The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-10-14
ttcAl JUSTICE.

without the steady application % M
principle. civilization, ln its modeti
form ut least, could not exist. LIZ
every other great rule ~ ORGANIZED
society. however 1t has been often ans
grossly perverted.
Every human being Is entitled 20
fair and impartial trial, In the ordin-
AIRY course " Justice. ana this applies
to both criminal and civil proceedings
Tho station OF a man in life, the In
fluence he has welded. the number OF
his friends. personal feelings IN COM
munity, all extraneous considerations,
are unknown quantities IN courts that
are honestly and rightly conducted. In
the criminal law, every man accused
of crime is supposed 10 be Innocent,
until that presumption has been over
come by proof Of his guilt, beyond a
! reasonable, not a con1ectural, nor hyp-
/ othetlcal doubt. Good reputation also
| is an element that, especially where
| evidence is conflicting, but substan-
| TALLY in all cases, enters into the is
sues under indictments that juries are
required to determine.
These propositions will be fully con-
ceded, in broad sense, by every
American citizen, who has n sound
mind and has the benefit of com
mon school education But, on the
other hand, while the rights of every
man should be rigidly protected and
enforced, government il essential to
the conservation Of society, commun-
tiles and nations, and proved crime
should be punished with reasonable
promptness and with absolute impair
TALLY. All great writer's and thinkers
on criminal Jurisprudence unite In the
declaration that the volume of crime
is reduced, not by the severity but by
the certainty of the vindiCation of out
ragged law and the inflction of an
adequate penalty.
In this and in the latter half Of the
last century. justice has been often
warped and defeated, where money
was plentiful, by legal combinations
of which brains, experience and de-
termination to force acCulttals, were
he controlling elements Notable illus
trations of this fact have been fur
nished by the artificial or manufac-
tured obstacles to convictions in pro-
secutions by the Federal Government,
through the Postoffice and Land De-
partments, designed to purify the
public service. Not less conspicuous
in the promotion of crime have been
frequent examples of the failure of
murder trials. The turbulent spirit that
incites communities to suppose that
they can protect themselves by i'm !
itating the violence they seek to re-
press, is due to this cause.
In cases of homicide, the plea of in
sanity has been a favorite resort. 1t |
is perfectly true that no person, actu-
ally insane at the moment of the COM |
mission of an Illegal act, should be |
punished, though perhaps it
is equally true that he should be Sc
cluded so that a repetition of the act
would become impossible. But it is
not the plea itself, which is quite
legitimate. but the manner of its pres
entaton, that offends the common
sense of mankind and dsturbs the
operation of justice This defence
greatly enlarges the scope of the evil
dence and enables many facts irrelev-
ant to the main issue, and only re-
motely tending to establish the exist
the record The effect of this latitude
is confusing. when the skill of the adj
vocate is brought to bear upon the |
testimony. The varying definitions of |
what constitutes the insanity that will |
relieve a defendant from penal conse-
quences are also seriously misleading. |
There is an apparently irreconcilable
conflict on this point between aliensts
and jurists. Scientific alienists, like
Maudsley, claim that there is such a
thing as irresistible impulse or mo-
insanity Immediately pre-
ceded and Immediately followed by |
mental soundness. Obviously such a |
doctrine would empty the prisons and |
leave the gallows to decay. The jurists, |
have sought for more prac
teal test, and, in California and in
other States, it has been settled that
the test of responsibility or irresponsi-
bility shall be the capacity or the in
capacity of a person who commits an
act that, in a sane person, would be
punished as a crime, TO distinguish
between right and wrong. This iefni-
ton also is dangerous, for it is easy
TO simulate insanity in correspondence
With that criterion.
The greatest obstruction to equal and
exact justice, in this connection. is the
hypothetical question, which Is vir-
ually the substitution of the opinions
IF alienlsts. usually compensated, for
he judgment of a jury. The hypothe-
ical question is framed by counsel. in
eclusion, and substantially constitutes
IN argument on one side or the other of
IN issue of insanity. Both sides are
to frame their questions with
n the exterior lines of the evidence.
The counsel for the prosecution mould
their question upon the testimony
lending To establish guilt. The counsel
for the defence frame their interroga-
tory upon the facts ana circumstances
favorable 10 their client. The alienist
Is called upon 10 express an opinion,
upon the supposed facts thus grouped .
together The process is illogical.
without reference 10 the particular
evidence In the case, an impartial all-
enlist, who should be selected ana paid
By the government Is competent 10
explain, In general way, the different
. "A. 4.