The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-08-16
BRIEF FOR TIE PRISONERS
REPLY TO ATTORNEY GENERAL
DOLE
The Supreme Court Given the Last
Word i'm the Habeas Corpus and Con-
stitution Problems.

In the Supreme Court today Attor-
neys George A. Davis and +. M. Brooks
flied their brief in behalf of the prison.
ers recently released on habeas corpus.
1t is a long document, pillng up United
States authorities and decisions in great
numbers, and reviewing the much dis
cussed habeas corpus and constitution
and nag problems. 1t contains the fol-
lowing:
"The Legislature has provided no
procedure whereby an appeal can be
taken from an order of a Circuit Court
dlscnarging a prisoner upon habeas
corpus.
1T is also further provided by Sec
ton 1914 of the Civil Laws that no per-
son who has been discharged upon
writ of haDeas corpus snail be again
imprisoned or restrained for the same
cause unless he shall be indicted there
for and convicted thereof or committed
for want of bail by some court of rec
ord having jurisdiction in the cause.
how Juen in the face of this statute
can the judgment of the Circuit Judge
dIschargIng Lne prisoner from CUSTODY
be suspended by any order of this
Appellate Court?
"A discharge under a writ of habeas
corpus by a court of competent jurts-
ty, is final and conclusive, and an ar
rest under the same charge is unIaw-
full.
1T is further submitted that by a
resolution passed by Congress and the
Senate of me United states jointly
winch resolution was signed by the
President of the United states on the
9th day of july, 1888, all rights of SOW
ereignty of whatsoever kind in and
over the hawaiian Islands were ceued
and transferred to the United States of
America which cession was accepted,
ratified and confirmed by the Govern
ment of the Republic of Hawaii, and
that after the signing of this resolu
ton by the President of the United
States, the Hawaiian Islands became
annexed and a part of the Territory
of the United States and subject to the
sovereign dominion thereof.
The crimes and offences which these
defendants committed were committed
in United States territory. They were
charged with capital and infamous
crimes and bills of indictment were pre-
ferred and true bills were found there
on by the judges of the Circuit Court,
which it was claimed was without au-
thority of law and jurisdiction, and in
conIravenuon of Article 5 of the
Amendment to the Constitution of the
United States.
1.-The case of ex parte Bane 131 U. S.,
page l oVerrules Hurtardo VS.. The
People and expressly decides that a
prisoner who was convicted and sem
fenced, and who was confined without
the indictment of a Grand Jury, was
illegally confined and is entitled to be
discharged. There can be no fnistaking
this decision; it is far reaching.
Some of these defendants were con-
Victed by less than twelve jurors. These
convictions and sentences were abso-
lutely void.
See the case of Thompson VS.. The
State of Utah 10th U. S., page 344. The
Supreme Court of the United States de-
cided in this case that the jury referred
to in the Federal Constitution, and in
the 9th amendment thereto, was jury
composed as it was at common law, of
twelve persons neither more nor less,
and that the State of Utah did not ac-
quire upon its admission into the Union,
the power to provide in respect to fe-
lonies committed within its limits. while
it was a Territory, that they should
betried otherwise, than by such a jury,
and as provided by the Federal Con-
Stitution.
"tThey also decided that it is not in
the power of a person accused of felony,
ny COiSGHl GAp lGSoly SlNCl VI W
lence to authorize jury of only eight
persons to pass upon his quilt instead
of complete jury of twelve persons.
Says the Supreme Court of the Unit
ed States:
IF one under trial for a felo-y the
punishment OF which is confinement in
the penitentiary, could not leoaiv con-
sent that the trial proceed in his alb
sence, still less could be consent to be
l. 81 fy 1xr t,.i1N oil
not authorized to detain him by law to
ascertain his guilt.
I'm our opinion the provision of the
Constitution of Utah providing for
trial in courts of general jurisdiction of
criminal cases, not capital, by jury
composed of eight persons is eX post
factO, and it is applicable to felontes
committed before the Territory became
State, because in respect to such
crimes, the Constitution of the United
States 0iVes the accused at the time of
the commission of his offense, the right
to be tried by jury of twelve persons,
and makes it impossible to deprive him
of his liberty except on the unanimous
verdict of such jury.
"On page &c of the Attorney Generals
brief he uses this language:
"If those possessions are inhabited by
alien races differing from us In religion,
custom, laws, methods of trade and
modes of thought the means of govern
ment and justice, according to the An
glo Saxon principles, may for time be
impossible, and the question at once
arises whether large concession ought
not to be made for the time that ul-
timately our own theories may be car
ried out and the blessings of free
government under the Constitution eX-
tend to them. We decline to hold there
is anything in the Constitution to for
bid such action.
This reasoning does not apply to Ha
wall, for there are no heather in these
Islands at the present time. The bible
and the altar are and were as much
adhered to and respected at the time
of the passage of the resolution, in Ha-
wall, as in the State of California,
Our laws and customs were the same.
The methods of taxation were the same.
The administration of Government was
carried on and it was the boast of those
in power that they followed the Gov
eminent of the United States closely.