The Independent. [volume] (Honolulu, H.I.) 1895-1905, 1895-08-20
Continued from Isl Page)

him by the Constitution, having de.
cided that the objects for which
Martial Law was proclaimed re-
quired that cases OF Misprision OF
Treason be tried by Military Com.
mission, the Civil Courts have no
jurisdiction to try or consider any
such case unless thereunto especially
authorized by the President.
In the case at bar there is no
authority conferred upon the Civil
Courts to try or consider such case.
The jurisdiction conferred upon
the Military Commission to try such
case is exclusive and not subject to
appeal or to review by the Civil
Courts.
If it is held that under the term
"Ordinary Business" used in the pro-
clamation of Martial Law, jurisdic-
ton was conferred upon the Civil
Court to try cases of Misprison or
Treason, such as the one at bar,
there is nothing in the order making
such jurisdiction exclusive.
The President is vested with dis
erection while Martial Law is in force
to designate any other tribunal in
which such offense shall be tried.
The making of one order or desig-
mating one tribunal does not exhaust
the Executive Discretion of the
President in this regard. He may
in terms expressly confer concurrent
jurisdiction upon another tribunal;
or, he may expressly, in terms, re-
woke the jurisdiction already gran
ted; or, he may revoke it by impli-
cation, by instituting Military
Commission directing it to try such
case, A Military Commission 80
constituted and directed by the
President to try given case has
exclusive Jurisdiction of such case.
In the case at bar the President
having exercised his discretion, ms
tituted Military Commission;
directed it to try such case, and
such Military Commission having,
in pursuance of such order, exer-
cised such jurisdiction and delivered
judgment in such case, such judg-
ment must stand and cannot be
reviewed by this Court.
The Petitioners. contention that
"this Court has the power to go be.
hind the record and inquire into and
consider whether or not the trial of
this Petitioner by the Military Com
mission was essential to public safe.
ty" is directly destructive of the
principles laid down concerning the
exclusiveness OF Executive Disore-
ton aud heretofore adopted by this
Court.
The Petitioners contention that
his offense "was committed before
Martial Law was proclaimed, and
was therefor beyond the jurisdiction
OF the Commission" is incorrect, in
TACT; and,
If correct in fact, it is bad in law.
If the offense is construed not to
have been continuing one, and to
have been committed and COM
pleted beyond the possibility of con-
tinuance before Martial Law was
proclaimed, the trial OF Petitioner
by the Military Commission is not
open to objection ON the ground
that its creation and action is re-
prospective, nor on any other grounds
involving an inquiry by this Court
into the facts.
The sole question which this
Court can inquire into is the juris-
dicti OF the Commission.
If the Commission had any iuris-
dlction whatever this Court has
none.
: If it is held that the otfense was
com mitted solely before Martial Law
was proclaimed, it is then submitted
that the jurisdiction OF the Com
mission is not confined to acts CON-
mitted since Martial Law was pro-
claimed.
Petitioner claims that there is a
distinction between the scope of
Martial Law exercised in a con-
quered territory and that exercised
within territory OF the Govern
ment proclaiming Martial Law, as
in Instruction.
1t is submitted that although some
distinction may be drawn between
the two conditions, there is no diff
ference in the principle governing
than