The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-07-24
AGAIN The
FLAG ISSUE
Judge Gear Will
Pass Upon Jap
Cases.
ATTY. GEN. DOLE
PRESENTS A BRIEF
Court Will Decide Today Rapist
and Burglar Convicted by
Majority Verdicts.


Hawaii yesterday afternoon. Attorney
General Dole raised the question in the
applica ton for writ of habeas corpus
in the cases of Gabo Hazzo, serving a
prison on a conviction for burglary.
Both men are Japanese and were con-
victed on majority jury verdict under
the old Territorial law. Their attorney,
F. NJ. Brooks, claimed that such convic-
ton was contrary to the Constitution of
the United States and that they should
be released.
Judge Gear will pass upon the case
this morning, though he has plainly in
Edicated what his position will be, name
lily that the law under which the prison
ers were convicted was in contraven-
ton of the Constitution of the United
States, and they should be released.
While, of course, such decision would
set a precedent to other criminals con-
victed on a verdict of less than twelve
Jurors it is not believed by the court
that many, if any other prisoners, will
take advantage of the decision to APP
ply for a writ of habeas corpus.
The case was not called up before
noon yesterday, Attorney Brooks APP
pearing in court with both prisoners at
that time. He said he had no argument
to make and simply wished to call the
attention of the court to the recent de-
cisions of the United States Supreme
Court bearing on the question.
Attorney General Dole presented
long and comprehensive brief in sup
port of his contention that the "Consti-
tuition does not necessarily follow the
flag, per Sc and that the laws of the
Hawaiian Islands remained in force ex-
cept;ng where expressly set out by the
NewIands resolution and the Constitu-
ton.
He contended that unless the laws of
the Republic remained in effect until
after the passage of the Organic Act,
there would have been no protection
Whatsoever from murder. rape, robbery
and other crimes, and it was clearly not
the intent of the President and of Con-
gress to permit such q condition.
In answer to a question from the court
the Attorney General argued that i'm
some States where there is no provision
for a grand jury, criminal cases were
not invalidated, though the United
States Constitution holds such jury
necessary Until the laws of the ISL
ands were declared null by act of Con-
gress. he argued that the laws in force
| in the Republic were In effect.
In concluding, Attorney General Dole
summed up his arguments in the fol-
lowing language:
| 40
cred and the Stars and Stripes were
raised, the Hawaiian Islands became
a part of the United States, not a
| State, not an organized Territory, put
| the remains of what had been an in
dependent republic, retaining to de-
gree it's established laws and institu-
lions until its status should be deter
mined by the American Congress. AS
land it was physically part of the
| United States the same as the State
of Massachusetts,, or the organized
Territory of Arizona, or the morgan
! lied uossession of Alaska is a part of
the United States 1t had ceased to be
known among the nations of the earth.
AS far as they were concerned ITS 1oen-
tity was lost in the great federal re-
public.
s.The De Lima decision is founded
upon the constitutional provision that
all duties, imposts and excuses snail De
uniform throughout the United States.
These are matters which concern our
relations with foreign powers, and with
which, of necessity, the United States
only can deal. The American Con-
gress attempted to leave the Hawaiian
tariff laws untouched The Supreme
Court of the United States has held
that in so doing it exceeded it's con-
stitutional powers, because of the con-
stitutional provision that all duties,
inposts and excuses shall be uniform
throughout the United States
.It seems clear to me that the DE
Lima decision is not relevant to the
cases before this court. The constitu-
tionaI provision that all duties, imposts
and excuses shall be uniform through
out the United States applies to the
State of Massachusetts as fully as to
organized or unorganized Territories.
1t appears to include every foot OF Am
erican soil. On the other hand, it is
settled by a long and unquestionable
line of decisions that the first ten
amendments to the constitution of the
United States do not apply to the
States themselves. Every State has
the right In the exercise of its own
discretion to, abolish the grand jury
system; several States have done So
Every State has the right in the exer-
else of its own discretion to provide
l
valid in civil and in criminal cases;
several States have done so. Every
state has the right in the exercise OF
its own discretion to abolish trial by
jury altogether in the State courts, al
though no State has done so.
Here was an independent nation
which had had constitutional govern
ment as liberal, perhaps, as its people
were capable of sustaining. for nearly
sixty years Upon the 18th of August
1898. it surrendered it's independent ma.
tionality and became a part OF the
United States. It had never adopted
the grand jury system. 1t had no lega
machinery for summoning and empan'
neling grand. jurors. 1t had never re-
ouired veridicts of petit juries. in eth
| er civil or criminal cases, to be unani
NOUS It had no laws under which