The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1900-10-10

sssrssrs world recognize TIE psweT Of tn
state nes OILY To do What the Tnit-'
S<stes in respect 20 Thonsp-ssuS crsns'
roasd not Al any tine. have done By beg
station but 10 take from the 2srESe,f I
substantial right belonging to hiE wheE
ihe ofszsse xas committed Thssfafssss
" Utah I70 T. s PIP. :-O-i'-
Law When Trial Is Had.
-lt follows that all thu prorissoas .,
tai constitution IN Fesps-S 20 Psr-oaa
and property rights. inciGdins the rishi
10 trial by jury in criminal prosecutions
s--cane at once. when the eession wa
eornpieted. part Of the supreme law d
rhe land The character Of an oEsuss
and the measure of its punishment would
X determined by the Law IN force when
and where the act WIS committed, the
avs of that character remain IN forcs
after the c.-ssion until changed hut the
manner of the trial musr depend on ths
Iaw IL force when she trial i hssl- even
though the establishment aud 0rsaniza-
ion of courts must be awaited before
he trial can BE had TX parre Ortiz
200 Fed p. 962l.
Does this construction Of the law
iaean. as has been 80 earnestly cOntend-
20 unpublished and that there was 10 pro
lection to lie and property Gu tiie Ha-
gaiian Islands between the 9Th day OF
July 1888 the date of signing the joint
resolution, and 1.-THE 11th day OF June.
1900. the date the Organic Act. organic
ing the Territory OF Hawaii. went into
effect: Certainly not During all OF
This period there was organized govern
,nent here there were officers and
courts, legally constituted. continued IN
Office and existence by the order OF Presi-
dent Mckinley. under the authority Civ
On in the joint resolution. There was
the great body of the municipal l1ws OF
the laie republic mot inconsistent with
the resolution nor contrary TO the con-
stitution of the United States contin-
ued in force until congress should other
wise direct. There was provision tor a
rial jury of twelve and that part Of the
statute authorizing nine jurors TO return
a verdict could have been controlled by a
simple direction or instruction Of the
trial court. that there must be unanl-
nous verdict TO convict, and those addi-
tiouaI safeguards TO the life. liberty and
prosperity of the citizen prescribed by the
constitution of the United States were
here in full force and vigor.
Had Power to Call Grand Jury.
Among the municipal laws continued
in force was section 1l09 of the Civil
Laws, which provide that the common
law of England, as ascertained by the
English and the American decisions, is
declared to be the common law Of the
Hawaiian Islands. except when changed
by decision. usage or law. The circuit
court of the First circuit was court
of record and of common law jurisdic-
ton. and in August, 1898, had the UNI
doubted power to issue an open venire
and summons and empanel a grand jury
in the manner provided by the rules of
the common law.
As Justice Cooley said: They as
sumo that the existing principles of the
common law are ample for the protection
OF individual rights, when once incor-
porated in the fundamental law and thus
secured against violation" (Weimer
vs. Banbury, Mich, Pa. In the United
tice Marshall. speaking of the authority
of courts to issue an open venire, in
the absence of any statute authorizing it,
said: 1T has been justly observed that
no act of congress directs grand juries
or defines their powers. By what au-
thority. then, are they summoned, and
whence do they derive their powers? :
The answer is that the laws of the Unit
ed States have erected courts which are
vested with criminal jurisdiction. This
jurisdiction they are bound to exercise,
and it can only be exercised through the
fundamentally of grand juries. They
are. therefore. given by necessary and
indisputable implication. But how far
is this implication necessary and fndis-
putable? The answer is obvious Its
necessity is co-extensive with the juris-
diction to which it is essential Il
Brock. 1881.
In C,awson VS.. United States, ia e..
s. 4S6. in approving the action of the
supreme court of Utah, whose opinion
sustained the action of a district court
Of the territory in issuing an open venire
for jurors and which based its judgment
not on any statute authorizing it. but
the fact that such power was inherent
in the court was not forbidden by any
statute In force in Utah. said: We
concur in this view. SO far as the resort
TO the open yenire after the exhaustion
of the two hundred names is concerned"
The following authorities also support
this proposition: l Chitty. Grim. Law.
SIC: = Hale. 2, c.. 265: Mackay vs..
People. . Cal 10; Wilburn VS.. State, II
Ark. 19S-a01: Goodwin vs.. Z. s.. 81
Pac. 49,.