The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-06-28
It. B. WALKER REMANDED
UNTIL FURTHER ORDER
OF SUPREME COURT.
Argument OF Council on the writ OF
Rabeas Corpus.

The writ Of habeas corpus ISSUED
yesterday morning on behalf of Mr.
T. B. Walker, as a test case, was
made returDable before the supreme
bench at 1:30 P. NJ. There were but s
dozen or so present beside attorney:
and newspaper men when Chief JUS
tice Judd and Associate Justices Bick.
erton and Frear took their seats al
twenty-five minutes to O'Clock.
After short delay Judge Hartwell
appeared on behalf of the attorney
general and announced he was ready
TO proceed with the case.
Mr.. T. 3. Walker was brought into
court by Marshal Hitchcock. He
was neatly dressed in a gray business
suit and sauntered easily to the seat
the marshal pointed out near Mr..
Creighton's table.
Judge Hartwell read the 'papers in
the case'' and Mr.. Creighton arose
and said:
May it please your honors: In con-
Sidering this case there are several
points to be discussed. The first and
perhaps most important of these is
whether or not we are acting and
living under q constitution now in
force in this country? If so which is
1.-THE constitution of 1857 or the
proclamation made by the Provis-
ionaI government on January II,
1898 ? The Provisional government
professed TO exist as government de-
facto, holding in force all law not con-
f1icting with the proclamation. Read
the proclamation.1 The Provisional
government was organized to secure
annexation to the United states of
America, and he wished to lay special
stress upon the point that the only
power the present government has Is
to preserve the peace and quiet of the is
lands under the existing laws and that
conflicting. The government could
not commit any act lawfully which
confiicted with any constitutional
principle. The rights of personal lib
erty and the privilege of bail fell
under this head.
Chief Justice Judd asked if the Con-
stitution of 1887 granted bail in cases
OF this class.
Mr.. Creighton said no, but set up
the plea that the personal liberty of
the citizens could not be interfered
with He claimed the liberty of
. beech was not abridg ed by the Con-
sI,uJlOu.
Mr.. Hartwell said that as the repre-
s.ntative of the attOrney-general, he
wished to know if Mr.. Creighton was
right in alleging that personal lib-rty
and free speech had been abridged
without offering any proof.
Continuing Mr.. Creighton said the
old Constitution was still in
laa of
Judge Cooley on constitution law
from an article in the Forum. The
Provisional government had taken on
G artain powers which it could not now
q xceed. This would form the chief
basis of his argument. He quoted
article l of the constitution of 1887, re-
lating to the right of liberty, safety
and happiness. This, he ella med,
covered the present case and made it
bailable. This was certainly so until
act 80 was passed by the Provisional
cretion placed with the attorney |
general on the question of bail, under |
act So, was unjust and absurd. He |
quoted, further, articles and IL of the |
and claimed that they |
bore upon the case at bar. These pro |
vide that all persons, without dis |
tinction, shall be entitled to certain |
rights; the right of bail is one of these |
and should be granted his client. He |
held that act SO applies to political
charges. This was deplorable. The |
attorney general had admitted this |
much. Allowing him such discretion |
in the matter of bail was, putting it |
very mildly, extremely unfortunate. |
1t would be different if the court de-
cided upon bailatle offenses of this |
nature. But the attorney-genera's |
deciding was altogether different.
He was member of q
political cabinet, and was there to
Judge his political enemies, when it
came to a question OF bail in their
case. Such course was contrary to
the spirit and usage of the American
and English constitutions. 1t should |
not be sanctioned here. 1t places the
question of bail in the hands of the
attorney general, and takes it out of
the power of the court TO decide.
He wished to call attention to act |
;. section ), under which he under
stood the prisoners were held. He
also read portions of act 50, which he
Stained pretended to. amend the law
If treason of, 1892. This amendatory
act was in peculiar position. He
claimed the amendment could not
cover offenses which were not in eX-
silence at the time the original act was
passed.
Another point he had expected TO
lite was the Herring case, but as this
lad Just been decided by this court, he
merely mentioned it in passing.
The fundamental point was, under
which constitution are we living?
This point must be decided first. If
we are not under constitution then
the Provisional government can do
and pass any act.
He argued that Act contained
subject matter which was not in
,luded under The title as provided by
aw. Nowhere in the act was con-
spring mentioned. Act 8 therefore
hoes not amend it. The amendatory
act is null and void If we are under
The consti tuition of 1887 as he claimed.
He pointed out the same defect in
other sections amended which were
not specified in the title. The act
was evidently drawn in haste and by
l man not lawyer. Chapter % of
he penal code relates to conspira-
lies, and this case falls under that
chapter as separate charge. The
prisoner should therefore be dis
charged. Section of Act was evil
IDENTIFY unnecessary and illegal.
The warrant does not describe any