The Hawaiian gazette., 1903-06-23
MANK|CH|
DECISION
TextSh0WsMarked
Difference of
Opinion.

yesterdays steamer indicate that tn
majority followed out closely the argu
ments advanced by Attorney Genera
Dole in the courts here, and which
were sneered at as ridiculous by som,
of the local judges.
The decision is heralded as the mos
important since the rulings in the Por
to Rican and Philippine cases. The
dissenting opinions are interesting a:
voicing the sentiment against further
extension Of Americas domain.
The court stood exactly as then
with the exception that one of the five
Justices, White, who agreed with the
majority In it's judgment, differed with
1t as to the means by which the result
was reached, and Justices Holmes and
Day took the positions held by their
predecessors, Justices Gray and Shiras
The majority was composed of Jus
tices Brown. White McKenna. Holmes
and Day: those dissenting were Chief
Justice Fuller and Justices Harlan,
Brewer and Peckham.
Justice Brown, who delivered the
opinion of the court, held that Man
klchi had been properly convicted. He
said, in effect that where the language
Va
intention of Congress. it should not be
construed literally; otherwise 1t would
result in freeing all the criminals con-
victed under it, and this contingency
could not have been forseen when the
Newlands resolution was adopted. He
added:
If the words of the Newlands reso-
luton, adopting the municipal legis-
latlon of Hawaii not contrary to the
Constitution of the United States. be
literally applied. the petitioner is en-
titled to his discharge, since that in
strument expressly requires that mo
person shall be held to answer for
capital or otherwise infamous crime
unless on presentment or Indictment
of grand jury" and that "in 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 under
lying this and all other rules for the
Interpretation of statutes, and that is,
What was the intention of the legisa-
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 law-making
power will prevail even against the
letter of the statute, or, as tersely eX-
pressed by Mr.. Justice Swaine: "a
thing may be within the letter of n
statute and not within its meaning,
and within it's meaning, though not
within its letter. The intention of the
lawmaker is the law"
Justice Brown cited many other
opinions. among them that of Chief
Justice Fuller, that nothing Is better
settled than that statutes should re-
ceive a sensible construction. such as
will effectuate the legislative intention,
and If possible, so as to avoid an I'M
just or an absurd conclusion" Con-
inuing, Justice Brown said
There art many reasons which in
clude us to hold that the act was not
intended to interfere with the exist
ing practice when such interference
would result in imperilling the peace
and good order of the islands.
From the terms of this resolution 1t
is evident that it was intended to be
merely temporary and provisional;
that no change in the government was
contemplated, and that until further
legislation, the Republic of Hawaii
continued in existence. Even its name
was not changed until 1900, when the
"Territory of Hawaii was organized.
In conclusion Justice Brown said:
Inasmuch as we are of the opinion
that the status Of the islands and the
powers OF the provisional government
were measured by the Newlands reso-
ltion, and the case has been argued
pom that theory, we have not deemed
/ necessary to consider what should
ave been its position had the impor-
ant words. mot contrary to the Csn-
titution of the United States" been
mitted or to reconsider the questions
hitch arose in the insular tariff cases
egarding the power of Congress to an
ex territory without at the same time
xtending the Constitution over II.
Chief Justice Fuller and Justice Har-
IN delivered the dissenting opinions
With marked emphasis the Chief JUS
Ice declared that by the concession
y Hawaii of complete sovereignty to
ne United States, recited in the reso-
ition Of annexation, the Hawaiian ISL
nus lhHH'b PRIV VI
ne Federal Constitution. 1t was al
lost criminal to tamper with the plain
ords of this resolution, mot in con-
let with the Constitution of the United
tates." The judiciary was not at lib
rty to make an exception, however 4
reat the eXigencies of the case would
,em TO require 1t. l
The majority opinion he maintained
as a usurpatlon by the court of the
.w-making power, which was vested ,
Congress alone. 1t was plain to him
lat Immediately upon annexation the ,
constitution of the United States be-
me the supreme law OF Hawaii. ,
Justice Harlan, who delivered his ,
)inion. in a manner even more forci- ,
G and dramatic than that of the Chief
Istice, maintained that the view of !
lie majority was that Congress, at its
secretion. could have kept in force the :
legislation of the Hawaiian :
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