The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-10-23
MARSHALL IS RENANDED DOLE GREETS SHR|NERS
JUDGE ESTEE DISCLAIMS ANY
JURISDICTION.
The Constitution Follows the Flag Only
by Way of Writ of Error to the
Supreme Court


United States District Judge Estee
decided this morning that the Consti-
tuition does not follow the flag. AS the
result of this decision William H. Mar
shall was remanded to the custody of
the authorities and will probably have
to serve out six months sentence for
criminal libel of the late Chief Justice
Judd The court announced that the
only relief which Marshall had was in
a writ of error to the Supreme Court of
the United States. Between July Z,
1898 when the Islands were annexed
and June H. 1900 when the Organic Law
went into force, the Constitution was
backed into a siding, while the flag
went floating on across the Pacic.
The opinion was given on the question
of the jurisdiction of the Federal court
to act upon the petition of Marshall for
writ of habeas corpus. After the de-
cision of the circuit court was sustain
ed by the Supreme court and Marshall
remanded to the custody of the police
writ of habeas corpus was prayed for
in Judge Estee's court. Arguments
were heard upon the jurisdiction of
this court.
In deciding the application the court
says that the Supreme court of the Uni
ted States has held except in rare in
stances that United States District and
circuit courts should not summarily
dlscharge persons from custody and
that the proper course should be to
sue out writ of error to the Supreme
court. The court cited a number of de-
clslons in support of this position and
in concluding said:
The conditions which existed on
these Islands when annexed to the
United states We're unusual. This ter
ritory had a civilization peculiar to it.
with a written constitution, civil and
penal statutes courts of justice with
established Jurisdiction 1t had public
schools and other institutions of learn
ing and laws enforcing compulsory edu-
cation. 1t was not mere territory lying
In mid-ocean unused, but ready for
mans use. 1t was a free, enlightened
state possessing all the attributes of
sovereignty, and when with its consent
| the Islands were annexed by the United
| states, not only the lands but the peo-
pie with their laws and customs were
annexed; and by the we'll established
law of nations, these laws and customs
remained in force until new laws were
enacted for the government of the ter
ritory (Sec. 10 Sutherland on Stat. Con-
struc. page 10; Black on Constitutional
Law, page POS; American ms. Co. VS..
Canter, l Pet. 541; Cross vs.. Harrison
| 16 How. 164-1S4)
These Islands although originally a
| monarchy had become a republic and
the people were somewhat versed in the
principles of self government. So much
was this so, that Congress waited near
| ly two years before enacting a law for
the government of the territory In the
mean time, no laws were enforced in
the territory of Hawaii but the laws of
the Republic of Hawaii. The strong
arm of the Federal government was not
felt here. The former laws and judicial
| procedure remained and continued in
force until the SOth day of April 1900,
when Congress passed the Enabling
Act which went into effect on the 14th
day of June, 1900. This Act though pro-
viding for a different form of govern
ment for the new territory of Hawaii
continued in force many of the former
laws of the Islands and prescribed es-
pecially:
"'That all suits at law and in equity,
prosecutions and judgments existing
prior to the passage of this Act shall
continue to be. as effectual as if this Act
had not been passed. (Sec. 10, p. G. "Act
to provide a government for the Terri
tory of Hawaii.")
"The offense charged and described in
the petition for the writ of habeas cor
pus is libel, which under the laws of
Hawaii is a misdemeanor Section 3O5
|
fixes the maximum punishment upon
conviction for libel in the first degree
at not more than one years imprison-
ment at hard labor or by fine not ex-
ceeding one thousand dollars.
Felony is defined in the same laws
as follows:
"'Sec. 8. The terms felony and
crime are within the meaning of the
provisions of this Code synonymous
and mean such offenses as are punish
able with death or Imprisonment. for g
longer period than two years or by the
forfeiture of any civil or political righ
and also larceny. Any offense not ap
pearing TO be a felony or crime Is
misdemeanor'
Section 304 of the same laws, divides
, the offense of libel into two degrees
and the degree is to be found by thu
, jury, or determined by the court OIL
| magistrate authorized to decide on thu
facts
: "section 6S4 gives district magistrates
Jurisdiction for the prosecution tria
, and sentence of any person charged
with either of the following offenses
I namely: any misdemeanor
''It thus appears that there may be
e trial and conviction for libel by cour
or magistrate without the Intervention
of a Jury. There was however in thi
case a trial by jury as shown by tn
e petition, the grievance set up beinI
;, that the verdict of guilty was toun'
r and returned by nine jurors, wherea
: three jurors dissented which verdict
: the petitioner alleges, was and is con
e trary to the Sixth Amendment OF tn
e Constitution of the United States
s "Secion 3. Article of the Constitu
o ton of the Republic of Hawaii, author
e lied the Legislature to fix the numbe
- of jurors required to agree on Ver
diet in 'offenses less than felonies.
"In pursuance of this. constitutions
provision there was enacted by IN
3 Legislature of the Republic of Hawa
e (Sec 1345 Civil Laws) a law providin
q that no jury, for the trial of any cas-
a civil or criminal, shall be less tina
twelve I'm number; but when nine
such jury shall agree upon Verdlc
they may render the same, and sue
verdict shall be as valid and bindin
n upon the parties as If rendered by a
3 twelve.
J. "The first point urged upon the cou
xvaa that the natitiOner had been col