The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1895-01-30
RIGHTS OF THE COURT.
GROUNDS ON WHICH CLAIM or NO
JURISDICTION WAS SETTLED,
A Clear and Powerful Showing of the
Full Authority of tile
Commission.


manns challenge of the jurisdiction OF
the Board. This is of extreme import.
ance as showing the strict adherence,
throughout to the laws of the land.
Martial law is used at different timei
in different senses, each differing from
the others, as follows:
First-"The law martial exercised by
] the constable and marshal over troops
in active service"
Second-"The same system in time ol
peace or emergency and especially fol
breaches of the peace"
Third-"For the government of stand
ing armies under the Mutiny Acts and
the Army Discipline Act"
Fourth 1.-The common law right OF
the crown and its representatives to re-
pei force by force in case of rebellion
or instruction and to act against rebels
as it might against invaders"
1t is obvious that trials of a case like
this do not come under the rst third OIL
fourth definitions of martial law. They
come more correctly under the second
definition.
The position of the prisoners is that
nsisprison Of treason is purely statu-
tory offense not triable by Mill 1rv
Commission on the grounds on which
persons engaged in actual rebellion by
bearing arms against the Republic may
be, and that therefore this Comuis-inn
has no jurisdiction for trial of this case.
But there is no principle or rule ~ ila-
waiian law statutory or constitutional
to sustain that position. AS far as HE
guilt is concerned, one who Is foun1
with rifle in his hand in open rebel 2
against the State, is no less guilty than
the one who melted him to take the
field. the misprison of treason is only
another form of completely with it. It
means an actual and guilty knowledge
of reasonable plans, and that failure
to make them known to a proper
authority, indicates bey ond shadow
of doubt a guilty completely.
| Unlike the Constitution of the United
States, the Constitution of the Republic
of Haw ii expressly empowers the Presi-
dent TO proclaim martial law. 1.-THE
President may in case of rebellion or
imminent danger of rebellion when the
public safety requires it suspend the
privilege of the writ OF habeas corpus or
place the whole or any part of lhe Re
public under martial law" Article
XXXI of the Constitution. Every man.
whether he has sworn allegiance to the
Republic of Hawaii or is merely "A resi-
dent here is bound to know that pro-
vision of the Constitution. 1t is not for
this Commission, it is not for counsel
for the prison ers or for the Judge Advo.
cate to question either the constitutions
atty or the propriety of the martial law
which has been declared and still eX-
lists.
The military force OF England may be
al L., g.. a
suppression of riots and instructions,
whether under the Riot Acts or Articles
of War or Annual Mutiny Act or Army
Discipline Acts, or in the absence of
statutory power. But martial law, eX-
cept when exercised over troops or AS
provided for in such acts as above men
toned, in which sense it is wholly exer.
cised, is unauthorized under the law
of England, and perhaps by the law
which prevails in the United States.
The Petition of Right in Charles |, pro-
hibits martial law or commissions to
try persons by martial law, which the
petition declares to be "wholly and indi-
rectly contrary tn the laws and statutes
of the realm" In ether words, martha
law III England, while it may be resort
ed to, to suppress rebellion, may not be
used for Furnishing rebellion. 1t is true
that there are certain English Acts
: which take a different position; for in
stance, in the 80 of George nj, an Act
of the Irish Parliament was passed re-
ferrlng to the suppression Of u rebt llion
in Ireland and referring to an order
made by Lord Camd, n in Privy Coun
Gil authorizing ''all general officers
commanding His Majesty's forces tc
punish all persons acting, ordering OF
IN any ,ody assisting in the said rebellio'
according to martial idaO, either by
death or otherwise as to them should
seem expedient, recites that "the
peace of the Kingdom has been so far
, restored as to permit the course Of the
common law partially to. take place.
The act expressly declares that "nothinp
in this act shall be constituted to abTidgt
or diminish the undoubted prerogative
of his Majesty for the public safety tc
resort to martial law against his open
enemies or traitors" But this act
AS well as another act made il
the year 1888, known as the In
surrection Act, undoubtedly go nc
) further than To declare the right of the
Crown of England to exercise militar,
power only to the extent Of suppressins
rebellion, restoring peace and per
hitting the common law TO take effect
: Even the Annual Mutiny Act contain
:. the declaration that mo man can b,
foriudged of life or limb or suhjecte,
to any punishment within this realm b,
e martial law in time Of peace Their
q can be little doubt that by English law
az soon as the actual couflict is ended
it is the duty of the military authoritie
e to hand over their prisoners TO the civil
o powers for trial, but that after aetna
: resistance is suppressed, and the ordin
airy course of justice can be reopened
punishment by military law is no
authorized. Even the Habes Corpu
\ right can be suspended in England onl
a by Act Of Parliament.
Such is not the law of Hawaii which ex
: pressly empowers the President to plac
I the whole or any part OF the Republic
under martial law. During the prevail
/ ence OF martial law no prisoners held b
/, the military forces can be tried by civ
courts, for that would bring those court
into direct conflict with the military au
i thority, which is now supreme. Til
United States Act OF March, 1868, au
=. thorizing trials by Military Commission
u in its second section requires that list
II of all prisoners held by the United State
e under the authority of the President
J. otherwise than az prisoners OF wal
. should DE furnished 10 the Judges Oh vi
II Circuit and District courts, il the Fec
J. eral authority is unopposed, and tina
l. in cases where the Grand Jury i'll attenC
. ance upon any of these Courts shout
:, terminate its session without proceed
IL ing by indictment or otherwise again'
J. any prisoner named in the list the Judg
= of the Court should forthwith make a
;s order that such prisoner desiring di
% charge should be brought before him {
I, the Court to be discharged on enterin
is into recognizance if required to kee
the peace, and for good behavior, or
70 appear if the Court might direct to
'e further dealt with according to Law
a and in the Third Section that If sue
lists were not furnished within tweni
days after the arrests, any citizen aft
10 the termination of the session of q
ss grandjury without Indictment or presen
w ment might Obtain the Judges order