The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1903-07-16

and the American flag hoisted in its
place.
If the words of the Newlands resolu-
tiOn, adopting the municipal legislation
of Hawaii not contrary to the Consti-
tuition of the United Sta ties, be liter
ally applied, the petitioner Is entitled to
his discharge, since that instrument eX-
pressy requires amendment 81 that
mo person shall be held to answer for
a capital or otherwise infamous crime,
unless on a presentment or indictment
of a grand jury" and amendment 81,
that I'm all criminal prosecutions, the
accused shall enjoy the right to a
speedy and public trial, by an impartial
jury of the State and District wherein
the crime shall have been committed"
But there is another question underly-
ing this and all other rules for the in
depreciation of statutes, and tlnat is,
what was the intention of the legisla-
tive body? WITHOUT going back to the
famous case of the drawing of blood in
the streets of Bologna, the books are
full of authorities to the effect that the
intention of the lawmaking power will
prevail, even against the letter of the
statute, or, as tersely expressed by Mr..
Justice Swayne in Smythe V. Fisk, (23
Wall 374 $500: "A thing may be with
in the letter of a statute and not with
in its meaning, and within it's meaning,
though not within it's letter. The in
tention of the lawmaker is the law"
A parallel expression is found in the
opinion of Mr.. Chief Justice Thompson
of the Supreme Court of the State of
New York, subsequently Mr.. Justice
Thompson of this court,) in People V.
Utica ms. Co., Us Johns. 1858, 3SD: "A
thing which is within the intention of
the makers of statute is as much
within the statute as if it We're within
the letter; and a thing which is within
the letter of the statute, is not within
the statute, unless it be within the in
tention of the makers"
Two recent English cases are instruc-
tive in this connection: In Plumsleau
Board of Works V. Spackman u. r. 10
q. b. ID. SIS, $50 it was said by the
Master of Rolls, afterwards Lord Esh-
er: IF there are no means of avoid
ing such an Interpretation of the stat
ute, (as viii amount to a great hard
shlp,) "a judge must come to the con-
clusion that the legislature by inadver-
tence has committed an act of legisla-
tive injustice; but to my mind a Judge
ought to struggle with all the intellect
that he has, and with all the vigor os
mind that he has, against such an in
depreciation of an act of Parliament;
and, unless he is forced to come to a
contrary conclusion, he ought to as
sumo that it is impossible that the
Legislature could have so intended" See
also EH parte Walton, q. K. II Oh. d.
746)
Is there any room for construction in
thls case or, are the words of the reso-
Iuuon so plain that construction is i'm
possible! There are many reasons
ln6llrp IN
was not intended to interfere with the
existing practice when such interfer-
ehce would result in imperiling the
peace and good order of the islands.
The main objects of the resolution
were, list, to accept the cession of the
Islands heretofore made by the Re-
public of Hawaii, and to annex the
same as part of the territory of the
United States and subject TO the SOW
erelsn dominion thereof, 3D. to abol-
Ism all existing treaties with yarious
nations, and to recognize only treaties
between the United States and such
foreign nations; Sd, 10 continue the ex-
lstlhS laws and customs regulations. so
Tar as they We're not inconsistent with
the resolution, or contrary to the Com
stltution, until Congress shouId other
wise determine. From the TENNIS of
inns resolution it is evident that 1T was
HNtoiueu 10 De merely TEN UOrarV and
provisional; that no change in the gov
erhmeat was contemplated, and thar
until further legislation the Republic
OF hawaii continued in existence Even
lts name was not changed until 1gOO
When the Territory of Hawaii" was
organized. The laws of the ITnited
states were not extended over the i.L
ahdS until the organic act was nassed
on april 30, 1900, when, so careful vas
congress not to disturb the existing
condition of things any further thin
was necessary, that it was provided
lsec. y that only 1.-The laws Of the
United States, which are not locally in
applicable, shall have the same force
and effect within the said Territorv &c
ELSEWHERE in the United States" There
was apparently some discretion left 10
the courts in this connection. Qndi-
anapolls &c. r. r. Co " Horst, SO u. s.
Zl9) The fact already mentioned that
congress in this orSanic act inserted a
provision for the empanelling of grand
Jurles and for the unanimity of verdict,
indicates an understanding that the
previous practice had been pursued nm
TO that time, and that a change in the
existing law was contemplated.
or course, under the Newlands reso
luton, any new legislation must con-
form to the Constitution of the limited
states, but how far the exceptions 10
the existing municipal legislation were
INTENDED to abolish existing laws. must
depend somewhat upon circumstan noes
Where the immediate application of
the Constitution rauuira1 - -.