell. 273.
It was argued in behalf of the petit
toner that the warrant set forth in
the return is invalid because u the
Executive and Advisory Councils of
the Provisional Government had no
power to authorize the issuance of
such warrant, (2) they did not in fact
authorize their Chairman to issue it,
and (3l the warrant does not specify
the grounds of arrest.
Whether the Executive and Advl-
sorry Councils had power to authorize