The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1898-03-05
ABOUT ARREST WARRANTS
ATTORNEY A. S. HUMPHREYS
MAKES \ STRONG ARGUMENT.
An Important Question Which VIII
Come Up on Monday Before the
House of Representatives

The following letter by Attorney A.
S. Humphreys upon resolution offer
ed by Representative Robertson, has
been addressed to the editor of The
Star in his capacity as Representative
of the Fourth District, and is here Civ
en- in full:
Honolulu, March /, 1898.
\. r. Atkinson, Representative Fourth
District.
Sir: Referring to the resolution Of
fered by Representative Robertson I'm
the House on the Bird instant in re-
gard to the practice which has grown
up i'm the Attorney Generals Depart
ment requiring the Marshal or the
prosecuting officer to endorse their
approval on all warrants of arrest for
otfenses alleged to have been commit
ted against the laws of the Republic
of Hawaii as a prerequisite to the Is
suance of such warrants by the Dis
trict Magistrates, | would call your at
tention to Section 6O6 of Ballou's Pc
nal Laws, 1897, which provides as fol-
lows: Upon complaint made to any
District Magistrate of the commits
sion of any otfense within the iuris-
diction of such Magistrate to hear and
determine. he shall examine complain
ant on oath, shall reduce substance of
the complaint to writing and cause the
same to be subscribed by the com
plainant, and if it shall appear that
such offense has been committed the
said Magistrate shall issue his war
rant reciting such complaint and re-
IN
whom it is directed forthwith to ar
rest accused and bring him before
such Magistrate to be dealt with ac-
cording to law" From the most cas-
ual perusal of this statute it will be
seen that it is the plain duty of the
Magistrate TO hear the complaining
witness: the law says "he shall exam
inc" him. He shall not only hear the
complaining witness. but, ''if it shall
appear" ii. e., from the evidence of
such witness), that an offense has
been committed. he shall issue his
warrant and direct it to the Marshal,
requiring the Marshal toarreSt the uc-
cused and bring him before the Mag
istrate to be dealt with according TO
law. The issuance of warrant in
any case is a judicial function which
neither the trainers of our Constitu-
tion nor our Legislators ever contem-
plated should be exercised by the EN-
ecutive, and the right to supervise the
issuance of warrants claimed by the
Attorney Generals Department, is not
only contrary to the spirit and genius
of our Institutions. but is also clear
llv beyond the confines of. at least,
the spirit, if not the letter. of our
written law which | have above quot
ed. | may, in general terms, say that
all of our laws in regard to the issu-
ance of process of arrest and in mat
ters of criminal procedure generaIly,
have been derived by MS from the Eng
: lish common law, which to obtain,
the people of England, in the earlier
history of that country, fought for
inch by inch. Blackstone wrote his
Commentaries on the Laws of Eng
land 1913 years ago. He says (Book I.
Page 1870 that to make Imprisonment
lawful it must either be by process
from the courts of judicature or by
warrant from some legal officer hav-
ing authority to commit TO prison, and
further O}ooll 4, Page 29O) that war
, rant may he granted in extraordinary
, cases by the PriVy Council or Secre-
tary of State, but ordinarily by JUS
u
Peace being officers analogous to ouI
: District Magistrates) This they may
: do in cases where they have a iurIs-
: diction over the oifense in order to
compel the person accused to appear
!, before them, for it would be absurd tc
give them power to examine an OF
fender unless they also had power
to compel him to attend and submit
: to such examination. The eXtraordi.
, nary cases referred to by Blackstone
in which warrants were granted by
the Privy Council of State is explained
by him (Book 4, Note, Page 291) as
a follows: "a practice had obtained ii
: the Secretary's Office ever since the
q restoration, grounded on some clauses
: in the acts for regulating the press,
of issuing general warrants to TAX,
up (without naming any person il
particularly the authors, printers ol
e publishers of such obscene or seditiou
{ libels as were particularly specified
:. in the warrant . When those Acts ex
+ pired in 1894 the same practice was in
/ advertly continued in every reign ant
{ in every administration. except tn,
: four last years of Queen Anne, dowI
,. to the year 1863, when such a warran
{ being issued to apprehend the print
ers and publishers of a certain sedi
n tious libel, its validity was disputed
T. and the warrant was adiudged by tn,
q whole court of Kings Bench to b,
II void in the case of Money VS.. Leach
4 We thus see that from time imme
Z mortal the Executive has been deniet
the power to act in such eases. Unde
o our laws the Marshal or other prose
g cutting officer has no authority to sigl
: warrant or to compel any person I
= appear before him, and i'm the Ian
n guage of Blackstone at would be ali
! surd to give them the power to exam
v inc an offender unless they had ais
the power to compel him to atten
and submit to such examination.
is the duty of the Marshal 10 serve tn
;. warrant when directed to him by tn
It District Magistrate and to permit hir
y to say that warrant in any particu