The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-08-12
DOLE STATES HIS POSITION ON
APPEAL.
Insular Decisions Apply to Tariff Mat
ters and Do Not Extend the Whole
Constitution.

Attorney General Dole this morning
made a long and elaborate argument
before the Supreme Court on the ha-
beas corpus cases which he took up
from Judge Gears court. The cases
are of great interest to the bar gem
orally and the expected decisions, set
Ting the questions of right of appeal
and the view of the Supreme Court
here as to the extension of the Ameri-
can constitution to Hawaii by the
Newlands resolution, are of great i'm
portance.
The Attorney General presented two
questions to the court, discussing both
at length and with references to many
United States decisions and authori-
ties: First, is the order of discharge
made by the Circuit Court appealable?
Second, were the convictions in viola
ton of the Fifth and Sixth Amend
ments to the Constitution of the United
States?
Dole contended first that the Circuit
Judge erred in discharging the prison
ers, even if they had been illegally con-
victed. He claimed under a number
of decisions that in such a case the
duty of the Judge is to remand the
prisoner for proper trial, instead of
turning him loose. Under the local
Hawaiian code it was claimed that ar
appeal duly taken operates as a stay of
judgment or execution, and that there
fore the prisoner. ought to have been
remanded, or admitted to bail.
The Attorney General, after a long
discussion of authorities, said
IF the order of a circuit JUDGE sit
ting in chambers, is not appealable,
every convicted person in the Terri
tory may apply for discharge on habeas
corpus, to every circuit judge in the
Territory having jurisdictions; and if
they can find a single judge who will
hold that the convictions were illegal
and if the convictions were in fact
legal, the law is nullified and the pris-
ons are empty. Under such circum
stances the public can have no protec-
ton save in lynch law. A man is tried
for murder. A jury finds him guilty.
The rulings of the judge are sustained
by the supreme court The man is SEN
fenced to be hanged. A court of less
resort solemnly decides that there is
no error in the record. The condemn
ed criminal applies for a writ of ha-
beas corpus. A circuit judge, sitting
in chambers, says that the whole pro-
ceedings are void, and orders the pris-
oner to go free. If there is no appeal
the whole machinery of organized So
ciety, the circuit judge excepted, is
powerless for the self preservation
which is the first law of nature.
Section 1433 is as plain and as
sweeping as the English LANGUAGE can
make it. 1t declares that appeals
shall be allowed from all decisions,
judgments, orders or DEGREES of circuit
judges in chambers to the supreme
court, except in cases not relevant to
the question before the court. How is
it possible for language to be palmer?
This statute of later date than Section
1874 says: All decisions, judgments,
orders or DEGREES of circuit judge in
chambers. No possible construction of
the English language can make it read:
All decisions, judgments, orders or
DEGREES of circuit judges in chambers
except orders of discharge on habeas
corpus.
1T is submitted to deny the Terri
tory's appeals is not only to violate the
plain letter of the law but is also to
invest a circuit judge sittir~ in cham
bers with absolute and unapoealable
power to open wide the prison doors,
turn every criminal loose on the COM
munity and to make the punishment
of crime and the protection of the pub
lie impossible. Furthermore, such
power, unless corruptly or intentionally
abused, cannot be restrained even by
impeachment. If the order of a circuit
judge discharging convicted felons on
habeas corpus is not appealable, and
the circuit judge,-as is unquestionably
! true in this case,-acts honestly and In
good faith, however mistaken his views
of the law and however cranky he may
be. he is virtually beyond human con-
troll"
Justice Galbraith here interrupted
"If the legislature has given the Circuit
Court such powers, is it the duty OF
| this court to take them away?" he
asked.
"No-the legislature has not giver
any such powers" said Dole.
After getting through with the ques-
tion of whether there was a right tc
appeal, Dole proceeded to argue as tC
I the legality of the convictions. He
/ held to the local Supreme Court deci'
sion which declared that the constitu'
ton did not follow the flag to Hawai-
and was not extended by the Newlandi
resolution. Extensive quotations were
! made from the Insular decisions anC
Dole said: 81 hace found nothing II
the Insular cases which intimates il
any way that the first ten amendment
to the Constitution of the United State!
came here with the flag. l have foun(
no theory advanced by the majority o
the court which tends to such con
clusion." On the contrary, Dole quot
| which it was claimed indicated thu
opinion that the constitution as
whole did not follow the flag. Th
Attorney General quoted law to tn
effect that the first ten amendment
to the constitution do not apply t
limit the powers of states and declared
that at any rate, If it so desired, nigh
abolish trial by jury altogether.
Dole said
ITO hold that presentments by gram
juries and unanimous Verdicts dno
sanctioned by the laws of the Republl
| of HawaiD were Indispensable durinI
what the Supreme Court of Hawaii
and, in effect, Chief Justice Marshal
and the Supreme Court of the Unite'
States, have termed the TRANSITION
period, is to hold that for about tw
years there was absolutely no lega
machinery in these Islands for the pro
lection of life liberty or property fror
any grade of crime punishable by i'm
prisonment at hard labor exceedin
one year: 1t is to hold that law wa
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