The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-08-27
PERRY'S QUALIFICATION
WHY HE SAT- IN HABEAs CORPUS
CASES.
Defendants Claims Would Disqualify
Galbraith and Gear Too-Gears
Hearing Of Pahias Appeal.

The question of the disqualification
of Justice Perry to sit in the habeas
corpus cases was one of the interesting
issues in yesterdays decision of the
Supreme court. The decision in the
four habeas corpus cases following that
of All Oi discussed the matter at length
taking the ground that the habeas cor
pus matters were new civil cases and
not appeals from cases in which Perry
had sat as circuit judge. The deci-
sion referred to Gears hearing the ha-
beas corpus application of Pahlu. after
committing him, and to decisions by
Galbraith on the points at issue. 1t
was as follows:
"As remarked in that case, counsel
for the petitioners have since the hear
ing, called our attention to the fact
that Mr.. Justice Perry, now a member
of this court, was the Circuit Judge who
found the indictments, presided at the
trials and pronounced the sentences in
the criminal cases under the sentences
in which the petitioners were held and
suggested that he is disqualified from
sitting on these appeals in the habeas
corpus cases by reason of the provision
in Section "a of the Organic Act that,
No judge shall sit on an appeal, or new
trial, in any case, in which he may
have given a previous judgment" This
provision with many others in the Or
ganic Act was taken from the Consti-
tuition of the Republic of Hawaii.
"Of course, these hearings are not
new trials in the criminal cases in
which the petitioners were convicted.
1t is equally true that they are no, APP
peals in those cases. They are appeals
in habeas corpus cases, which were
heard by different Circuit Judge. The
habeas corpus cases when before the
Circuit Judge were not new trials or
appeals in the criminal cases. That
Judge could not grant new trials in
those particular cases or entertain APP
peals in any cases of that character.
Much less are the appeals in this Court
in the habeas corpus cases, appeals in
those criminal cases. Not only are
these different cases, but they are diff
ferent in kind. They are civil cases to
enforce the civil right of personal lib
erty. The others were criminal cases to
inquire into alleged criminal acts. AS
the Supreme Court of the United States
said, per Mr.. Chief Justice Waite, in
Elk parte Tom Tong, 10S U. -. $50, The
writ OF habeas corpus is the remedy
whwich the law gives for the enforce
ment of the civil right of personal lib
erty. Resort to it sometimes becomes
necessary, because of what is done to
enforce laws for the punishment of
crimes, but the judicial proceeding I'M
der it is not to enquire into the criminal
act which is complained of, but into the
right to liberty Notwithstanding the act
Proceedings to enforce civil rights are
civil proceedings, and proceedings for
the punishment of crimes are criminal
proceedings. In the present case the
petitioner is held under criminal pro-
cess. The prosecution against him is
criminal process, but the writ of ha-
beas corpus which he has obtained is
not proceeding in that prosecution. On
the contrary, it is a new suit brought
by him to enforce a civil right, which
he claims, as against those who are
holding him in custody, under the cri-
minal process. If he fails to establish
his right to his liberty, he may be de-
tanned for trial for the offence but if he
succeeds he must be discharged from
custody. The proceeding is one insti-
tuted by himself for his liberty, not by
the government to punish him for his
crime. This petitioner claims that the
Constitution and a treaty of the United
States give him the right to his liberty,
Notwithstanding the charge that has
been made against him, and he has OBJ
tanned judicial process to enforce that
right. Such a proceeding on his part
is, in our opinion, a civil proceeding,
Notwithstanding his object is. by means
of it, to get released from custody I'M
der a criminal prosecution See also
Kurtz Moffitt lis u. S. 4S7, 494;
Farnsworth V. Montana, 129 U. S. 104
113; Cross V. Burks, LAG U. S. so, So;
Henderson V. James, So Oh. st 242. So
different, indeed, are the two classes
of cases that habeas corpus lies to lib
crate one whose Imprisonment is un-
lawful for the want of an indictment
by grand jury even when no appeal
or writ of error lies in a criminal case
Elk parte Wilson. ia U. S. All, 421.
THE provision of Section 81 now in
Voked applies to only ID an appeal or
(2) new trial in (S) the same case in
which the judge has given a previous
judgment The appeal before this court
in each habeas corpus case is one re-
move farther from the criminal case
in which Judge Perry sat than the ORR
ginal habeas corpus case before Circuit
Judge Gear was. Consequently if Mr..
Justice Perry could not sit on this APP
peal he could not sit in an original ha-
beas corpus case brought to obtain the
release of prisoned sentenced by him
which would be absurd If he could
not do that 1t would be because such
a habeas corpus case would be the same
case as, and either an appeal or new
trial in the criminal case. which also is
absurd. Who ever heard ii advanced
that Judge could not sit in a habeas
corpus case brought to secure the re-
lease or a prisoner though sentenced !
by himself? This was done during the
present month by the very Circuit
Judge from whose decisions these ap-
peals are taken. In the case of In re /
Pahia, now before us and about to be .
decided. 1t appears that Judge Gear sat /
In a habeas corpus case brought to OBJ
tain the release of person, not mere
ly over whose case he had presided but |
whom he himself had convicted as well
as sentenced. This was of course per-
fectly proper. 1t was a different case
and neither an appeal nor a new trial.
THE maxim that no man shall be a
Judge in his own cause, of course has
no application to this case. The ques-
ion is not whether Judge Perry was
light or Judge Gear wrong, but whe-
her the petitioners are unlawfully held.
Judge Perry is not a party in these
,ases. They are not his own causes"
they are the causes of the petitioners.
Il has been most common occurrence
n both England and the United States