The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-03-18


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committee. NH,u i..| UHi..I. u.s 90
hIah .t.r. Uf miairW. ana tu.
Hrafdtt vas punished IH promptly fHt
UuiIHalNe and sNpUsirr an sKcDuilNs
ufHHHi - q judicial HUt. This stage
however. has been p8ss.l both boz EHE-
land and hrf colonies. end Boo ODE Unit
ed states Any newspaper ana any ln-
tItifusi may freely discuss ana Grille
ci-r soto % every executive ohDef
fr0r the President down. without suh-
iU,tiur himself Co any penalty except
responsibility under %. Jaw of libel
iva which De- is guaranteed trial 10y
Jury rutu comparatively recently the
doctrine Of constructive contempt OF
Indirect contempt prevailed Zoo both
England and the United states. The
diffct. noe between direct and indirect
or constructive contempt Is that the
former ~ committed by act or words
ia the immediate presence or vicinity
of the court, where the court b. dis
turbed or hindorcd I'm the performance
Of it, duties. while constructive con-
tempt consists In matters entirely re-
moved from the court, such. for exam
pie. a. publication in newspaper.
Most OF the United states. the Ma
tional Congress, and We had supposed,
Hawaii, have abolished this form Of
contempt by statute. Hawaiian stat
utes On this subject are published else
where In this issue.
The decision rendered by the Hawaii
an Circuit Court holding that cartoon
Of Judge Gear Is contempt Of court H.,
we believe. directly contrary to Ameri-
can ana Hawaiian statutes, and TO the
constitution, which guarantees an alb
solute freedom Of the press. This de-
oision raises an issue which can never
be settled until Il IL settled right. The
right settlement OF the question viii
be the definite and final establishment
in the Territory of Hawaii of the run
sameutAl principle of liberty, that eV-
cry man shall have the right freely TO
Alprcss himself concerning every pub
lie Official, as well as other topics Of
public interest. freely subject only to
the abuse of that right FOR which he
may be held to await trial and con-
viction by his fellow citizens acting as
a jury.
The light in which the constructive
contempt" theory is held by eminent
jurists is shown by the quotation from
Wharton, one of the leading writer's on
law, published herewith
We should remember how
ever. that summary commitment
is "A process only to be used
when no other remedy can pro-
tect public justice from obstruc-
ton. For a Judge, who sup
poses himself insulted, To fine
and mprison his supposed in
suffer, may be necessary, as
where the insult is in open
court, and is of such IA charac
ter that unless it is summariy
stopped and punished the court
cannot proceed with its duties;
but TO enable "A judge to punish
by summary procedure CON
tempts other than those just
mentioned is to set at naught,
without adequate reason, some
of our highest constitutional
sanctions. Such process dis
penses with "a grand jury. 1t in
IltlS punishment without tpl-
viction of petit jury. 1t per-
mits the party who supposes
himself to be injured to be the
tribunal which binds over, finds
the bill, decides both law and
fact. convicts and sentences, We
are also told. though as will be
seen enormously, by those who
advocate the prerogative to its
fun extent that the process is
, subject neither To writ of error,
, nor To revision by habcas cor
.pus, nor pardon. But the pre-
rogatiVe rests ON vicious line
) of reasoning. The supposed
contempt is such that the judge
win or will not be inundated
or swerved by it in the discharge
, of his duty. If not. then there
/ is no reason for such an extra
, ordinary remedy. If otherwise,
then for the judge to confess his
; weakness in this respect, and to
1 make this confession i'm SO con-
) spiCuous a way, Is at least as
!, injurious to public justice as is
the publication in which the OBJ
iectiunable matter is contained.
: But there is another view be-
yond this. We can conceive not
t only Of weak judge who breads
intimidation. but of corrupt
: Judge who breads exposure. To
give bad and bold man OF this
class an engine So potent as this,
is to take away one of the few
means by which he can be eN-
: posed. Certainly a prerogatiVe
so violent and so damaging
should not be exercised except
: in case of necessity.
Extract from Chapter on sum
, mary Punishment by Judges for
Contempt in Treatise on
e Criminal Pleading and Practice.
: by Francis Wharton, LII. d.
4 author Of treatises on "Crimi-
= nal Law" Evidence" Con q
II tlict OF Laws" and "NeGli-
= gence." recognized as the most
>, prominent authority on criminal
:, and semi-criminal procedure.
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