The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-04-29
HAWAIIAN TIME
OF TRANSITION
UNITED STATES SOLICITOR GEN.
ERAL OPPOSES HUMPHREYS
-ESTEE RULING.
FILES A STRONG BRIEF IN OSAKI
MANKICHI CASE
Supports The Position Taken in the
Habeas Corpus Cases BY Attorney
General Dole.

Habeas Corpus Cases BY Attorney
General Dole.
Attorney General Dole received from
! Washington this morning COPIES of a
brief filed in the United States Supreme
fCOurt by Solicitor General John X
/ Richards, in the matter of the appeal
of Osaki ManHchi The argument Of
! the solicitor general is a learned dis
/ cussiOn Of the law of Hawaiis transit
/ tiOn period, following in many respects
the line of argument contained in the
briefs and printed arguments of the
Hawaiian attorney general 1t strongly
! opposes the rulings of Judges Gear
/ Humphreys and later of Judge Estee
/ I'm holding that the Newlauds resolution
extended the United States grand and
| petit jury system to Hawaii The de-
/ CisiOn Of the Supreme court of Hawaii
! In the Republic VS.. Edwards is quoted
many times by the United States son-
/ cttor general and ne closes with an
| argument that the United States Su-
| preme Court ought to give weight 10
! the views of the Supreme court of Ha-
wati. The argument, after describing
! the history Of the case, contains the
| following;
"A petition for a writ of habeas cor
/ pus was then presented in behalf of
/
! he granted, having apparently changed
! the views which he intimated in the
! Marshall case. From his decision an
appeal has been taken by the Territory
| to this court.
/ 1T is urged that the use of the
qualifying words not contrary to the
! Constitution of the United States, af-
! ter the words the municipal legislation
! of the Hawaiian Islands carried the
! Constitution into the islands and rem
| dered void and imperative every pro-
/ vision of the law of the Hawaiian ISL
ands contrary to any of it's limitations
! If this be true then the qualifying
clause nulli1ed the express and positive
! provision. The Hawaiian method of
/ indtcung and cOnVicting criminals was
! an integral part of the criminal law of
/ the islands. The resolution provided
| that the existing municipal legislation
J should remain in force until Congress
should otherwise determine. There was
! no provision for modifying or amending
! IL. The transfer took place after the
/ legislature had adjourned and, by sub
! sequent Executive order of President
Mckinley, the election Of another legis-
lature was indefinitely postponed. To
/ strike down the law of criminal proce-
| dure was to deprive the Government Of
/ Hawaii of the power to preserve order
! and protect persons and property. 1t is
/ not to be presumed that either party
/ to the contract of cession intended this
If, by the resolution Of annexation,
| the Constitution was extended by the
! islands, and our grand jury and petit
/ jury system put in force there, why
| were provisions inaugurating our grand
| jury and petit jury system inserted in
| the organic act? All these provisions
look to the future. 1t is obvious that
| Congress, in making them, acted in the
1,91f
( peCt to indictments and VerdiCtS had
continued in force during the transit
ton period and would remain operative
| until the organic act should take effect.
THAT the right to be indicted by a
grand jury and be tried by a petit jury
| is not fundamental, that the fifth and
sixth amendments enforcing this right
apply only to the Federal courts and
that a citizen of the United States i'm a
criminal prosecution in a State court
may be deprived of his life, liberty, or
property by due process of law, with
out Indictment by a grand jury and
without unanimity in the verdict of a
petit jury, is the established doctrine OF
| this court.
The fifth and sixth amendments ap-
ply only to the courts of the United
States. They contemplate organized
/ Federal judicial districts. The courts
of Hawaii during the transition period
were not courts of the United States.
They were the courts of the Republic
of Hawaii, continued of necessity until
/ Congress could organize the islands and
| establish Federal districts and Federal
/ courts, The judicial powers which by
express provision We're to be exercised
/ during the transition period were the
/ existing judicial powers Of the Hawaii
ian courts. These judicial powers did
/ not include the power to impanel grand
/ juries or to subpoena witnesses before
| grand juries or to try criminals by a
! petit jury after the manner required in
Federal courts. There was no Hawai-
ian law for this and therefore no ju-
dicial power. The judicial power which
| was continued under the resolution was
the power to accuse and try and convict
in the manner provided by the Hawai-
. ian law and by that alone; and there
was no authority to change or modify
that law, for the resolution expressly
provided that the municipal legislation
of the islands should remain in force
until Congress should otherwise deter
mine.
FINALLY, let me point out that among
| the judicial power exercised under the
] Republic of Hawaii and to be exercised
/ during the transition period was the
1 power i'm the supreme court of the ISL
ands to pass finally upon all disputed
! questions Of criminal procedure, This
court was the only court which could
decide such questions at that time. The
! question raised in the case at bar was
! unanimously determined by 1t in favor
of the government While l do not
pretend to say that this decision is
binding upon this court, / do submit
! that under the peculiar circumstances,
weight ought to be given to the views
OF the supreme court of Hawaii upon
| the matter.
! JOHN X. RICHARDS
Solicitor General"
! April u, 1902"