The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-09-13

land, +. wheaton, s.s.
THAT tn. power over the Territories
l. vested IN Congress without Limitation.
and this power has h..a considered the
foundation upon which the tcrrituf Al
governments rests"
A. to territorial authorities on uurs-
tons ~ the Territories being subject To-
Federal provisions. s,- bradford ~.
Tc r.. ! OH. Ses. Waller vs. y NJ u
X. Co y. Mex, ~
In the ,N-rcisc OF the plcnary power
conferred upon IL. Congress provided by
the joint Resolution of Annexation that
all municipal icgislat ON OF the Republic
Of Hawaii contrary to the Constitution
OF the United states should be- repealed,
leaving Ia force all that was no; In con-
iiiVt herewith. No languag, could bc
palmer am constrained to hold that
1t Mas the intention of Congress to ex-
tend the Constitution save a. limited 10y
the other provisions OF the Joint Resolu-
i!oH, over these Islands and any other
construction would b, "A straining after
that which does not appear in the Ian.
guagc OF the act.
Az was said by the Supreme Court of
IN" United states In the recent lnsular
cases downs vs.. Bidwell, Isl L. :.
TSD:
w hen the Constitution has been once
formally extended 10y Congress TO tn"
Torritori,s, ncithe" Congress nor IN,
Territorial legislature can enact laws
Inconsistent herewith And if Congress
cannot control the Constitutional rights
of citizens after they have once been ,X-
tended To them in the Territories, how
can the Territories themselves do this
through their Courts or otherwlse7
See Thompson VS. Utah. l70 L. S,
where the Court. at page $40. says:
Assuming that the provisions relating
to trials for c'ln,e and criminal prose-
cutions apply to the Territories OF the
United States, the next inquiry is,
whether the Jur! referred 10 in the orig
inal Constitution and In the Sixth
Amendment thereto IL a jury constituted
az 1t was AT common law OF twelve per-
sons neither more nor less. This
question may be answered in the afflrma-
tive. Quoting approvinHly from Spring
VILE Va Thomas, 16s L. s., TU;, where tho
Court say:
In our opinion, the Seventh Amend
ment secured unanimity In finding n YER
dict. AZ an essential feature OF trial by
jury in common law cases and the Act
of Congress could not impart the power
to change tho Constitutional rule and
could not be- treated as attempting to do
So"
And again. on page 366 CThompson w,
Utah. supra), the Court say:
THE Constitution OF the United States
gave the accused ut the time Of the COM
mission Of the offcnse, IA right TO be tried
10y a jury of twelve persons, and made II
impossible TO deprive him of his liberty
except 10y the unanimous verdict of such
jury"
,,.a l,gt. R.aiI
4S7, 400; American Publishing Co. vs..
Fisher. l65 Il. S.. aga, 46S.
The finding of true bill by Circuit
Judge or in any other manner than by
the Indictment of grand jury properly
and legally empowered to act in the
premises Is In direct violation OF the
provisions OF Article V of the Amend
ments to the Constitution of the United
States. and any person found guilty or
an infamous crime without such indict-
ment by Il grand jury In Illegally convict
ed and should be released on habeas
corpus. (Ex Parte Balm. l2l Y. s., /; Es
Parte Parks. % u. S., Is; Gallon w. WI.
son, III U. s.. 54o)
1t Is fallacious to attempt to limit the
force of the Constitution In this Terri
tory. or in view Of the clear intent OF
the Resolution Of Annexation. to curtau
the Constitutional rights OF the cttisen.
The pointing Out to the people as the
Supreme Court Of the Territory has done
that the Consultation '.is not here in all
It's fullness. "'&fshout st4tlhg what parts
arc and what parts arc not here. simply
befpgs the question; and the argument OF
tho Assistant Attorney General OF the
Territory that trial by Jury IL not one
Of the fundamental propositions of the
Constitution IL contrary to the settled
opinions Of such illustrious American
jurists as Marshall, Story and Kent. and
also Of the leading American statesmen
who assisted In forming those Amend
ments to the Constitution.
The history OF the trial by jury is the
history of English and American civtlis.
alton. II has come down to us from
Magma Charta, and In criminal cases
every presumption Is In favor OF sustain.
ing 81
am 6f the opinion that the proceed
ings in the Territorial Courts of Hawaii
for the indictment and conviction of the
petitioner herein were contrary to law
and void, and ne Is entitled TO DO dis
charged on habeas corpus.
Let the prisoner be discharged.
/, ....., ESTEE.
Judge,
DATED: September 18th. 1901.