The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-07-24
MANY JAPANESE CDNDY HOPES BCRAM NO TRANSITION PRmHB MILITARY NWS
GEAR CRITICISES THE LOCAL
SUPREME COURT.
Reviews the Peacock, Edwards and
Marshall Decisions-Two Prisoners
Secure Their Liberty From Oahu Jail.

THE MUNICIPAL LEGISLATION
OF THE HAWAIIAN ISLANDS =
NOT INCONSISTENT WITH THIS
JOINT RESOLUTION. NOR CON
TRAHY TO THE CONSTITUTION OF
THE UNITED STATES SHALL
REMAIN IN FORCE"
Under this clause in the Organic Act
OF Hawaii, leaving aside the whole
question of whether the Constitution
follows the flag, Judge Gear this
morning decided i'm the habeas corpus
case of the Japanese Goto Mayo, that
the constitution of the United States
went into effect in Hawaii at once when
the NeWlands Resolution annexed the
Islands. In this he reversed a decision
of the supreme Court of the Territory.
and throughout a lengthy decision he
reviewed and criticised the reasoning of
the. justices Of the Supreme Court here
in their decisions on the subject. Goto
was found guilty by less than twelve
jurors, of a criminal assault and habeas
corpus proceedings were brought by f.
M. Brooks to secure his release, on the
ground that he had not been accorded
the right guaranteed by American con-
stitution, to be adjudged guilty only on
the unanimous verdict of twelve Jurors
Those present i'm the court when the de-
cision was read had the unusual expert
ence OF hearing a Circuit Ju ige criti-
cally reviewing, at time with good
deal of severity, the decisions Vi it's
Appellate Court. Gear preraced his
criticisms by stating that the Hawaiian
supreme Court had rendered two differ
ent decisions, neither expressly over
ruling the other, and that therefore his
court was free to follow ether one
of them" In the Edwards case, Gear
stated, 1t had been held that no one
could be convicted of crime except by
twelve jurors, while in the Marshall
libel case it had been held thai a YER
dict. of nine jurors was legal.
Gear quoted United Stares Attorl ey
General Griggs to the effect that the
Republic of Hawaii ceased TO ,Xist i'm
mediately when the NeWianIs Iesolu-
ton passed. After quoting the Hawai-
ian supreme Courts remark that no one
would seriously contend that annexa-
ton took place before the transfer of
sovereignty in August 9S, Gear quoted
the Attorney General 10 The effect that
it took place at once on the passage of
the Newlands resolution and he re-
marked that there was at least one
who seriously made the contention,
nh<s5 We are nowlaslSed TO regard tho
decision of the Attorney General as not
Serious"
The Hawaiian Supreme Courts deci-
sion in the famous Peacock case was
reviewed al considerable length. AS
to the claim that, under the Terrtorys
contentious there would have been no
laws under which criminals could have
been punished it was declared that the
laws existing would have remained i'm
force, except as to such details as al
lowing convictions by nine jurors. and
that simple direction Of courts to jures
that they must bring in unanimous
verdicts would have sufiiced
THE judgement of the local Supreme
Court has been expressly and em-
repudiated by Attorney Cen
eral Griggs, where he says that with
all due respect to the judgement of the
Supreme Court of Hawaii by the Ian
guage of the Resolution, legislation not
inconsistent with the resolution shall
not remain in force
''rhe reasoning off the Peacock case
and other cases. in which Chief Justice
Frear wrote the opinion of the court
is based principally upon what the
court terms a transition period, and it
is this transition period theory upon
which the later decision in the Marshall
case is based. This theory this court
does not think sound"
Continuing, Judge Gear stated that
the transition period theory had been
put to rest in innocuous desuetude by
the decisions of the United States Su-
preme Court in the well known insular
cases, and all question as to the Pea
cock case and others depending upon it
had been settled by a Court whose de-
cisions were binding upon all other
courts in the land. Gear stated that
the Supreme Court here had followed, !
IN the Peacock and Edwards cases, a
decision since practically overruled. |
and said: IF the case relied upon by our /
overruled in Cross VS.. Har-
'ison,' and our Supreme Court refused
20 follow Cross VS. Harrison, of what |
value now is the reasoning or the con-
'lusion of our Supreme Court in the |
Peacock case or in the first Edward .
'ases? The statement of the case con-
aims the answer, and IL follows as the .
hight the day that the Supreme Court .
If the Territory of Hawaii has been
,Verruled in its reasoning and conclu-
zion based upon a case which has been
,verruled by the Supreme Court of the .
United States.
I'm fact the learned Attorney Gen.
raj Dole seems to concede by his ar
;ument, and in fact expressly conceded
o this Court in answer to a question by
he Court. that this Court should not
'ay any attention to the Peacock case"
Judge Gear entered into lengthy re-
lew of the Insular case decisions, in
which the Supreme Court at Washing
on discussed anneXations of different
pieces of territory every since the
United States became a nation, the de-
lsions holding all along the line that
he there was no authority for stating
hat any territory, after the transfer
# sovereignty remains for any pur-
'oses a foreign country.
I'm the matter Of the. meaning Of the |
ll-important clause of the Newlands
esolution, Judge Gear discussed the
lcal Supreme Courts ideas, as CON
rasted with the Insular decision as
OllOWs
Right here It suggests itself to the
nind of the court how differently have |
he Supreme Court of the Republic of
laval reasoned, They say i'm con-
truing the plain meaning Of the. words
hat the municipal laws not contrary to
he Constitution shall remain i'm force
hat If they hold that laws contrary
hereto are abrogated crime could not
c suppressed because there is no pro-
ision for a grand jury or unanimous
erdicts, and there Is no machinery for
he collection of duties under United
Continued to page eight.)