The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-12

that is ancient in use and Of universal application Anglo
Saxon communities There is also maxim of law regarding
judicial action which may have important bearing upon the
constitutional validity of judgments in No
ought be Judge in his cause and SO lnezbe and SO
manifesty Just this rule that Lord Coke has laid 1t down
that even an parliament made against natural equity
as to make man Judge his case void in ITSELF for
iuu matuue su in,muablia, and they are teges Rgum
'This maxim applies in all where judicial functions
be exercised and excludes all who are Interested how
ever remotely from taking part their exercise 1t not left
to discretion of the Judge his of decency to
decide whether he shall mot all his subject
to this absolute mtaon and when his rights
tion he has authority determine the cause Cooley
Const Linn. p SOC. Again the distinguished author
says "The Judge acting such not simply proceeding
egulary but he is acting without jurisdiction And one
of the judges constituting court disqualified on this ground
the Judgment will be void, though the number
may concured in the result reckoning the interested
party" Id P. 500.
Mr. Justice Bell speaking the Supreme Court of New
Hampshire sad "The perfect integrity that be in
judges hndrance why the parties who have de
pending before he challenge hem except against
Them and why they ought not of their accord to abstain
from hearing which they may have interest,"
where there may be ground for sspectng them and
they themselves obliged declare the which
render them suspected it the parties Ignorant OF them
Noses Julian, As N. H. p. 50.
Has the Territory the right to appeal from the order of the
circuit Judge dschargng the petoner2 The majority opinion
says Some hold that appeal writ of lies in
of this kind under general statute others that of
this kind be expressly mentioned" submit that the
courts that hold that appeals be taken habeas corpus
counted
Of hand and that the overwhelming weight of authority
squarey against such holding The general rule is thus
stated "a Judgment habea corpus proceedings either dis
charging the prisoner remanding him. cannot be reviewed
appeal writ of unless authorized by statute Church
Habeas Corpus 2nd ed Sec 596a The fact admitted in
the opinion that Statutes have been enacted in England
Canada of the states and by the Congress of the United
States allowing appeals habeas corpus cases. confma-
ton of the correctness the above rule and absolute reuta
ton Of the claim that appeal be taken in such under
statute allowing appeals generally and that appeal in such
no o1op Soo Cxys1I
The citations of from the United States Supreme Court
scarcely be in point the issues presented in the
bar. The language of the statute permitting appeals the
United States Circuit Court follows: From the final dec
sion of any court justice judge inferior to the Circuit Court
upon application for writ of habea corpus upon such
writ when issued appeal be taken to the Circuit Court
for the district in which the is heard: (Sec
763 o. S. Revised sates Section 7e4 provides for appeal
from the final decision of the Circuit Court the Supreme
Court of the United States in certain and the following
section provides for the disposition the prisoner pending
appeal and the method sor sending up the appellate
tribunal transcript of the petition writ of habeas corpus
turn thereto, and other proceedings
The majority find that section Civil Laws and
1888 Civil Laws construed together give the right appeal
habeas corpus this Territory Section 1145 reads in
part he Judges of the several Circuit Courts shall have power
in Chambers within their respective Jurisdictions but subject
appeal the Circuit and Supreme Courts according law
follows Then follows twelve subdivisions enumerang sub
ects which Circuit judges may take jurisdiction Cham
bers The eighth subdivision Io issue wrs of habeas
corpus according law From the of the phrase Subject
appeal to the Circuit and Supreme Courts in said section
might be inferred that the Legislature intended provide for
appeals habeas corpus but that the
of intention to do thing doing the thing The
legislature presumed have known that time section
1145 enacted that what is published chapter
Civil Laws part of the law of the Islands, that this
chapter composed OF sections all relating habeas
corpus and that word found therein expressive
intention purpose that appeals allowable such
With these lights before it the Legislature made no specific pro
for appeals habeas corpus No provision
made for the disposition of the prisoner pending the appeal
where he discharged by the Circuit Judge No pro-
made for bringing the record before the appellate
court So it that the majority really have only section
1888 allowing appeals generally which to base the conclusion
that appeals lie in these This not sufficient
As to the practice in this Jurisdiction giving the right to
appeal do not think the claim well founded The citation of
the cases from the earlier Hawaiian reports not tend to
this claim for the that during part of the
SIXTY years OF the judicial history of these islands, appeals in
corpus cases allowed by and of
the funn cd Il