The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-13

oe@eCS ieduS, IN part, as f0llOWS: |
no person shall be held to answer for
capital or otherwise infamous crime
unless on presentment or Indictment
OF grand jury
Even II this constitutional provision
mad never been construed. the language
Is too plain for doubt
IL mas been held by the Supreme Court
| OF the UnfNd States that the Fifth and
sixth Amendments to the Constitution
We're not designed as. limits upon the
state governments in reference to their
own citizens, but are only restrictions
upon the Federal power Barron vs.
/ baltimore, Peters, 243; Thorington vs.
4 Montgomery, 147 u. S., 1907
! The Hawaiian Islands were territory
| of the United States, subject to the SOW
jereignty thereof" and under the control
or Congress when the original proceed
lngs in this matter were heard before the
circuit Court of the Territory. Joint
resolution of Annexation.)
Mr.. Justice Bradley held, in the case
of the Mormon Church vs. United States,
1876 U. s.. 1:
That the power of Congress over the
Territories of the United States is gen.
eral and plenaTy arising from and Incl
dental to the right to acquire the terri
tory itself and from the power given
by the Constitution to make all needful
AAASS shiiu icSd respecting the Ter
r-tory or other property belonging to
the United States. -
1T would be absurd to hold that the
United States had power to acquire ter
| ritory and no power to govern it when
acquired
To the same point let me add 1t was
recently decided in the case of Downes
VS.. Bidwell, Isl u. s., 779, quoting with
approval from the decision of Chief JUS
| fire Shou I'm Moo, Mo-
land, Wheaton. 316
THAT the power over the Territories
is vested in Congress without limitation,
and this power has been considered the
foundation upon which the territorial
government rests"
AS to territorial authorities on ques-
lions of the Territories being subject to
Federal provisions see Bradford VS..
TER, 1 Okl., 1865; Walker vs. NJ NJ R.
r. Co, z N. Mex, 282.
In the exercise of the plenary power
conferred upon it. Congress provided by
the Joint Resolution of Annexation that
J all municipal legislation of the Republic
of Hawaii contrary to the Constitution
of the United States" should be repealed
leaving in force all that was not in con-
fiict Herewith. No language could be
palmer. l am constrained to hold that
it was the intention of Congress to ex-
tend the Constitution save as limited by
the other provisions of the Joint Resolu-
ton, over these Islands, and any other
construction would be a straining after
that which does not appear in the Ian
guage of the act.
As was said by the Supreme Court of
1.-THE United States in the recent Insular
cases Downs vs. Bidwell, ISL u. s.,
I7SD:
When the Constitution has been once
formally extended by Congress to the
Territories, neither Congress nor the
! Territorial legislature can enact laws
inconsistent herewith" And If Congress
: cannot control the Constitutional rights
of citizens after they have once been ex-
tended to them in the Territories, how
can the Territories themselves do this
through their Courts otherwise?
See Thompson vs. Utah, ITO U. g.,
where the Court, at page $40, says:
Assuming that the provisions relating
to trials for crime and criminal prose-
cutions apply, to the Territories of the
United States, the next inquiry is.
whether the jury referred to In the orig
inal Constitution and in the Sixth
Amendment thereto is a jury constituted
as 1t was at common law of twelve per-
sons neither more nor less. This
question may be answered in the aff1rma-
tive" Quoting approvingly from Spring
Vile VS.. Thomas, 166 U. s., 787, where the
Court say:
In our opinion the Seventh Amend
ment secured unanimity in finding YER
dict, as an essential feature of trial by
jury in common law cases; and the Act
of Congress could not impart the power
to change the Constitutional rule and
could not be treated as attempting to do
So"
And again, on page 800 (Thompson VS..
Utah, supra), the Court say:
1.-The Constitution of the United States
gave the accused at the time of the COM
mission of the offense right to be tried
by a jury of twelve persons, and made it
impossible to deprive him of his liberty
except by the unanimous verdict of such
jury
See-also, Webster vs. Reid. Ii Haw.,
43T, 400; American Publishing Co VS..
Fisher. I66 U. s.. AGA, 4SS.
The finding of true bill by a Circuit
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 Amend
ments to the Constitution of the United
States, and any person found guilty of
an infamous crime without such indict-
ment by a grand jury is illegally convicr-
ed and should be released on habeas
corpus. eek Parte Balm, 121 U. s.. /: Elk
Parte Parks. SO U. s., Is; Gallon vs. VIII
son. 127 U. s.. 500
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 curtail
the Constitutional rights of the citizen.
The pointing out to the people as the
Supreme Court of the Territory has done
that the Constitution sis not here IN all
its fullness,'' without stating what parts
are and what parts are not here. simply
befogs the question; and the argument of
the Assistant Attorney General of the
! Territory that trial by jury is not one
I of the fundamental propositions of the
Constitution is contrary to the settled
opinions of such illustrious American
iurists 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 civiliz-
alton. 1t has come down to US from
Magma Charta, and in criminal cases
every presumption in favor OF sustain