The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-09-12
FLAG AND CONSTITUTION.
CONTINUED from Page One)

save by the unanimous verdict Of a jury
of twelve.
From these decisions 1t is clear there
is a wide divergence of opinion on the
| part of the members of the Supreme
| Court of the Territory. as to the COM
! stitutional question involved herein,
| and as to whether or not the people
| of this territory were during the period
! between July T. 1898, and June l4th 1900.
! living in an American territory and sub
! ject to such laws as were not inconsist-
ent with the Joint Resolution of annex
alton nor contrary to the constitution
of the United States.
The familiar rule OF stare decisis
does not seem to receive recognition by
| the Supreme Court of the Territory for
that Court decides one way at one time
and another way at other times upon
questions of the gravest Importance
and which sesinvolve identically the
same principle. The very uncertainty
of that Courts opinions tends to dis
Iturb and unsettle the public mind as to
the constitution and it's application to
| the people of and conditions in this
| Territory, and is a strong inducement
for this Court to exercise it's discretion
lin taking jurisdiction of this proceed
ing
| IF it be true that the Constitution
and the Act of Congress referred TO in
Walker VS.. :. =. X. X. Co. supra. has
been nullifed by the local territorial
Courts then there \should be an tmme-
date remedy.
In view of all the circumstances
therefore, | think it would be in fur
therance of public justice for me to
exercise my discretion by assuming
jurisdiction in this proceeding. l shall
therefore consider the case under the
writ.
THE right of appeal in habeas corpus
81. tel ,frs 70, 10
territorial Supreme court this court Will
| not consider. That is a matter entirely
within the province of the territorial
Courts.
80 also as to the objections sub
mitted in relation to Mr.. Justice Perry
sitting as one of the Appellate Judges
in this case, originally tried by him
while Circuit Judge. That is largely
matter of discretion on his part and
| will not assume to question the Wis
dom of such discretion.
THE resolution of annexation of the
Hawaiian Islands as passed by Con-
greSS, prescribes that they are annexed
as a part of the Territory of the United
States and are subject to the sover-
eign dominion thereof and on August
18th. 1898, the American flag was raised
on the Islands. 1t matters not techin-
cally whether the Constitution follow
ed the flag or follows American sOver-
eighty came all of American law not
especially reserved by the Joint Re-
solution of annexation. 1t goes with
out saying that two sovereignties could
not exist here at the same time, and
when the resolution of annexation pro-
vided that the municipal legislation of
the Hawaiian Islands not inconsistent
with this Joint Resolution nor contrary
| to the institution of the United States
should remain in force. it meant that
all municipal legislative enaCtments Of
the Republic of Hawaii contrary there
to should be abrOgated. No reservation
was made in the Joint Resolution of Ar
tices V, VI and VII of the Amend
ments to the Constitution, relating to
indictments or trial by jury, in common
law or criminal cases. 1t showed that
American sovereignty not only prevail
ed here, as elsewhere in the territories
of the United States, but that nothing
could be done or permitted here COLI
trary to the Constitution of the United
States, excepting as expressly provided
in the Joint Resolution of annexation.
This annexation was not as claimed by
the supreme Court of the Territory in
the case of Peacock VS. Republic of
Hawaii az Haw. 33t in transition or
inchOate state, but was complete, ana
the Constitution came with annexation
and became and ever since has been
the supreme law of this Territory. This
is of paramount interest to the people
of this Territory as it secures to ali the
equal protection of life, liberty and
property which are fundamental rights,
and chief among which is the trial by
jury.
I'm the exercise of the plenary power
conferred upon it, Congress provided
by the Joint Resolution of annexation
that all municipal legislation of the
Republic of Hawaii contrary to the
nj Tot .ssf
should be repealed. leaving in force all
that was not in conflict Herewith. No
language could be palmer. l am con-
strained to hold that it was the inten-
ton of Congress to extend the Consti-
tuition save as limited by the other pro-
Visions of the Joint Resolution, over
these Islands, and any other construc-
ton would be a straining after that
which does not appear in the language
of the Act
The finding of a true bill by a Cir
cult Judge or in any other manner than
by the indictment of a Grand Jury
properly and legally empowered to act
in the premises, is in direct violation
of the provisions of Article V of the
Amendments to the Constitution of the
United States, and any person found
guilty of an infamous crime without
such indictment by a Grand Jury is
illegally convicted and should be re-
leased on habeas corpus. (Ex parte
Balm, 121 u. S. /; Eek parte Parks, SO
U. S. IS; Gallon VS.. Wilson, 127 U. S.
800
1T is fallacious to attempt to limit
the force of the constitution i'm this
territory or in view of the clear intent
of the Resolution of Annexation to cur
tail the constitutional rights of the citi-
zen. The pointing out to the oeople as
the Supreme Court of the territory has
done that the constitution is not here
in all it's fullness,' without stating
what parts are and what parts are not
here simply befOgs the question: and
the argument of the Assistant Attor-
ney General Of the territory that trial
by Jury is not one of the fundamental
propositions of the constitution is con-
Itrary to the settled opinions of such
'illustrious American jurists as Mar
shall Story and Kent, and also of the
leading American statesmen who as
sisted in framing those Amendments to
the Constitution.
"The history of the trial by Jury is