The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-01-30
AFTERNOON SESSION.

Judge Advocate Kinney continued
his argument. He said in part: Mar
tial law is used at different times in
different senses, each differing from
the others, as follows:
FirstZ'The law martial exercised
by the constable and marshal over
troops in active service"
Second-"The same system In time
of peace or emergency and especially
for punishment for breaches of the
peace"
Third-"For the government of
standing armies under the Mutiny
Acts and the Army Discipline Act
Fourth-"The common law right Of
the crown and its representatives to
repel force by force in case OF rebellion
or insurrection and to act against reb-
els as it might against invaders
It is obvious that trials of case
like this do not come under the first,
third or fourth definitions of martial
law. They come more correctly un-
der the second definition: Now it
may be true, it is true, that this sec
ond exercise Of martial law is declared
by courts to be illegal by the petition
Of right, which expressly declares that
trials in such cases cannot be had.
There is in the Hawaiian Constitu-
ton no such constitutional prohibi-
ton. But in cases of necessity mar
tial law has been declared in several
British colonies, as at the Cape Of
Good Hope, in Ceylon, in Jamaica and
in Demarara. The view of the Eng
lish law is that necessity alone is the
martial law Is rather q status which
exists, whether with or without any
proclamation OF it, and that 1t does
not depend for its validity or legality
upon any enactment Of the law-mak-
ing power.
The United States Constitution also
contains no express power authorizing
the President or even Congress to de-
clare martial law. The declaration of
martial law by the President of the
United States was under what were
called the war powers OF the Constitu.
ton, and being q war power 1t would
of necessity extend no further than
the actual existence and the necessi.
ties of a condition of war required.
All this Is entirely different from
the Constitutional powers OF the Pres
ident of Hawaii. He may not only
suspend the writ of habeas corpus; he
may not only declare martial law;
he may place the whole or any part OF
the Republic aGTldeT martial law, not
ONLY in case of rebellion or insurrec-
ton, but when there is imminent dan
ger cf rebellion or insurrection and
the public safety requires. He may
not only use the military force
to suppress an insurrection and
during its actual continuance;
he may use military force and
martial law for the prevention OF any
recurrence or repetition of an insur-
rection, that Is to say, while there is
ttimminent danger'' of it, and if he
may govern the country under such
circumstances by martial law for any
purpose, he may do so for all pur-
poses. Counsel for the prisoners has
confined his argument to the meaning
of martial law in one only OF its differ
ent aspects, and sought to have it
restricted and limited in Hawaii by
English constitutional requirements
not existing here. AS stated in Hal
leck's Int. Law, Chap. 30, Sec. 20,
"Martial law extends to great varie-
ty of cases not relating to the disci-
pline of the army, such as plots
against the sovereign and intelligence
to the enemy"
The Hawaiian law, unlike English
and American law, authorizes the
establishment and continuance OF
martial law in time of peace as well
as war. It may be also that the
prisoner has, by his crime, made him
self liable before the civil courts of the
country If they were now performing
their functions in cases of this nature.
There Is no Inconsistency in the same
conduct being punishable as well by
municipal as by martial law, or In the
same act, being criminal. as well by
municipal as by martial law. Today
each and every provision OF the Con.
stitution of Hawaii which conflicts
with martial law is superseded by the
martial law, which is supreme today.
The mere suspension of the writ of
habeas corpus might, perhaps, imply
that the civil processes would subse-
Quently apply In any case not strictly
a war case but the Hawaiian Consti-
tuition goes further than to suspend
the writ of habeas corpus and makes
martial law, and nothing but martial
law, now supreme upon the island of
Oahu today.
Mr.. Kinney closed by stating that 1t
was due only to q rule of law that
Bowler was not charged with treason.
He knew about the landing OF arms;
he was one of the men who were to
seize the telephone Office. He was as
guilty of levying war as those who
took the field. "Public tranquility