The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-27
CONVICT
WAS LEGAL
Continued from Page 81

Continued from Page 81 i
Turning now to the insular cases, We I
find nothing in the opinions of the ma
iority that weakens the effect of the
foregoing reasoning. On the contrary,
there are many passages that seem to
confirm 1t.
A further ground for believing that
Congress did not intend to fully ex-
tend the constitution here or fully in
corporate the islands as an integral
part of the United States is the con-
struction put upon that resolution by /
Congress itself as shown by the or
ganic act of April 80, 1900. 1t was then /
| and not until then that Congress felt !
| itself in position to determine the
| status of Hawaii. 1t was not until
| then that Congress provided a govern !
ment for these Islands; that 1t deter
| mined the status of their people; and
| that it declared, in its usual way or
| expressing such an intention, that the
constitution and laws of the United
States not locally inapplicable should
with certain exceptions. have the same
force and effect in those Islands as
elsewhere in the United States. 1t
then declared that. mo person shall
be convicted in any criminal case eX-
cept by unanimous verdict of the
Jury and made some provisions ror
grand juries as if indictments by
grand juries and unanimity of verdicts
by petty juries had not previously been
: required.
1t is we'll known that criminals were
recently, and we believe still are pros
y ecuted in both Porto Rico tsee EN
parte Baez,N Ia u. s., 37S) and the
f Philippines without indictments by
/ grand juries or trials by petty juries.
If we remember rightly the President
in his directions to the Philippine Com
mission omitted reference to these
matters, though he enjoined the recos-
milton of what we have referred TO
!. above as the fundamental rights.
= The order appealed from is reversed
and the prisoners remanded to Gus
tody.
A PERRY.
George A. Davis and F. NJ. Brooks
for the petitioner.
Attorney General f. P. Dole FOR the
|, respondent.
JUDGE GALBRAITH DIssENTs.
d Judge Galbrafth in his dissentins
IF opinion calls the habeas corpus pro
d ceedings most extraordinary AM
" lacking in some of the necessary ele
he ments to entitle them to be called 'lega
a. proceedings
te Judge GaIbraith holds that Judg
Perry is disqualified, having signed tn
Indictment of the prisoners whose ap
peals are here considered, and as a
cases were submitted as one, the
should be decided as one He hold
further that they are not new cases, blu
Ae the same upon which the appeal is TAX
en- from Judge Perry. and further tina
u no man shall be a judge of his ow
u cause Referring to the disqualifica
ton he says:
The majority have decided that thi
member of the court is not disqual1he'
but instead of rendering the decisfo
in the cases as argued and submitted
have proceeded to divide the case
r. separating that of All OF. at who's
- trial the justice did not preside, an
rendered the opinion in that case to
followed as a precedent In the othe
cases and to be filed, of course, 20
the same day" When it is remembers
:, that the identical question is raised
Il the cases in which the justice sat {
circuit judge and passed judgment I
N the one in which his associate entert
10 / Judgment does any good reason al
:, pear for this shuffling and separatlr
II the cases? To ask this question is
ms answer it, AS an acrobatic perform
my admiration. but as the studied a
of an appellate court in cases invol
ing life and liberty, | am compeilt
to enter an earnest protest against
,R Was the objection to the qualif1c
. ton of the justice well taken? To n
il does not seem debatable QueStio
He further argues that the Terrific
has no right of appeal from the ord
of the court discharging a prisoner
habeas corpus. and that in any eve
I the appeal was not properly presente
iii and that no record of the proceeding
iii the lower court was before the 5
III preme Court. Then he goes on to sd
l am thoroughly convinced that t
majority have no power to render
led valid Judgment in this case for t
lit, reasons given, to wit % that one
of the majority is disqualified; (2) tn
of no appeal lies in habeas corpus case
-, 90 that there is no record before {
court on which a valid judgment C;
Oh be based. Holding this view [ C;
nd scarcely treat the majority opinion
at "a decision of the court, but consider
er. as a we'll written dissertation on an !
~ teresting question of law l will s;
- that l have an absolute answer
oH' every argument therein advanced, tn
M is I am of different opinion. t
md out in the opinion of the court in t
aid case of Elk parte Edwards, ante, pag
- to 40, and it will be unnecessary
reiterate them here.
.eu am not unrnindful of the fact tn
hu. in forming this opinion it was nece
No. sary to reach another conclusion
'es volved in the determination, that
that those who We're responsible t
the administration of the law in the
Islands between July l. 1898 and Ju
u IA, 1900, committed grave errors
charging. trying and convicting pc
. sons accused. of infamous crimes in
. manner unknown to the constitute
and laws of the United States. q
willing to concede to them an hone
purpose and unanimity of belief. I
majority say, The view that the co
stitution did extend here in all its III
ness whatever might be true of sol
of its provisions. seems to have n
the the support of two former memDe
rec ard two present members of the cou
an ana OF a former circuit Judge and O
member of the bar and to some