The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-10-16
Arguing THE QUESTION, DOES THE CONSTITUTION FOLLOW THE FLAG?

The question of the Jurisdiction of
Judge Estee's court in the w. H. Mar
shall habeas corpus case was argued
this morning. ]. 7. De Bolt appeared for
Marshall; D. p. Dole and w. o. Smith
contra; District Attorney j. G. Baird,
amicus curiae or friend of the court.
Mr.. De Bolt opened the case for the
petitioner. He submitted that the court
has jurisdiction. The court here occu-
pies an unusual position. Besides hav-
ing the usual powers, 1t has been given
by the Enabling Act some of the pow
ers of the circuit court. In addition the
court should take into consideration
the distance of this territory from the
mainland, and the difficulty and expense
of appeal.
From this point the attorney recited
the particulars of the trial of Marshall,
and declared that conviction by jury
of less than twelve jurors was contrary
to the Constitution and that the sem
tence was therefore null and void.
Mr.. De Bolt here read Section S6 of
the Organic Act which gives the dis
trict judge jurisdiction in both district
and circuit court matters.
He next took up the question of the
court having the power to handle ha-
beas corpus matters and cited authori-
ties to show that all United States
courts have such powers.
1t was contended that petitioner had
q further right to be heard on the
ground that the question of Constitu-
tionality of decision and sentence had
been regularly brought in the Terr1tori-
al Supreme Court
JUSTICE DENIED.
He held that there was no question
as to the power of the court to hold IT,
self in jurisdiction. The only thing was
discretion, and he submitted that in
this case this discretion should be used
At this point Mr.. De Bolt made an elo-
quent appeal for his client, declaring
that if jurisdiction was not affirmed
justice would be denied.
Introductory to a citation from the
case of Grice, Mr.. De Bolt said that al
the cases in point were cases from state
courts. There was wider difference,
wider separation between state and fe'
deral courts. There were two sovereign
ties. While in this as in all territories
there is not the same separation, all the
courts, as all the departments, being
under the'direct supervision and contro
of Congress.
In this case of Grice, Mr. De Bolt helt
that while the Supreme Court did no
allow the petition, it laid down the
principle that the federal courts hac
jurisdiction under certain circumstances
appealing to it's discretion to grant thu
writ to persons held under process O.
state courts.
=. A DIsPENsARY CASE.
Another case cited arose out of thu
dispensary law of South Carolina. TIL
master and mate of a schooner pt1nGlN
liquor from Savannah, Georgs~ :,
Charleston, South Carolina were - y
ed on landing at the wharf al the latte
place The federal court took Jurisdic
tion on petition for the writ of habea
corpus although the petitioner had no
exhausted his remedy by appea
through the state courts. In connection
with this, Mr.. De Bolt pointed out tha
in all these cases jurisdiction had beel
taken by the federal courts though
there were still state courts to which h
might appeal. The point of this, as MI
De Bolt claimed was that the comit.
of courts did not stay the han(
of the federal courts when constitu
tional rights are involved. While th
writ of habeas corpus is a writ of righ
1T does not issue as matter or course
1t will not issue in case when the pc
tition on it's face shows that the peti
toner has not suffered any loss of hi
rights under the constitution of tn
United States. In support of this MI
De Bolt cited decision from Tennessee
rendered by Judge Jackson now of tn
United States Supreme Court, in whlcl
the doctrine is stated in almost thos
exact words Mr.. De Bolt argued fror
this that the rule was that the wri
would issue and the court take juris
diction where the petition shows on it
face that the petitioners rights unde
the United States constitution hav
been violated; and the petition in thi
case, he asserted, showed this clearly
In conclusion Mr.. De Bolt read de
cision from the United States Suprem
Court in which the court said that per
sonal liberty was so sacred that tn
federal courts would interfere to pre-
serve 1t even If the petitioner Nigh
have other remedies. The distance O
the petitioner from Washington wher
the supreme court sits, the expense O
prosecuting a writ of error, all thes
were circumstances, Mr.. De Bolt argue
which made it proper for the court
exercise its undoubted right of jurisdiC
tion. t-
ATTORNEY GENERAL.
When Mr.. De Bolt had conclude
Judge Estee asked If there were an
others who wished to address the coui
on that side Of the question. There bt
ing none, Attorney General Dole opene
the argument, against the jurisdictio
of the court.
although this case arises on judge