The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-06-29

levy war against the government, OIL
adhere to its enemies, are guilty OF
treason. Section provides the penalty
for treason. Section 3 relates to the
evidence necessary for conviction.
Section provides for the punishment
of those who, having knowledge of the
commission of treason, conceal it.
Section provides for the punishment
of those who conspire to levy war, ETC.,
against the government. The Offenses
described in Sections /, 4 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 D may be considered treason
itself as much so as the offense set
forth in Section 1. Section merely
provides that those who do certain
things therein specified shall be pun
ished in 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 Il common form of the
oil tot fA 10 10 hot
son does certain acts he shall suffer q
certain punishment, without giving
IN terms any specific name to the
offense. Chapter of the Penal Code,
entitled "Treason," in Section 10
like Section 4 of Act of the Provis-
lonal governnen-provides 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
"a of the Constitution of 1857, 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it has been or can be repealed by i'm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
say that the offense is described in the
warrant by reference to the affidavit
on the same page of the document;
and that the affidavit sets forth the
offense 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 ally 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 So of the Provisional government
provides that in cases of arrest for the
offense for which the prisoner is ar
rested in the present case, bail should
not be allowed without the consent of
the encouragement. The argument
is that to refuse bail in cases of this
kind is contrary to constitutional
principles in general, and more par
ticularly to articles l and of the con-
stitution 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
the right of liberty under any consti-
tuition. The constitutions of most of
the United States provide that per-
sons shall, before conviction, be adj
mitted to bail in all but certain ex-
copied cases, the exception most
generally being confined to capital
cases. Stimson, AM, st. Law, sec
ton 122. The constitution of 1887
contains no similar provision. In the
absence of such constitutional provis-
ion, bail is wholly matter of statu-
tory regulation. This appears clearly
from the history of bail in England.
/ Stephen, His. Or. Law of Eng, 233
ct seq. Nor is the granting or refusing
of bail a matter to be exercised by ju-
dicial officers only. In England for
centuries "the sheriff was the local
representative of the crown, and in
particular he was at the head of all the
executive part of the administration
of criminal justice. In that capacity
he arrested and imprisoned suspected
persons, and, if he thought proper,
admitted them to bail" h., 234. 1t
is competent in the absence of consti-
tutional provision to the contrary for
the legislature to provide that no bail
shall be allowed at all, and, of course,
that it shall not be allowed without
the consent of any particular officer.
1t is not for us to inquire into the pol
icy or wisdom of such law. That
rests solely with the legislative body.
1t is further urged that since Section
8 of Act 3 in terms repeats CHI. 6 of the
Penal Code, Act itself which is by
it's title only an amendment of CHI.
of the Penal Code, must also be re-
pealed. If this were so, the repeating
section would also be repealed, that
is, it would repeal itself (which would
be absurd). And if it were itself of no
effect then it could not repeal CHI. of
the Penal Code (Which would also be
absurd). 1t would be to argue in n
circle. The argument would be as
follows: Section repeats Oh. 6, and
therefore Act 3, and therefore section
8, and therefore not ch. 6, which is
contradictory to the first proposition
1t was the manifest intention of the
legislative body to amend the law re-
1ating to treason, by substituting Act
8 for ch. of the Penal Code. To sus-
tain counsers views would be to repeal
the entire law relating to treason,
which would be as far as possible
from the manifest intention of
the legislative body. Taking the
whole law together, it may we'll
stand, although carelessly drafted.
Where an amendment is intended to
take the place of n preceding act it
implicitly repeats it. So where the act
is amended $50 as to read" in n pre-
scribed way. Endlich, Interpretation
of statutes, sections 195, 1876. If an
amendment can repeal the preceding
act by implication, and yet itself
stand, certainly it can also stand where
the preceding act is expressly re-
pealed.
"There is the strongest kind of pre-
sumtion against the existence of that
species of absurdity in the intention
of the legislature which would con-
sist in a design to defeat its own OBJ
ject. Yet it not infrequently occurs
that one portion or provision of stat
ute, if literally or even naturally con.