The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-02-03
UNDER REFED SAILS GEAR ORDERS TRIAL NEW Alarm SSTEMTO
ATTORNEY GENERAL HAS A
LIVELY TIME.
Transition Period Differences Of the
Courts Bob Up Again and Calls
Forth Some Lively Discussion.

There was a spirited controversy for
over an hour this morning in the First
Circuit Court, over the transition peri
! Cd cases, and the clash of authority
! between the federal and Territorial
courts. Judges Gear and Humphreys
were on the bench, the former presid-
ling, and Attorney General Dole repre-
sented his department. The judge and
the lawyer both showed some heat
during the argument. and Attorney
George A Davis also injected warmth.
ending by quoting the governor as on
the side represented by the circuit
court and the United States District
Court, as opposed to that represented
lby the Territorial Supreme Court and
the Attorney General.
Dole opened with a motion to con-
tinue the transition period cases for
the term, basing his motion upon the
statements i'm a lengthy affidavit, some
portions Of which the court disapprov-
ed. The motion, first put i'm the case
of George Wade, was Overruled and
the court took the same action in each
of the other cases Dole got heavy
call down when he stated that he was
holding the prisoners both ways, and
convicted and as not convicted but in
diCted, but he stuck to the proposition,
and when told that if he believed the
indictments to be no good, it was his
duty to discharge the prisoners, as the
convictions had been declared invalid,
he stated that it was his duty to map
out his own policy.
THE attorney general may choose
his own course" responded Gear but
the court has a right to say what 1t
believes to be his duty in the natter
Judge Gear made an inquiry of the
attorney general as to which view of
the question he proceeded under,
whether he held the prisoners under
the old mittimusses, on their former
convictions, or on new indictments.
The attorney general is pulling all
IrOpes," said Dole, " to hold these men
until the matters at issue are decided"
"The attorney general will not be all
ilCWed to pull all ropes" said Judge
Gear. These men cannot be in jail
under both propositions, directly con-
tTary to each other, and they won't be
if this court is asked to act in their
behalf"
There is an appeal from your hon
or" said the attorney general.
1t was here that the court annOun-
Ced what it considered to be the duty
Of the attorney general, and Dole stat
ed that he was bound to choose his
own policy, as the head of a depart
ment of government that was indepen-
I cent, like the court.
1T was announced by the depart
ment during the last term of this
court said the judge, that the de-
partment intended to follow the United
3 States District Court in these matters.
, This court was very glad to hear that
such was the case, as it is of the Opin-
! iOr that that is the only right way to
$ do"
"I feel bound to say that this is the
p first time that / have heard that any
!. member of the attorney generals de-
p. partment has ever made such a state
i ment" said Dole. Mr.. CathCart in
j forms me that he has never said it.
The attorney generals department
proposes to follow the Supreme court
, of the Territory It's decisions are the
law of the territory until they are re-
% versed by the Supreme Court Of the
. United States"
Suppose they are reversed by the
i United States District COurt?'
e Dole contended that that court was
i not an appellate court Of the circuit
5 court, and he announced again his pO-
e Icy of following the Territorial Su-
T preme Court.
n George A. Davis, who made the an
rOuncement of the policy of following
e Estee's court in the transition cases,
e declared that he had done it on the
y highest authority. Davis was tempOr-
e airy assistant attorney general in the
e George Wade case, While Dole was
= away.
i IF such a statement was ever made
It by anyone connected with this depart
HltllL, Sdlu DOlt, IL was huIlllb NY
d bsenCe, and it is now repUdiated.'
Il made it after consultation with
d the highest authority in the territory
l. said Davis "Repudiated or not it
2, stands as the statement of the depart
ment. 1t came from the governor him
self"
The end of the discussion was tha@
S all the transition period cases were set
r for immediate trial in spite of Dole's
I efforts to get them postponed until
OsalI Mankichi is heard at Washing
ton
The affidavit filed by Dole contains a
10 history of the convictions, prior to
c June A. 1900: Of the release on habeas
u corpus by Gear on the grounds that
: the trials were illegal; the successful
appeal to the Supreme Court which
reversed Gear, and then the apphca-
ton to Judge Estee, who took Gears
u view of the matter and ordered the
prisoners released, and finally the APP
peal to the Supreme Court from ES-
tees ruling. The affidavit continued
"That, Notwithstanding the decisions
= of the Supreme Court Of the Republic
of Hawaii and of the Supreme Court Of
\ the Territory of Hawaii above referred
= to and the pendency Of said appeal of
Osad Mankichi before the Supreme
Court of the United States, the said
Second Judge of said Circuit Court at
a recent term thereof as the attiant is
Icredibly informed and believes, instruct
ed a Grand Jury to consider the evil
dence proving or tending 70 prove that
the defendants above named had COM
mitted felonies of which they had al
ready been convicted as aforesaid, and
II such evidence should be sufficient. "a
find and return indictments against
them; that indictments for said felOnies
We're found against the above named
] defendants which indictments are now
pending in this court, as appears from
the records Of this court.
THAT the atliant herein is credibly in
formed and believes that said Second
Judge has announced his intention "a
have said cases tried during the pres
ent term Of his said court; that such
trials will be in disregard Of and con-
trary to the decisions aforesaid of the
ID Supreme Court of the Territory having
appellate jurisdiction over said Second