The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-01-06
FROM ESTEE CUPID HAS A KICK
DOLE's BRIEF FOR NATIONAL
sUPRLYLE COURT.
A Case Probably without Parallel in
The History of the World-AnneXa-
tions Proceedings Reviewed

Attorney General E. p. Dole has pre-
pared his brief in the appeal from
Judge Estee to the United States SUI
preme court in the matter of the ap-
plication of Osaki Mankichi for a writ
Of habeas corpus and he is now waiting
for news that it has been placed on the
calendar after which he will go to
Washington to present the matter In
the course Of lengthy argument Dole
quotes Judge Estee against his own de-
cisiOn. He declares that the status Of
the Hawaiian Islands, as far as the 5th
and 6I, amendments to the constitu-
ton are concerned, is now before the
Supreme Court for the first time, and
that the case at issue has no parallel
in the history of the country, and prob
ably not in the history of the world
The argument says.
"The status of the Hawaiian Islands
with reference to the Fifth and Sixth
Amendments, during the period in
question, now comes before this court
for the first time. The islands were not
one of the United States. They were
not an organized Territory of the Unit
ed States. They were not, like Porto
h.co and the Philippines an acquisi-
ton from another nation by conquest,
purchase or otherwise, of a portion of
its domain. They were an independent
nation, surrendering their sovereignty
and their national property and for an
indefinite period awaiting such form of
government as Congress might give
them. There is no parallel case in the
history of the United States, probably
not in the history of the world.
They had wholesome laws, an en-
| lightened system of jurisprudence, in
dustries, commerce, wealth, civilization
progress These conditions were not of
recent origin. Life and property had
been comparatively secure for more
than a hundred years. Compulsory
education and constitutional govern
ment had existed for nearly sixty years
1T was by no means certain what
form of government would be provide
for them. The United States was then
acquiring huge possessions in the tro-
pics, inhabited by people, for the most
part, incapable of self-government. The
opinion was widespread that colonies
would be created, and that the Hawai-
ian Islands might be one of them.
The annexation was by contract
The understanding and intentions OF
the parties are material If it be urged
that an extra session of the legislature
might have been called to establish g
grand jury system, the answer is ir.
resistible, that such action was wlJnn
the control of the President of the Unit
ed States, that it woulu have involved
long delay and that the result would
have been doubtful"
Dole claims that Judge Estee erred il
taking Jurisdiction after the Territorial
Supreme court had rendered decision
that he erred in declaring that an in
dictment by a Grand jury was neces.
sary in the Osald case, that the vera,
of guilty ought to have been unanimous
and that articles and of the amend
ments to the constitution were in effec
before the Organic Act took effect
There are eight assignments of errors
In the Marshall case Judge Estee refus
ed to take jurisdiction and said: "Tha
f a verdict of nine out of twelve juror
was authorized by the law of Hawaii
which law in respect to this feature was
not repealed until June IA, 1900" Whei
: the Osak case came up, the court tool
a different ground however, holding
that his Marshall decision, Icing in
dlsdemeanor case, was not applicable
Dole quotes the Marshall decision a
much length
The attorney general cites the orde
of the President in May, 1899, ordering
that the election in Hawaii in Septem
Der be dispensed with, as indicating
that the President understood that tn
Hawaiian laws as to prosecutions o
criminals had not been repealed an,
tn. it was therefore unnecessary t,
provide new ones by a legislative ses
sion. The express repeating of the Ha
waiian law by specially extending tn
fifth and sixth amendments, in the Or
ganic Act, is referred to as showing
similar understanding on the part o
: Congress, and Dole says:
Annexation was by contract betweel
two Independent nations. The status o.
the Hawaiian Islands, pending the or
ganizatiOn of the new government 70
them, must be controlled by the con
tract. The intention of the parties II
the pole star of the Interpretation OF
the contract. Such intention must b,
determined by their contemporaneoul
acts and conduct, and by the documen
tary evidence taken as a whole not by
forced construction of single phrase
If we study the contract as a whole in
the light of the conditions that existed
4 is 1t not clear that all parties under
stood that law and order were to b,
4 maintained without interruption? Il
8 it conceivable that annexation coulC
: been consummated on any different un
- derstanding?
ut is universally understood, it is
part of the history of the day that an
neXation was not effected withou
great opposition in the United States
and might have failed but for the Span
ish war. Serious fears were extenslveI!
entertained that those powers whicl
the patriot statesmen who then watch
, ed over the interests of our country
y naaT1naI 30.