The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-10-17

JUDGE. ESTEE listened to argu-
ments on the question of the legal
ity of the incarceration Of william
n. Marshall all day yesterday and some
Of the most prominent members Of the
local bar took part in the discussion.
The question involved, whether in truth
the Constitution of the United States
came into force in the Islands after the
passage Of the Newlands resolution on
July Z. 1898, or not until the Islands
were made a Territory, is one of the
most interesting Constitutional Ques-
lions that has ever been brought into
any American court, and whether q
United States judge can, in effect re-
view a decision of a Territorial Su-
preme Court is another matter that
there is much doubt about, so many of
the ablest attorneys In the city were in
attendance in court to listen or take
part in the arguments. Besides Attor-
ney General Dole, who argued for the
prosecution and j. T. DeBolt, Mar
shalls attorney. arguments were given
by ex-Attorney General w.. o. Smith,
General A. s. Hartwell, United States
District Attorney John c. Baird, and
A b. Lewis. and a number of other
members Of the bar were present who
took no part in the proceedings.
DEBOLT PRESENTS CASE.
Mr. DeBolt presented his clients case
at the opening of court. He said that
unless the writ were granted substan-
tial damages would be done to the petit
toner. for by following his only other
remedy at law he would have to appeal
the case to the Supreme Court of the
United States. 1t would require at least
year to get the case heard in that
court and in the meantime he would
have completed his sentence which is
for six months Imprisonment
Mr.. DeBolt cited numerous cases in
Estee had jurisdiction to hear the case.
He spoke Of a case which arose out OF
the~dispensary law of South Carolina.
The master and mate Of a schooner
bringing liquor from Savannah, Geor-
gia, to Charleston, South Carolina, were
arrested on landing at the wharf at the
latter place. The Federal court took
jurisdiction on petition for the writ of
habeas corpus although the petitioner
had not exhausted his remedy by ap-
peal through the state courts. In con-
nection with this. Mr.. DeBolt pointed
out that in all these cases jurisdiction
had been taken by the Federal courts
though there were still state courts to
which he might appeal. The point of
this, as Mr.. DeBolt claimed. was that
the comfy of courts did not stay the
hand of the Federal courts when con-
stitutional rights are involved. While
the writ Of habeas corpus Is writ Of
right II does not issue as a matter Of
course.
UNDER THE CONSTITUTION
1t will not issue in a case when the
petition on it's face shows that the petit
toner has not suffered any loss of his
rights under the constitution of the
United States. In support of this Mr..
DeBolt cited a decision from Tennessee
rendered by Judge Jackson now Of the
United States Supreme Court, in which
the doctrine is stated in almost those
exact words. Mr.. DeBolt argued from
this that the rule was that the writ
would issue and the court take juris-
diction where the petition shows on its
face that the petitioners rights under
the United States constitution have
been violated; and the petition in this
case, he asserted, showed this clearly.
In concluding his argument Mr. De Bolt
said that the United States Supreme
Court had gone so far as to hold that per-
scnal liberty was so sacred that the Fed
eral Courts would interfere to preserve ii
even If the petitioner might have other
remedies.
Attorney General f. p. Dole opened for
, the Government. He said that while the
present case arose out of a conviction in
an obscure libel case. still it was one OF
the most important matters which had yet
come before the courts of Hawaii for Its
results would be far reaching, no matter
what might be the decision of the court
IF the contention of the petitioner 1:
| maintained" he said, then every mar
| convicted since the 18th day of August
1898. is entitled to his liberty There are
perhaps thirty men whose hands are rec
with human blood, and who are serving
terms from life to small term of years
and perhaps 100 others convicted of lessee
crimes, who will go free.
| Yet this community can protect itsel
against twenty-five or thirty murderer
and hundred men convicted of rape
burglary, arson and other crimes The,
viii die In the course of nature.
But this question involves the Terri
tory in other ways. If the contention
made here Is correct, then the duties col
lccted by the Hawaiian Custom hous
since August II, 1898, have been illegal,
collected. The customs duties on Hawaii
an products collected in New York an
San Francisco since August II, 1898. hay
been collected Illegally.
PORTO RICO GOVERNMENT.
IF this contention Is correct. then MI
Mckinley's administration is governin
Porto Rico illegally. If this contention
correct, then the United States is eithe
Illegally in the Philippines or else the 10,
100000 semi-savages of those islands ar
citizens of the United States
In short, the question Is, does the Con
stitution follow the flag or is it extends
by Congress?
This Is one of the greatest and mos
profound questions ever presented befor
court. 1t involves the question O
whether the great United States shal
take its place as a world power or e
back to its farm. 1t is in these aspect
that the case Is important to the $4,000. 90
people OF America. Mr.. Marshall in thi
case is comparatively unimportant. Blu
the precedent set, IL this court takes juris
diction, viii go on with it's influence 70
years and decades, affecting the Who'll
course of history and the American PEG
pie.
1T is in these aspects that the case
important"
I r.