The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-10-19
IN RE ". /. MARSHALL
BRIEF OF GEN. A. S. HARTwELL
IN THE CASE.
Holds That the Circumstances Do Not
Require Judge Estee to Take Juris-
diction-Writ of Error the Remedy.

A brief of Gen. A. S. Hartwell's ar
gument before Judge Estee on the
question of the courts jurisdiction in
the case is as follows:
In arguing this preliminary ques-
ton, the petitioners counsel assumed
that the conviction which was rendered
May Is, 1900, was absolutely void and
not merely voidabe, on the ground
that the case was not prosecuted on the
presentment or indictment of grand
jury, and that there was no conviction
by unanimous verdict, claiming that
the offense for which he was tried libel
in the first degree, was an infamous
Offense
1T appears that the defendant was
prosecuted on information before the
District Magistrate of Honolulu and
appealed from his conviction and SEN
tence in that Court to the First Circuit
Court of Oahu, where he was tried and
convicted by jury, on a verdict of nine
jurors.
Each of these proceedings was in
conformity with the Hawaiian statutes,
so that if the conviction was void, it is
on the ground that the statutes were
superseded by the provisions of the
United States Constitution on the en-
actment of the Newlands Resolution of
Annexation July I, 1898.
Without discussing this last ground
now, in connection with this question
of jurisdiction l merely suggest as fol-
lows:
"Q) To dispose finally in this court
of a question of such magnitude, if it
has not heretofore been decided by the
Supreme Court of the United States
would be contrary to the view of the
| United States Supreme Court expressed
as follows:
81 do not question the existence of
the power in the United States Circuit
Courts to grant writs of habeas corpus
when it is alleged that a person is de-
prived of his liberty by state action,
contrary to the provisions of the Fede-
cal Constitution; but it is a power to
be sparingly exercised When it ap-
pears that the petitioner is held under
the judgment of a state court of COM
| petent jurisdiction, before this court
should grant him a discharge it should
| be made to appear that the illegality of
his detention is beyond fair question;
and in all cases wherein the pivotal
point has not been finally decided by
the Supreme Court, but still remains a
debatable question, the Circuit Court
should not discharge the petitioner for
| this would be simply converting the
! writ of hdbeaS corpus into writ of
error. by means of which this court
would be asked to review the judgment
! OF lile Sldlt court upOll al htboNtiDlS
Iuuestion of law arising under the Fede-
! raj Constitution but which it was the
duty of that court to investigate and
! decide In such cases, the Federal
question can be readily presented to
the Supreme Court and, as there eX-
! lists this plain and proper remedy, 1t
should be followed
Per Shiras, j., in In re Spickler, 43
Fed. Rep. SOB.
"(2) The power of this Court in this
case. as in all other matters, is to be
found in the organic act OF the Terri
tory Of Hawaii, and is defined and linn
Iited by the provisions of that Act.
In order to declare judgment of a
court of the Republic of Hawaii Illegal
on any ground it would be necessary
to set aside or in some way dispose of
the provision contained in Section 10 of
the organic act, viz:
Sec. 10. That all rights of action
suits at law and in equity, prosecu-
lions. and judgments existing prior to
the taking effect of this Act shall con
tinue to be as effectual as If this Act
had not been passed; and those in favor
of or against the Republic Of Hawaii
and not assumed by or transferred 70
the United States, shall be equally
valid in favor of or against the gov
eminent of the Territory of Hawaii. ~