The Hawaiian gazette., 1903-10-13
IS THE MANKlcnI CASE ovERRULED7

The answer to this question is, that
the Msnkichi case could not be over
ruled by any less authority than that
of the Supreme Court of the United
States. by which 1t was decided. But
1t seems quite plain that, If Judge
Gears Judgment, requiring all offences
within the territory to be prosecuted
by indictment on the ground that they
are Infamous within the Fifth
Amendment to the Federal Constitu-
ton, be sound law, then the Circuit
Court in Honolulu has at least att
tempted to reverse 1t.
1t is true that the Mankichi case
arose In the interregnum between the
resolution annexing the Hawaiian ISL
ands and the approval of the Organic
Law. But the lay mind, on the facts,
will not be able to appreciate any dis
tinction on account OF that circum-
stance. The local constitution and
statutes. prior to annexation, allowed
indictments to be found by judge
and verdicts to be rendered by nine out
OF twelve Jurors. The Mankichi case
turned on these provisions, which were
repealed by the Organic Act. How
ever, the statutes, which authorized
defendants charged with minor offences
to he prosecuted without Indictment.
were not repealed, but continued in
force, and to them, therefore, the
reasoning of the Supreme Court of the
United States is distinctly applicable.
Section 3 of the Penal Laws defines a
felony" or a crime as an offence
punishable by death or by imprison-
ment for over two years or by the for
fixture Of any civil or political right,
and all other offences, except larceny,
as misdemeanors. Subsequent designa-
tions of criminal acts are conformable
to this fundamental distinction. Sec
ton provides indictments in all cases
not within the jurisdiction of a Po-
lice Court or District Judge" Sec
ton 521 discriminates between indict-
ments, applicable to felonies or crimes
and informations and complaints which
cover lesser offences, Section l of Act 8
Of the Legislature of this year author
ICES the waiver of juries on all charges
less than felony" with the consent
Of the Court. There are many other
sections of the statutes, relating to
original Jurisdiction and appeals in
matters, which rest on the
difference between offences
that are infamous" and those that
justice could not have been admins |
tered under the monarchy or the repub-
tic. and cannot now be successfully adj |
ministered within the Territory.
The Organic Act not only does not |
repeal these enactments, but declares
that they "shall continue in force" I'M
less Inconsistent with the Constitu-
ton or laws of the United States"
The Newlands Resolution of July 18th, !
1885, which prescribed the governing
law down to the action of Congress. !
expressly preserved existing legislation
mot contrary to the Constitution of |
the United States" and the effect of
these words was distinctly passed upon
in the Mankichi decision. And the Or
ganic Act not only protects the stat
utes as they stood when 1t was adopt |
ed, but aftirmatiVely guards against |
any technical holding in favor of Grim |
mails. 1t continues prosecutions" go |
ing on at the time of its passage, and, |
to the extinction of the Re |
public of Hawaii, enacts:
"4All offences which by statute then
in force We're punishable as offences
against the government of the Repub-
lie of Hawaii, shall be punishable as Il
offences against the government of the
Territory of Hawaii, unless such stat !
ute is inconsistent with this Act. or
shall be repealed or changed by law"
And under the head of THE Judi |
ciary," it says: "And until the legis-
lature shall otherwise provide, the laws
Of Hawaii heretofore in force concern
ing the several courts and their juris-
diction and procedure shall continue
in force except as herein provided"
Section SO of the Organic Act, which
specifically repeats all then existing
statutes considered by Congress to be
unconstitutional in a territorial jurs-
diction, emphasizes the foregoing eX-
tracts by providing: THAT the laws
of Hawaii relative to the judicial de-
partment including civil and criminal
except as amended by this
Act, are continued in force, subject to
by Congress or the legis-
lature."
1t thus appears to the average citi-
zen that all that the legislature of Ha-
wall, under its various forms of gov
eminent could do, and all that Con-
gress could do, and all that the Su-
preme Court of the United States could
do. to avert the possibility of a gen.
eral Jail delivery, under any ruling
that could be devised, was actually
done, and that, if Judge Gears decis-
ion be finally accepted, the principles
of the Mankichi judgment will be
tiouted, its reasoning transferred. and
its conclusion practically reversed. -
$-
Whether 1t was n fleeing memory
Of his decision that nobody can be sent