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

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and extreme cases will it review unor
naoeas corpus the judgments or vardfo.s
round in the highest Territorial Court.
OF the territory" And this Court ia et;iI
Oh the same opinion.
Inc question now presented Is Is this
an exceptional case? am comnelled 70
peieye that it is. Whatever the inten-
Lon OF the local Territorial Courts their
, uecislons upon this question are an at
| .ach upon the Constitutional rights of
the citizen affecting life and liberty.
which are thereby made insecure.
III view of all the circumstances. there
lore. l think 1t would be in furtherance
Vi pubic justice for me to exercise nv
discretion by assuming jurisdiction in
this proceeding. I shall therefore con-
sider the case under the writ.
! The right of appeal in habeas corpus
cases from the Territorial Circuit to the
Territorial Supreme Court this Court
VIII not consider. That is a matter en-
tirely within the province of the Terri
torial Courts.
so also as to the objections submitted
In relation to Mr.. Justice Perry sitting
as one of the Appellate Judges in this
case, originally tried by him while Cir
cult Judge. That is largely a matter of
discretion on his part, and / will not
i assume to question the wisdom of such
discretion.
ca Petitioner claims that he is in Gus
tody In violation of the Constitution OF
the United States. in that he was tried
and convicted of an Infamous crime
without an indictment by Grand Jury,
and by verdict of less than twelve
jurors, 1. e., by nine of the twelve jurors.
The specific Articles of the Constitution
claimed to have been violated by such
conviction are Articles v, VI and VII of
the Amendments thereto.
There is no question as to the infamous
character of the crime with which he
was charged.
The Joint Resolution of both Houses
of Congress anneXing the Hawaiian ISL
ands, passed by Congress July 9TH, 1898.
prescribes among other things that:
1.-THE Hawaiian Islands and their de-
Tendencies are hereby annexed
as a part of the territory of the United
States, and are subject to the sovereign
dominion thereof, and all and singular,
the property and rights hereinbefore
mentioned are vested in the United
States of America"
After providing for the disposition of
the revenues of the Islands, and for the
future enactment by Congress of special
public land laws, the Resolution then
prescribes:
e "* ; The 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
shall otherwise determine" (Vol. &c. U.
S. Stats, 750.)
j Municipal law is defined to be:
1.-The rule of law by which a particu-
lar district, community nation is gov
erned" q Blackstone's Comm, "A; l
Kent's Comm, 447; Burrells Law Die
tionary. 215.)
The Resolution of Annexation of the
Hawaiian Islands as passed by Con-
gress. prescribes that they are annexed
as part of the territory of the United
States" and are Subject to the SOW
ereign dominion thereof and on August
12th 1898, the American flag was raised
on the Islands. 1t matters not technically
whether the Constitution followed flag or
followed American sovereignty here, for
with American sovereignty came all of
American law not especially reserved by
the Joint Resolution of Annexation. 1t
goes without saying that two sovereign
ties could not exist here at the same
time and when the Resolution of Annex
alton provided that "the municipal legis-
lation of the Hawaiian Islands not in
, consistent with this Joint Resolution nor
contrary to the Constitution of the Unit
, ed States should remain in force" 1t
meant that all municipal legislative en-
actments 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-
lating to indictnens or trial by jury, In
common law or criminal cases 1t show
ed that American sovereignty not only
prevailed here. but 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.,
S3) in a 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 as 1t 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.
1t appears that the petitioner was in
dIcted for the crime of murder under an
indictment presented by the prosecuting
officer of the Territory. and found by the
the provisions of Section 616 of the Penal
Laws of 1898 of the Republic of Hawaii,
which reads as follows:
THE necessary bills of Indictment shall
be prepared by 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 nnds
mo n frtYea hill or not !"
The petitioner was then tried upon the
said Indictment and verdict of conyic-
ton of manslaughter was rendered py
nine out of the twelve jurors who heard
the case. in accordance with Section iSis
Of the Civil Laws of 1897 of the Repub-
lie of Hawaii, which prescribes as fol-
lows:
mo Jury. for the trial of any case. civil
or criminal. shall be less than twelve In
number. but when nine of such jury shall
agree upon verdict they may render
the same. and such verdict snail De as
he nartieS III