The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1900-10-23
CFrom Saturdays Daily)

Judge A. S. Hartwell, one of the two
or three men who stand at the head of
the legal profession in these Islands,
lie on the Constitutional questions rails
ed by the Marshall and Edwards cases
and did so as follows:
AZ have considerable doubt about the
jurisdiction of the Federal court under
the provisions of the Organic Act to set
aside the final judgment of the Terri
torial Supreme Court. l have express
ed that doubt in n brief argument /
was permitted to present to Judge Es-
tee before whom that question is now
pending.
1.-The Territorial courts are as much
bound by the Constitution as is the
Federal court. AS pointed out by
United States District Attorney Baird
in his able argument before Judge Es-
tee in this matter, the ordinary Terri
torial courts try cases exclusively with
in the jurisdiction of the U. S. District
Court as we'll as Territorial cases
proper.
Last winter / met Mr.. Wade who
had been Chief Justice of the Supreme
sixteen years and who described to me
the manner in which that court work
ed. First, the U. S. Grand and Petit
Juries We're drawn and the u. S. cases
for the consideration of the jury We're
disposed of. The court then sat with
the same jurors drawn as Territorial
Jurors to dispose of the Territorial
cases. This was a practice with which
oil mo no of
in the Territories were familiar.
A CHECK ON COURTS.
ITO have a Federal court authorized
to supersede judgments of the Terri
torial court, is wholesome check upon
the judgments of a weak court. But
think it is safer to assume that both
courts are made up of competent
judges and that it would not be likely
that Congress intended to invest the
one-judge court with power to set aside
the action of a three-judge court.
However, this is a question of no little
complication and l cannot say that l
envy a Judge the work of solving that
problem.
when did the Constitution come to
Hawaii?
There is no doubt that the U. S.
Constitution has been in force since
June IA last when the Organic Act took
effect which declared, in Section 5,
that the Constitution shall have the
same force and effect in the said Ter
ritory as elsewhere in the United
States
1.-THE Marshall case raises the ques-
ton whether the constitution had the
same force and effect prior to June IA
A..
approval of the Annexation resolution.
The decision of this question depends
upon the following considerations:
EXAMPLE OF ALASKA.
81. Did the mere fact of annexation
apart from anything contained in the
resolution of annexation cause the
Constitution of the United States to go
into effect in Hawaii?
80. Does the Annexation resolution
contain anything which caused the
Constitution to become operative in
Hawaii?
1.-The mere fact of anneXng territory,
has never in the history of the United
States been treated as emitting the in
habtants of the annexed territory to
all the rights secured by the constitu-
ton. In many cases it would have been
impossible to extend at once some con-
stitutional rights to the people of the
annexed territory. For instance, when
Alaska was annexed by purchase from
Russia, Grand and Petit Juries and
unanimous verdicts would have been
absurd to talk of among the ignorant
Indians of Alaska.
Even the enlightened people of the
Territory of Louisiana when it was
purchased by the United States from
France were not considered fitted, or at
any rate We're not allowed to exercise
all the rights secured by Magma Charta
and asserted in the u S. constitution |
The same is undoubtedly true to-
day in the Philippines and Porto Rico. /
Yet, if the Constitution is in force in
any Territory or other property be- |
longing to the United States from the :
moment it becomes the property of the |
United States, that cannot result from
the condition of the people for they
have nothing to say on the subject.
ENACTMENTS NECESSARY.
at must be, if at all, only by virtue
of something expressed or necessarily
implied in the Constitution, and there
is nothing in the Constitution on the
subject unless it be in the preamble in
which it Is stated that the people of
the United States do ordain and estab-
llsh this Constitution for the United
States of America meaning by that
expression not only the states of the
United States, and the union of the
states, but all property wherever stu
ate belonging to the United States"
Judge Hartwell was asked: IF there
is nothing in the Constitution making
Ii operative in annexed Territory with
out special enactment by Congress,
then does the Newlands resolution ex-
pressly or by necessary implication ex-
tend the Constitution to Hawail?"
at is claimed" said he in reply, that
this is the effect of the expression, the
municipal legislation of the Hawaiian