The Hawaiian gazette., 1902-04-25
ARGUMENTS
ALMOST IN
Smith Case Will
Be Submitted
Today.
ntLon w,ane.dar.. dallyl

when the Supreme Court adjourned
f1r The DAY yesterday afternoon George
Davis was in the midst of his argument
iu the smith contempt case. lie said at
adjournment that he would st'll require
two hours time. 50 that the case VIII
hardly be submitted 81 the court be-
fore this afternoon.
Dir. Lewis opened the case with the
reading of the petition, and Mr.. An
drcws then presented the amendment,
notice of which had been given Mon
day. MIR. Davis objected to the amend
ment as unusual. and MIR. Andrews re-
piled that he had offered IT simply to
set out more specifically what the
original petition contained, and was
willing to withdraw 1t If the court held
the broad allegation of irregularity to
be sufficient
After consultation with the two Jus
tees, Chief Justice Frear announced
THE court dsallows the amendment.
on the ground that it is unnecessary"
BY consent OF counsel, Mr.. Smith was
excused from attendance at the argu
ment. MIR. Andrews said he had no OBJ
lection and Mr.. Davis did not after he
thought over the matter awhile. He
II he wants to write editorials. | dont
want to keep him from his labors."
Mr. Lewis opened the argument. He
said that the case revolved upon two
very important points, both necessary
to the welfare of any country: on the
one hand the power of the court to
punish for contempt as limited by the
Legislature which created ii, and on the
other hand the right granted by the
Constitution Of the United States to
every citizen to think, write, act and
talk freely.
The right of the great organs of the
press to comment upon commercial
legislative and judicial actions was I'M
denied in American Jurisprudence. This
question involved four provisions--first,
have the Circuit Court Judges the right
| to punish for constructive contempt?
Second, the publication in question re-
| ferred to closed case, and therefore
| was not in contempt or an obstruction
| of justice. Third, that the defendant
had purged himself of the contempt in
his answer, and fourth, that the pro-
ceedings We're Illegal in that they were
held before an illegally and self-consti-
tuted court, there being no provision
| for a court en- banc.
Mr.. Lewis contended that the courts
were legislative bodies, and conse-
| quently limited by the local statutes.
lie argued also that the publication re-
| ferred to a matter already disposed of,
| and that if the courts have power to
| punish for comment upon cases already
| closed, the freedom of speech guaran-
| teed by the constitution was a hollow
mockery. He pointed out in this con-
nection the distinction between the Nc
| Carthy mayhem and the assault cases.
| Mr.. Andrews followed, pointing out
| the safeguards which surrounded
| judges in the conduct of their courts,
| and their right to prosecute for Grim
| incl libel or damages. What halo in
vests the judge of the Circuit Court"
asked Andrews, that makes him the
! highest power in the land to punish
| where no one else CAM He argued
also that Mr. Smith had purged him
| self of the contempt in his answer, by
| ulsclaiming any intention to interfere
with the trial or of knowledge of such
case being pending on the same state
| of facts
| Mr.. Davis replied at length. He
claimed that intention had nothing to
| do with the contempt; that if the
| newspapers wished to lampoon the
judge with editorials and cartoons they
| must be careful not to interfere with
the rights of third parties. He con-
| tended that no statute was needed to
/ give the courts the power to sit en-
| banc, but that it was the division into
separate courts that required legisla-
| tive action.
Justice Perry interrupted to ask Mr..
| Davis whether the two judges We're
| sitting with the presiding judge as a
| part of the court or simply II an ad-
visory capacity. Mr., Davis replied:
Il think it looks as If they were sit
| ting as advisory judges"
| Then he added: mo, it looks to me
as If they We're sitting, and all acting
and participating. Anyhow II the 9TH
| ers did sit 1t was only an irregularity
at the trial, and it cannot be inquired
| into upon habeas corpus" He conteISi-
cd also that the legislature had no
power to limit the inherent right of the
Circuit Court to punish for contempt.
Al o'clock adjournment was taken
to this morning at 10.
". Z. c. Hasson has asked to have
substituted Elise s. V. Neumann as ex-
ecutrix for Paul Neumann, deceased, in
tho case OF Hasson VS.. Paine ct al.
Petition for sale of personal property
has been filed in the matter OF the es-
RI Re of Samuel Pedro, an insane per-
sss.
Notice of appeal is given i'm the case
Of Schlief VS.. Joseph Clark ct al.
W. ii. Smith, OF Hilo, was admitted
eo practice by the Supreme Court yes
tsrday.
Demurrer has been filed in the case
OF Lee Yin ct al. VS.. WAIKIKI Land a
Lean Association ct al.
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