The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-13
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20 is a party and where a constitu-
s.,, question Is involved, writ of err
:, should. save in exceptional cases. be
"a nut of the Supreme Court Of the
r,l,a5 states, because of the delicate ma
r,e Of a conflict OF state and national
s-isictions Here there can be no such
assict l have been unable to find any
m,borities Of like import where a con-
,irt,on is had In a Territory. Territorial
,,.ion alone is involved here. The Courts
rbich have considered this matter be-
Ore are all Territorial Courts, the al
sged conviction of the petitioner occur.
ing under Territorial law.
# should be here said that the Trri-
a1al situation of Hawaii Is peculiar.
We are by land and sea over five thou
and miles from the capital of our coun-
n. and practically the judicial officers
# this Territory are beyond the imme-
late range of all appellate judicial tri-
,1nals So all judicial officers here
.tould be especially interested in main
aiming public law in this Territory and
aore particularly in maintaining the
Snstltution and statutes of the United
safes applicable hereto.
In this habeas corpus matter, there is
vide difference of opinion among the
Janitorial judges. Both the Supreme
nd Circuit Courts differ with each 9TH
r and the members of the Supreme
lqrt differ among themselves; and espe-
ilIy so upon the question of the reia-
ion which this Territory bears to the
institution and laws of the United
States. For instance, the Supreme Court
II this Territory held, in the very recent
Ase of Honomu Sugar Co. VS.. Sayewiz,
q Ia q
Tie Constitution OF the United States
we're not in force here between the 7th
day Of July. 1893, and the 18TH day of
June, 1900. namely, Articles ", VI, VII,
ind XIII which Articles relate to indict-
nsnt by grand jury for Infamous
.rmes, to a common law jury trial, and
. the existence of slavery in this Terri
Dry of the United States. While the
Supreme Court decided In the case of
EI Parte Edwards (13 Haw., 32), that
70 person could be put upon trial for an
Infamous crime in the Hawaiian Islands
fter August 18th, 1883 (the date of the
taising OF the American flag here), with
out having been first indicted by a grand
1Ty, nor could he be convicted of such
rme save by the unanimous verdict of
Jury of twelve.
BURT Of the Territory on the 9Th day
Of June. 1899 In the case of Spencer VS..
Collector of Customs az Haw., go, that
Hawaii could register vessels although
NE Territory was annexed to and form
Cd part Of the United States.
This was practically overruled by the
Attorney General of the United States,
Who, in written opinion C22 Op- Atty.
zen. $50, instructed the Secretary of the
Treasury that:
With due respect to the Judgment OF
be supreme Court OF Hawaii, am I'M
DE 10 admit that an Hawaiian register
an now be issued to vessel and the
Ag Of Hawaii. the usual token of regis
adOn, be flown by her."
From these decisions it is clear there
wide divergence of opinion on the
Pr of the members of the Supreme
saTt of the Territory, as to the consti-
sanal question involved herein, and as
whether or not the people of this
sritory were during the period be-
zen July It'll. 1893, and June 18th, 1900,
ing in an American Territory and sub
to such laws as were not inconstst-
With the Joint Resolution of Annex
On nor contrary to the Constitution
the United States"
ae familiar rule OF stare decisis does
seem to receive recognition by the
sfeme Court of the Territory for that
lrt decides one way at one time and
F'laer way at other times upon ques-
Is Of the gravest Importance, and
eh cases involve identically the same
aeiple, The very uncertainty of that
arts opinions tends to disturb and I'm
lie the public mind as to the Constitu-
ND IL ~
conditions in this Territory, and is
rong inducement for this Court to
ieise its discretion in taking juris-
lon Of this proceeding.
s argued that the District and Cir
Courts of the United States are
us Of original and limited jurisdic-
which Is true; but the United States
1'es make it the duty of United
rs District and Circuit Judges to Is
NE writ OF habeas corpus when JUS
demands it, or when "a person Is In
oy in violation of the Constitutions
~on 1853, Rev. Stats. u. s., End ed
= the duty of the Courts to be
~~.iul Of the Constitutional rights OF
euzen." (Boyd VS.. u. s., 116 u. s.,
institutional provisions for the Sc
y Of persons and property should be
'Iy construed. Id, S3s.)
vas said by the Supreme Court OF
sAted States in the case of walker
r r r. Co., 165 u. g., quoting
Pages 1855:
aern 1t unnecessary to consider
rlesntion of defendant in error that
reilltorial Courts are not courts of
sa1ed States, and that the Seventh
Ssht Is not operative in the Ter
:, Ior by the act OF April 4, 1874.
In. olat u, Congress legisiating for
n territories, declared that no party
~ deprived OF the right of trial by
Sso Eases cognizahle at common law.
TINS may not In terms extend
;, p.oVisions OF the Seventh Amend
~ me Territories, 1t does secure all
az OF trial by jury as they ex-
Common law"
l., uue that the Constitution and
81 = ~ congress referred to In Walk
SsS K R. Co., supra, has been
oy the local Territorial Courts,
should be an immediate rem
I. net assistant Attorney General
u ~ suhent pressed upon the atten-
D. M. court the fact that on Oct
NJ, court dismissed the petition
use ~ ~ naoeas corpus presented in
IA ~ IN Re Marshall on the
a. iaek of Jurisdiction But in
e. e petitioner had been con-
aa W. isaemeanor and no Federal
gepss9 involved; the Court then.
-