The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-06-22

| are full of authorities to the effect
J 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
statute and not within its meaning,
and within its 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 IN
just or an absurd conclusion" Con-
| tinuing, 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 it |
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-
upon that theory, we have not deemed
it necessary to consider what should
have been it's position had the impor-
tant words, mot contrary to the Con-
omitted, or to reconsider the questions
which arose in the insular tariff cases c
regarding the power of Congress to an '
lex territory without at the same time
extending the Constitution over it.
Chief Justice Fuller and Justice Har-
an delivered the dissenting opinions.
With marked emphasis the Chief JUS '
ice declared that by the concession f
" Hawaii of complete sovereignty to o
he United States, recited in the reso- =
Ition of annexation, the Hawaiian ISL
nds passed under the provisions of
he Federal Constitution. 1t was al
1ost criminal to tamper with the plain
lords 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 l
reat the exigencies of the case would {
Gem to require it.
The majority opinion he maintained
as a usurpation 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- c
anne the supreme law of Hawaii. /
Justice Harlan, who delivered his u
oinion in a manner even more forci- ,
e and dramatic than that of the Chief :,
lstice. maintained that the view of
lie majority was that Congress, at its
could have kept in force the c
unicipal legislation of the Hawaiian s
lands relating to criminal matters, al I
ough such legislation may have been r
direct conflict with the provisions =
the Constitution of the United =
ates." He added: -
1 dissent altogether from any such g
ca. 1t assumes the possession by II
,ngress of power quite as omnipotent
that possessed by the English Par
Lment. 1t assumes that Congress,
hich came into existence only by vir- S
e of the Constitution, may withhold -
e fundamental guarantees of life and
erty from peoples who have come I'M
T our complete jurisdiction, and over
hose country We have acquired the
thority to exercise sovereign domin-
!. In my judgment, neither the life
r the liberty nor the property of any
rsOn within a territory or country
er which the United States is SOW q
ign can be taken, under the sanction -
any civil tribunal, by any form of
ocedure inconsistent with the Consti- q
ion Of the United States.
the accused had committed the
me with which he is here charged, in
Territory of Arizona: if he had been
lvicted Of murder in any court in
It Territory, except under a present
mt or indictment of a grand jury,
1 by the unanimous verdict of a
il jury; and if he had been then SEN -
ced to be hanged and was hanged, M
Judge of that court would have Hi
n guilty of judicial murder. OF that
decisions of this court leave no ~,
70