The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-05-22
OFFICIALS IN COURT FOR
REFUSING TO TESTIFY

, stated in the beginning, not question
of good faith or the secrecy of the jury,
but the fact that matters in the pos
session of the Executive are not yet pre-
pared for disclosure. Further than that,
| I say broadly that in some sense there
| is no secrecy to investigation by
Grand Jury. The Grand Jurors are
sworn to secrecy, presumably every man
keeps his oath, presumably every witness
keeps his oath, but the newspapers
spread broadcast what is going on every
. witness that goes into that Grand Jury
| room is known and watched and his
name appears in the papers, and whether
he is there five minutes or half an hour
! is told in the papers People judge from
the witness and the time he has been
there. what he has said; this witness,
that witness or the other witness and the
guilty parties who know what evidence
might be had are thus put upon their
guard and the ends of justice are defeat
ed The prosecuting attorney acting I'M
der direction of the Government, the
head of the Attorney Generals Depart
ment and not this Court is the person
iwho has the responsibility and must ex-
erciSe 1t according TO his oatn and Will
do so.
/ I now call Your Honor's attention to
| the concluding paragraph OF the opinion
of the Supreme Court of the United
States delivered by Mr.. Justice Field in
Tooten VS.. the United States, go United
States, 107:
1--WE have no difficulty as to the au
4 thority of the President in the matter.
/ "Buth employer and agent must have
understood that the lips of the other were
| to be forever sealed respecting the rela-
| ton of either to the matter. secret
/ service with liability to publicity in this
way would be impossible; and as such
| services are sometimes Indispensable to
the Government, it's agents in those SER
vices must look for their compensation to
the contingent fund of the Department
employing them and to such allowance
from it as those who dispensed that fund
may award. The secrecy which such con-
tracts impose precludes any action for
| their enforcement 1t may be STAYED as
| a general principle that public policy
! forbids the maintenance of any suit in
any court of justice the trial of which
would inevitably lead to the disclosure of
matters which the law itself regards as
| confidential and respecting which 1t will
not allow the confidence to be violated
| But think the authority which 1 have
Your Honor that the divulgence of these
matters which has come to the Govern
ment and to the Acting Governor, and
to the heads of departments as such in
the discharge of their official duties are
a trust which the Executive cannot, as
it regards its duty, surrender at the or
der of any power short of the Supreme
Court of this Territory. They have been
| actuated and are actuated by an honest
desire to do their part and keep this
lGovernment clean in the future as it has
been in the past They started out for
the purpose of obtaining evidence, which
requires time. To order tn,s evidence
laid before the Grand Jury and to obey
the order at the present time would give
| immunity and freedom to criminals.
That is what is our belief. nat Govern
or is charged by the Organic Act with
the faithful execution of tie law. He has
taken a solemn oath to perform that du-
ty. The heads of departments under
him are under like duties and like re-
sponsibilities. They cannot violate their
| oaths; they cannot surrender their du-
| ties; they cannot escape their responsi-
bilities. Where the path of duty seems
clear and plain to them they cannot take
1t by virtue of an order which they be-
iieve they know is illegal.
| In the case of Vogel VS.. Gruaz, no
United States, 81, the syllabus. is as
follows: "a communication made to a
State attorney in Illinois, his duty being
to commence and prosecute all criminal
prosecutions, by a person who inquiries
of the attorney whether the facts COM
inundated make out a case of larceny
for a criminal prosecution. is an abso-
!iutely privileged communication. and
cannot in a suit against such person to
iron do fnr- CYan m c
charging larceny, be testified to by the
States Attorney, even though there be
evidence of the speaking of the same
words to other persons than such attor-
ney."
| In 109 Massachusetts, page ASS, Worth
Iington VS.. Scrbner, the Court say: 1T
is the duty of every citizen to commune
cate to his Government any information
which he has of the commission of an
offense against its laws. To encourage
him in performing this duty without fear
of consequences the law holds such in
formation to be among the secrets of
state and leaves the question how far
and under what circumstances the names
of the informers and the channel of
communication shall be suffered to be
known, to the absolute discretion of the
Government, to be exercised according
to it's views of what the interests of the
public require Courts of justice there
fore will not compel or allow the dis
covery of such information, either by the
subordinate officer to whom it is given,
by the informer himself or by any other
person, without the permission of the
Government. The evidence is excluded,
not for the protection of the witness or
of the party in the particular case, but
upon general ground of public policy, be-
cause of the confidential nature of such
communications"
/ put the defense of the Acting Gov
ernor and Mr.. McCandless on three
grounds-first, that their testimony would
be excluded the ground of hearsay
second, that information received by pub
lie officials in this way, that the people
who give it for the ends of justice, can
not be subjected to exposure; and third,
that the functions of the Government
are threefold, the departments being the
legislative, executive and judicial, which
have separate functions, separate duties
and separate responsibilities.
There appeared as amiei curae
Thomas II. Fitch and Frank Thomp-
son and at the conclusion of the ar