The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1900-10-10
MlRsIIu's SENTENCE
AFFIRMED on IPDL
Supreme Court Holds
He Was Legally
Convicted.
JUSTICE GllBRlIn nlssEMTs
LATTER INSISTS THAT coNsTI-
TUITION TRAVELS WITH
THE FLAG.
Majority Decision Seems TO Rely
Upon Presidents Of Hawaiian
Supreme Court and Daniel
Webster's Speech

Hawaii and filed yesterday, Judge Gal
| braith dissenting. VIM III. Marshall. who
| was tried on : charge OF criminal htel
| and convicted BY a jury OF nine was
| legally convicted and he must serve y
! term OF SIX months in the Oahu peniten
| tiary-
| In This decision in the Marshall case
the supreme court shows q startling in
consistency by reversing itself in the Ed
wards case According TO Justice Frear.
| who wrote the opinion of the court. J..
A. MagooH sitting in place of Justi-e
! Perry, agreeing, the constitution OF tie
United States was not extended over
Hawaii when these islands were taken
| over by the United States representa-
tiyes on August 18th, lSYS.
| The decision is Of some length, the
chief points made in it, as written By
Justice Frear. being:
| Section go. 10 500 OF the Penal Laws
/ are not void for effectiveness or un-
| constitutional because they divide the
| offense OF making, as also that OF pub
! fishing libel. into two degrees without
| distinguishing between them except by
| the amount of the penalty and leave 1t
| TO the court or jury authorized TO de-
| eide on the facts to determine the de-
/ gree.
1 "Verdicts by majority of the twelve
! jurors We're lawfully received after the
! annexation OF these islands TO the
| United States but before the establish
| ment Of Territorial government by
act of Congress.
When the record shows plea of not
| guilty in the district court, il is not
| necessary that the defendant should
plead again on his appeal in the Cir
| cult court or that he should plead TO
charge as amended in matter of form
| where he has pleaded TO the original
charge"
1t will be observed that the first and
third paragraphs refer solely to Ha-
waiian law and practice, and that the
second paragraph touches the most
salient point in the appeal-that OF
whether or no Constitution follows the
flag" Chief Justice Frear and j. 4.
MagOon in place of Justice Perry say
that in the period between annexation
and the establishment of the Terrific
rial government the Constitution did
not apply TO Hawaii and that Hawaiian
regulations in regard TO juries alone
applied in this country. On the point
the court says:
THE verdict was returned May is,
1900. during the transition period be-
tween the annexation of these islands
\
effect of the act of Congress establish
ing a Territorial government for these
islands. We hold that verdicts by nine
or more out of twelve jurors, as per-
mitted by Hawaiian law before such
annexation could be lawfully returned
after annexation and before the esta-
blishment of such Territorial govern
ment, basing our conclusion upon the
reasoning in Peacock & Company VS..
Republic. u Haw., %; Republic VS.. Ed
wards. ID, So: and the dissenting OPT
MON in exparte Edwards. filed az the
same time herewith"
Galbraith's Dissenting Opinion.
Justice Galhraith filed a dissenting
opinion in which he holds that the con-
stitution of the United States was ex-
tended over the Hawaiian Islands at the
time the flag was raised over them on
August 18th by representatives of the
United States government. In his dis
senting opinion. which is not long JUS
tice Galbraith says:
''The opinion of the court reiter-
ates the novel doctrine of al
transition period" referring to the
period of time between the signing of
the Joint Resolution annexing the Ha-
waiian Islands to the United States.
July Eth. 1898. and the taking effect of
the Organic Act. June IA. 1900. during
which time. it is claimed, the islands
were neither an independent sove
reignty nor part of the United States
and We're somewhat in the condition re-
ferred to by Milton In the following
lines:
$50 here the Archangel paused
'Betwixt the world destroyed and
world restored
Then. with transition sweet
New speech resumes
And maintains the position, 10 support
which. il seems. the phrase was coined,
to-wit. that during this period the Com
stitution of the United States had no
force or effect in the Hawaiian Islands
From this doctrine and position | most
respectfully dissent. My reasons for so
doing are set out at length in the opin-
ion OF the court in ex-parte Edwards
fled this day. and it will be unnecessary
TO repeat them here. However. as the
dissenting opinion in the Edwards case
Is relied on as authority for denying the
principal contention of the defendant in
| this case, / am constrained TO stafe thar
the authorities relied on. ii seems, do not
clearly support the contention claimed
The quotation from the speech of Dan
lei Webster is clearly in point. but il is
| not controlling authority. particularly
so when lit is remembered that the words
quoted were uttered in the heat and pas
sion of political debate. in the senate
of the United States. 1t is possibly
sufficient answes to this authority to
state that John c. Calhoun. at the same
| time and place. maintained the opposite
view and supported the same with equal
learning and ability. and that seven years
| later 1850 the Supreme Court of the
United States approved Of the view ad-
! vceatei by Mr.. Calhoun and disapproved
OF those supported by Mr. Webster and
qnoted in the dissenting opinion in the
Edwards ease. tScost vs.. Sanford, 10
Haw- i=0l
The case Of United States Va Dawson
| u5 Haw.. 467l is not an authority
against the opinion Of the court in the
Edwards case The only question pre-
serted and decided in that case was one
of NEUTRALITY-SUSPICIOUS. defendant
should be tried in the Eastern OF West
crn district Of Arkansas for q crime
against The United States committed in
the Indian couArry known Is the In
dian Territory. The court deciding that
thr Sixth amendment of the constitu-
only 10 crimes committed In the Stases.r
| This case MAS decided ct the December
term 1Sy1 and If IL can b. said TO sup
pert the contention claimed il is clearly
in eon6ist with the opinions Of the same