The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-10-20
CONSTITUTION
AND THE FLAG
Judge A. S. HartweII Shows the
Fallacy Of the Contention That
the Former Follows the Latter.

Judge A. 5. Hartwell, one of the two
or three men who stand at the head of
the legal profession in these Islands,
was asked to give his views to the pub
lie on the Constitutional questions rails
ed by the Marshall and Edwards cases
and did so as follows:
Il 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
toral Supreme Court. l have express
IA that doubt in a brief argument l
was permitted to present to Judge Es-
tee before whom that question is now
pending.
The Territorial courts are as much
bound by the Constitution as is the
Federal court. AS pointed out bv
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 L met Mr.. Wade who
had been Chief Justice of the Supreme
Court of the Territory of Montana for
sixteen years and who described to me
the manner in which that court work
ed. First. the L. S. Grand and Petit
Juries were drawn and the u. s, cases
for the consideration of the jury were
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
all members of Congress who had lived
in the Territories were familiar.
A CHECK ON COURTS.
To have a Federal court authorized
to supersede judgments of the Terri
torial court, is a wholesome check upon
the judgments of 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 Il three-judge court
However, this is 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 L. s.
Constitution has been in force since
June II 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
rttory as elsewhere in the United
States
The Marshall case raises the uues-
ton whether the constitution had the
same force and effect prior to June IA
and after July 7, 1898, the day of the
approval of the Annexation resolution.
The decision of this question depends
upon the following considerations:
EXAMPLE OF ALASKA.
Il. 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?
2. Does the Annexation resolution
contain anything which caused the
Constitution to become operative in
Hawaii?
The mere fact of aunexing territory,
has never in the history of the United
states been treated as emitting the in
habltants of the annexed territory 70
all the rights secured by the constjtu-
tlon. In many cases it would have been
impossible to extend at once some con-
stitutional rights to the people of the
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 il was
purchased by the United States from
france were not considered fitted, or at
any rate were not allowed to exercise
all the rights secured by Magma Charta
ana asserted in the u. S. constitution
Ihe 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-
onging to the United States from the
moment it becomes the property of the
United States, that cannot result from
me condition of the people for they
nave nothing to say on the subject.
ENGAGEMENTS NECESSARY
1t must be, if at all, only by virtue |
IL something expressed or necessarily |
implied In the Constitution, and there |
s nothing in the Constitution on the |
subject unless it be in the preamble in |
men 1t is stated that the people of |
ne United States do ordain and estab-
lsh TINS Constitution for the United |
states OF America meaning by that 7
,Ap[ession not only the states of the
= hited states, and the union of the I
yates but all property wherever stu
tie belonging to the United States"
Judge Hartwell was asked: IF there
nothing In the Constitution making
operative in annexed Territory with
,ut special enactment by Congress-
men does the Newlands resolution ey,
'ressiy or by necessary implication ex-
ftrYAs i