The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-09-13
JUDGE EsTgE's DECISION.

Contrary 10 a widespread local be-
lief. the question as TO whether the
consultation follows the flag was
not involved In the habeas corpus
case decided yesterday by Judge Is
tee in the United States District
Court While constitutional questions
we're decided, in that case the United
States constitution came into the case
only incidentally. It was not neces-
sary TO decide whether the constitu-
ticn applied ex proprio vigore, l. e..
By its own force When Congress
passed the joint resolution of July 7.
1883, it laid down certain principles
70 guide the administration of justice
in these islands. among them being
the following: THE municipal legis-
lation Of the Hawaiian Islands. not
enacted for the fulhIlment of the trea-
ties so extinguished, and not incon-
sistent with this joint resolution nor
contrary to the constitution Of the
United States, nor to any existing
treaty OF the United States. shall re-
main in force until the Congress OF
the United States shall otherwise de-
termine."
It will be observed that Congress
did not specifically make applicable
the constitution; 1t simply declared,
in effect. that any municipal legisla-
ton contrary to the constitution
should not be in force.
Amendment FIVE Of the Constitution
provides that mo person shall be held
to answer for e capital. or otherwise
infamous crime. unless on a present
ment or indictment of a grand jury"
&C
The joint resolution might have
contained this provision as q separate
paragraph. but it was broad in its
scope and made all municipal legis-
lation of the Islands that was con-
trary to the constitution, void and OF
no effect It IS therefore clear that
it was not necessary for Judge Estee
to consider or decide whether the con
stitution followed the flag as a mat
ter Of course.
The rule is well settled by a long
line of decisions. that a joint resolu-
ton of Congress. approved by the
President. has all the force and effect
Of statute. In addition to this. the
Joint resolution. by referring to the
constitution in the manner it did. vir-
tually incorporated the constitutional
provisions into the resolution, so that
with respect to indictments or pre-
sentiments by grand jury, the Ian
guage of the fifth amendment, above
quoted. was practically written into
the joint resolution. The resolution
may well have said: NO person
shall be held to answer for a capital
or otherwise infamous crime, in the
Hawaiian Islands. unless on a pre-
sentiment or indictment of a grand
jury" II this had been done. it would
have been unnecessary to inquire into
the constitutional limitations on prose
cuticns for crime in Hawaii.
The language of the joint resolution
s plain. and free from all ambiguity.
Regardless of the question of the ap-
plicability of the constitution general
". the resolution clearly defined what
local municipal laws should con-
tinue in force. and what local laws
should cease and determine.
Judge Estee. then. was not obliged
to pass upon the question OF the COM |
panionship of the flag and the con-
stitution- He decided only what was |
necessary to decide. and that was.
as to what was the law controlling the
case And. as the alleged crime was
committed after the adoption Of the
Joint resolution. he held that the
rights Of the defendant were deter.
under that joint resolution.
Judge Estee held that there was no
'oom or need for construction or ap-
piication by relation. The substan-
i've law was plain. and it clearly Gov
red the case. The proximity of the
to the flag had no bearing
N the case. The single and only
)oint decided was thar any narson
Eho committed an infamous crime
n Hawaii after July I. 1895. was en-
tiled to be indicted and tried accord
ng to the rnles laid down in the con-
titution-one Of which is the neces-
ity OF indictment by a grand jury,
nd another being the right to the $
rial BY q jury OF twelve men who
hali all agree upon a verdict Of gull ;
; to justify conviction.
r