Year: 1863

It's argued further by defendant that section chapter ~
OF the Penal Code unjust and unreasonable in its
quenee and therefore force of
this point stated the consequences of that
licensed vendor he subjects himself of
more than $500, imprisonment for longer than
years II meant TO be argued that would be unjust and
unreasonable to exact from vendor who violate the
law the penalty prescribed by the Penal Cede addition
the penalty OF his bond and the forfeiture
the license law, that Is matter with which the has
nothing do admitting that the penalties could
De legally e1acte upon which do not venture opinion


counsel mean TO that the provisions Penal
unreasonable law because those provisions prescribe
heavier and punishment licensed
dor who sell spirtuOus liquors
saw that do mo- nerceve snvb;ne un;1t or in
such law. 1t is obvious that licensed vendors possess
hundred fold unlicensed PERSONS the facilities
violation prohibitions that their temptations
do cOrrespondngly great reasonable there
FORE the of the Legislature adjust the penalties
cordIngy IL Is the duty of the Legislature to afx such
amount of punishment the commission of oense will


tend TO deter men from such commson aud not to ascertain
on violating the law 1t is not for the
that the penalty excessive and unreasonable and that there
fore the lax is void Take example, SNUG
Cling For single act of smuggling, however small the
meut but argument in that punishment
unreasonable and therefore the should hold the law to be
void, would deserve attention


The next ground of defence which shall advert is that
in conflict with the provisions of Articles 2d aud 10th of the
Treaty with France By the 10Th Article of that Treaty.
stipulated the Of the Hawaiian Government that the
importation and the sale of wines brandes French
gin shall not be prohibited the Hawaiian Islands Article
3D. which regulate
and maritime intercourse the respective subjects





he snail have the right buy and to sell OF and 10 whom


they please, without monopoly exclusive
whatever their liberty in this respect They shall be
equally free in all their purchases well all their sales,
kind both imported destined Importation
they comply with the laws and regulations Of the country"


subject under those provisions equally be claimed by the
Great Britain 1t of mporta-


ton which IS guaranteed by the Treaty carries with it,
natural result freedom OF sale; the importation
be prohibited by law neither the sale be prohibited
Syea @ , ~t 10 n any a the words They shall
must be taken without qualification Whatever and extend
the right of SALE which follows the right of Importation
yond the power OF the slightest limitation or estrcton by
municipal law and that therefore, the law which prohibits
the Treaty


The language of Treaty undeniaby broad and the
sustaining the defendants position; but understand the
general and of the second Article whole
which should be read together be principally securing
for French subjects residing visiting this Kingdom for
trade or commerce. an equality rights and prv
leges regard with Maestys
subjects. That the Hawaiian
derslood the treaty stpulaons referred TO in the light
urged upon the by the defendant evident The pro-
hbitOy law which is sought be Overthrown
force for before the date the


the provisions of that Treaty had His
Maess Government conflicting with important law,
an ehange must nave followed Yet three sncces-
sve sessions of the Legislature have been held since that date
aud the Legislative Body has not been called by the Ex
ecuve To repeal the law in question, in order give effect
the Treaty. II is said that the has nothing do with
governmental policy. But this is
take notice Of the General poy b
judicial recognition of that policy becomes necessary
cases as throwing light the meaning of statutes and
In this case the Hawaiian Gov
had ratified the provisions Treaty.
ing them 10 mean what cOnended line If policy
sued ever since the recognition Of Hawaiian Independence


must suddenly have been abandoned But neither those
provisions understood the late Commissioner of France
who negotiated the Treaty behalf of his Sovereign a
by reference to the Treaty and Protocols printed by
order of the King in Council see 7 that suggestion
having been made, Privy Council Treaty pro-
ved for the sale of intoxicating liquors the Kings native
missioner solved that doubt officially foows That
had entered into the intention OF France interfere in
the The
liquors TO the natiyes it not the intention Of France
The object of the 9th Article protect Oreigner espec
ally the French against all systematic and absolute pohb
ton, and at the time leaving the Hawaiian Govern
every liberty regulation that special
cOmmerce." then, appears existing municipal
laws in conformity with His Majesy's Treaty engage
men as mutually understood by the two Governments and
this part of the defence must therefore fall to the ground


The most important ground taken by for the defend
that the Prohbory law in conflict with certain articles Of
the Constitution and therefore void The articles relied upon
are the lst, 18th and 62d, which read as follows:


Article l God hath created all free and equal and
life and liberty the right Of acquiring possessing pro-
tectng property and of pursuing and obtaining safety and


18th. King Government for the
pIness people, for the profit honor or private
interest pf any family, class of among his
subjects Therefore, making naiioH regard
shall be had the protection only
of the King, the Chiefs Rulers of all people


Article cd. Full and authority
said Legislature, from time to time, make all Of
wholesome laws either with penalties without they
shall judge to be for the welfare OF the nation and for
support and defense of good Provided





1t is argued that section l. chapter 20 of Code
privileges and immunes citizens which
incorrect way OF putting the case The aw referred
no privileges or mm1nties to any class ON the eonIaryt
furnishing spituOus liquors TO native subjects The true
mode OF stating this point of the defence
this the object prohbory being pre-
vent the safe OF liquors native subjects only and all
subjects alike, it variance with the spirit the
ton This point, therefore, although stated separately by
comprised in the general ground and will be


Sawyer tried before this court at the
July erm 1852 the defendant under
ute prohibiting the manufacture of intoxicating liquors One
ground OF defence relied upon in that that the
hboy law rePugnant to the LIST article OF the Constitution,
and therefore void The ovemled that part
fences and took occasion that Time opinion.


as preface announcing and recognizing in TERMS
h osenns % @e equality and com
sttuonal government and upon which the Hawaiian Con-
stitutOn prOsedy based but that in the application
those principles the language which they declared is
not to be understood absolute and unlimited That
language must be interpreted and the application of those
principles be controlled and regulated succeeding
provisions of the cOnsiutiOnby the expressed clearly
piled requirements authorizations and limitations of the in
strument, regarded whole The bare recognition those
honatye appcation for, as remarked IN the defendants
brief: The ideas Of naIural civil and eqsal rights
have differed upon the subject and opinion gem
era principles wider Interpretation and
yet both and the other with equal proey be said
enjoy political and civil freedom although unequal
Those principles recognized for the
first time in the Constitution adopted in lS52 They had pre-
Constitution They were not embodied in the
Constitution, formed part preface prop
erly styled sentiments principles in accordance
with which the Government be conducted
cessa prove length that those sentiments principles
have been interpreted deemed applicable this
Kingdom in the unlimited eOnended for in the
case, and in the Of Rex cs. Sawyer.


But is argued that the enactment Of the law
discussion what sometimes
and that the class legislation special
does exist view Of the provisions OF article I4h
Constitution. In the OF Naone ThurOn Vol
waian Rep page 20) the ground raised by de-
fendant, the law Of 1851 imposing special
and distinct school foreigners aud subjects foreign
birth parenage The held the law constitutions
al and that the Hawaiian Legislature always
has the special legislation of
taIation That decision however regarded
elusive in the did question
Of equality civil rights and privileges which mainly
relied in the this
must he urfhe med