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

WAS VOID
Continued Il ON Page ~

I
Of Congress annexing the Hawaiian Isl
sud-. passed by Congress July 9TH. 1895.
pr,roribcs among other things that.
THE Hawaiian Islands and their de-
pend ncicS are hereby annexed
% g part OF the territory OF the United
states. and are subject 10 the sovereign
dominion thereof. and all and singular,
the property aud rights hereinbefore
mentioned are vested in the United
States OF America
After providing for the disposition of
the revenues of the Islands. ana for IN,
future enactment 10y Congress OF special
public land laws, the Resolution then
proscrlbes:
=" Tn, municipal legislation OF
the Hawaiian Islands not incon-
s:stent with this Resolution, nor con
trary to the Constitution of the United
| States, shall remain in force
until the Congress of the United States
shan otherwis, determine" tVol 30. L.
5. stats, 75O)
! Municipal law Is defined to be:
'''ehe rule OF law by which IA particu-
p lar district community or nation is gov
81 a"d" q Blnckstones Comm, a: /
kent's Comm, Az: 2 Burrell's Law Die
tionary, 2l5)
The Resolution of Annexation of the
Hawaiian Islands as passed by Con-
as 4 part of the territory of the United
States" ana are Subject to the SOW
creign dominion thereof" and on August
18th, 1898, the American flag was raised
on the Islands. 1t matters not technically
whether the Constitution followed flag or
I followed American sovereignty here, for
with American sovereignty came nl OF
\ American law not especially reserved by
I the Joint Resolution of Annexation. 1t
yxish aN-tn hat fyp .r,ip
ties could not exist here at the same
time ana when the Resolution of Annex
alton provided that "the municipal leHiS-
lation Of the Hawaiian Islands not In
Consistent with this JOINT Resolution nor
contrary to the Constitution of the Unit
ed Stgtes should remain in force" II
meant that all municipal legislative en-
actmsnts of the Republic of Hawaii
contrary thereto should be abrogated.
No reservation was made in the Joint
Resolution of Articles V, VI and VII OF
the Amendments to, the Constitution, re-
larlrE TO indictments or trial by jury, in
common law or criminal cases 1t show
ed that American Sovereignty not only
prevailed here, hut that nothing could be
done or permitted here contrary to the
Constitution of he United States except
ing as expressly provided in the Joint
Resolution of Annexation. This annex
alton was not as claimed by the Supreme
Court Of the Territory in the case of
Peacock VS.. Republic of Hawaii Q2 Haw.,
SS), In n transition or inChoate state, but
was complete, and 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, AZ It Sc
cures to all the equal protection of life,
liberty and property which are funda-
mental rights, and chief among which IS
the trial by jury. .u..
II appears that the petitioner was In
dictod for the crime of murder under an
indictment presented by the prosecuting
officer of the Territory, and found by the
Circuit Judge OF the Circuit Court under
the provisions Of Section GIG Of the Penal
Laws Of 1893 Of the Republic. of Hawaii,
which reads as follows.
o., The necessary bills of Indictment shall
be prepared by a legal prosecuting officer
and be duly presented to the presiding
Judge OF the. Court before the arraign-
ment of the accused. and such Judge
shall, after examination, certify upon
each bill of Indictment. whether he finds
the same "a true bill or not
The petitioner was then tried upon the
said indictment and n verdict of convic-
ton Of manslaughter was rendered by
nine out OF the twelve jurors who heard
the case, In accordance with Section i3S5
Of the Civil Laws of 1897 of the Repub-
lie of Hawaii. which prescribes as fol.
lows: o.. :
NO Jury. for the trial OF any case, civil
or criminal. shall he less than twelve In
number but when nine of such jury shall
agree upon a verdict, they may render
the same, and such verdict shall be as
valid and binding upon the parties as II
rendered by all twelve"
The questions Thea 1"escptei arc.
Were the PROVISIONS Of the Penal end
Civil Laws VI the Republic Of Hawaii
under which this petitioner was indicted,
tried and convicted. municipal ieg:lla.
ticn contrary. TO the constitution of the
United States? .O., n other words
Could a person In the Territory of Ha-
waii. between the IN day os Jriy. 1928.
and the 18th lay Of June. 1917. when The
Act OF Government of the Territory cf
Hawaii wen: into effect. h. legally tried
for an Infamous crime without having
been first indicted by a grand jury as
required by Article of the Amendments
to the Constitution Of the United States.
or convicted by less than unanimous
verdict of twelve Jurors. as provided by
Articles VI and VII of said Amend.
ments?
Article V of the Constitution Of the
United States reads. In part, as follows:
mo person shall be held to answer for
a capital or otherwise infamous crime
unless on a presentment or Indictment
of grand jury"
Even II this constitutional provision
had never been construed the language
Is too plain for doubt.
1t has been held by the Supreme Court
OF the United States that the Fifth and
Sixth Amendments to the Constitution
were not designed as limits upon the
State governments in reference TO their
own citizens. but are only restrictions
upon the Federal power (Barron va.
baltimore. Peters. N3: Thorington W.
Montgomery. III u. s.. ls0)
The Hawaiian Islands were territory
Of the United States. subject TO the SOW.
ereignty thereof" and under the control
OF Congress when the original proceed
ings in this matter were heard before the
Circuit Court of the Territory. Goint
Resolution OF Annexation.)
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