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title: 'Evening bulletin. (Honolulu [Oahu, Hawaii) 1895-1912, September 12, 1901, Page 4, Image 4',
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P ( 4 EVENING HUM.WTIN. HONOLULU. H. T.. THURSDAY. 8RPT. 12. 1901.
JR : i I
Published Every Day Except Sunday
at 210 Ring Street, Hrnul'ilu,
T. It., by the
BULLETIN PUBLISHING CO., LTO.
WALLACE 11. KAHIUNOTON... Editor
TllUltSIlVY ...BElTKMHUn 12. IU01
JUSTICE BY HSTLE.
Jti.lxo Kntfi'r cVclslon In llic hnl.cns
corpus case Is a treat to tlio loyil Am-
irlcnn mlntl follow In,? as It ilocs Uion
the surfeit if Jmllrlat Ii-rIMiUIou, ex
num. expedients nn.l wurplnn of Jus
tice to ulilrh two la a students of the.
Territorial Supreme Court lno treat
rd the citizens of Hawaii. Judge Efc
tee holds true to th" marU set b lilm
Mien first asstiin'm? ollUe In the Ter
rltory. truo to the principle announced
by him as the KUltl? of till J.idlclol
acts "that American law a common
The decision renderel toda reads
like a magna eharta to the lojal peo
ple of this Territory ho have so long
witnessed the prostitution of justice
for no other reason than that faction
al rulers dislike and are determined
not to face the American Issue. Judge
Kstce admits the "peculiarities" of the
local situation; a string that has been
harped on till It Is worn to a frazzle.
Hut ho does not evade his duty; be
dors not set aside the requirements of
his oath of office. Judge Kstee meets
the Issue manfashlon as true Ameri
cans have met eery Issue. Ho centers
his mind on the rendition of Justice
without fear or faor. He recognizes
that the rights of personal liberty
guarantied and guarded by the Consti
tution nre the foundation of our na
tion virtues. And he proceeds to grant
Judge Estcc's decision speaks for It
wlf and the llullctin commends Its
careful reading to ever citizen of this
Territory. Aside from Its effect upon
the prisoner at the bar, II has a deep
er and morn cogent lesson to Ameri
cans of this new possession. The pow
er of the Constitution Is here, not to
be trod under foot nnd scorned, but to
rise triumphant and bury the puny op
ponents of Its operations in the dust
heap of IntlgnMcant despair.
JUDGE ESTEE STANDS
BY THE CONSTITUTION
(Continued from pazo I.)
d Ktati'H, . . shall ivmaln 1 l
forte until the Congiess nf the Unit
id Stntrs snail othrlse determine"
(Vol 3'i, U 8 Stats. 78(1 )
Municipal lau Is . fined to be:
"Tne rule of law bj which u panic
ulnr district, lommunlt or nation Is
Kmerned." (I Iliac kslonc's t'cimni
41: 1 Kent's Comm. 447; 2 lliiiriHV
ltiu Dictionary 21.' )
Annexation Wat Complete
1bi lit solution ol Annexation of
the Hawaiian Islands as passed by
Congress prescilbes that "they nre tin
ncxwl as a part of tbci Territory of
the United States nnd nut subject to
the sovereign ifonilulnu thereor," and
on August I2tli lSOX. the American
flag was raised on the Islands. It
matters not technically whither th"
Constitution followed the Hug or fol
lowed Amerlcnn sovereignty here, for
with It rami) all of American law not
rspetlally reserved by thu Joint Ites
olutlon of Annexation. It goes with
out saying that two sovereignties
coulci not oxlst here nt the same
time and when the Resolution of An
nexation provided ihat "the munlclnal
legislation of the Hawaiian Islands not
Inconsistent with this Joint Itesolu
Hon nor contrary to thu Constitution
of the United States should icmaln in
force," It meant that all municipal leg.
islatlvo enactments of the Itepublle
of Haw nil contrary thereto should b.
ubrogatid. No reservation was nank
in the Joint Resolution of Artie les V.
v I and VII of the Amendments to tlm
Constitution, relating to Indictments
or trlnl by Jury, In common law crim
inal c-asi-s. It showed that Ameilcan
sovereignty not only prevailed here, us
elsewhem In tho Territories of the
United States, hut that nothing could
be done or permitted here contrary t
the Constitution of the United States,
excepting as expn ssly provided In the
Joint Resolution of Annexation. This
annexation was not as claimed by tho
Supiomii Court of the Territory in the
case of Peacock vs. Ilepublie of Ha
waii (12 Haw. 33) in a transition or
Inchoate state, but was complete, and
thct Constitution tamo with annexa
tion and became and ever since uns
been tho supremo law of this Terri
tory. This It of paramount interest
to thu people of this Territory, as It
secures to all tno equal protection of
llle. liberty nnd property which uro
fundamental rights, and chief among
which is the trial by Jury.
It appears that tho petitioner was
Indicted for the crime of murder un
der an indictment presented by tha
prosecuting officer of tho Territory
and found by tho Circuit Judgo of tho
Circuit Court under the provision of
section BIG of thu I'enal Laws of lt.07
of tho Republic of Hawaii, which n-acW
"The necessary bills of Indictment
Bhall be prepared by a legal prosecut
ing officer and bo duly presented to
the presiding Judgo of tho court be
foro tho arraignment of tho uccuseil
nnd such Judgo shall, after examina
tion, certify upon each bill of Indict
ment, whether ho finds tho sntno ,i
true hill or not."
Tho petitioner was then tried upon
tho said Indictment anil a verdict of
conviction of manslaughter was ren
dered by nine out nf tho twelve) Jur
ors who heard the enso In accotdanco
with section 134.". or the Civil Laws of
18H7 of thct Republic of Hawaii, which
prescribes as follows:
"No Jury for tho tilul of nn cas,
civil or criminal, shall be less than
twelyo In numSer. but when nine of
such Jury shall agieo upon n verdict
they nmy render tho snmi'. and sueli
verillc shall bo as valid and binding
upon tho parties as If icndeied by nil
Tho epilations then presented nro:
Were tho provisions of tho l'enul
and Civil Laws or tho Republic of
Hawaii under which this petitioner
vvns Indicted, tiled and cnnvlited
.".Municipal legislation contrary to
tho Constitution or tho United States?
or, In other words,
"Could a purton In tho Territory of
Hawaii, between tho 7th day or July,
IS'JS, and tho 14th day or Juno, 1900,
when tho Act for tho government or
tho Territory or Hawaii went Into if-fc-ct,
bo legally tried for" nn Infamous
crime without having been first in
dicted by a Oram) Jury as required by
Article V or tno Amendments to tho
Constitution or tho United Btatcs, or
convicted by less thnn a unanimous
verdict or twelve JurorB, ns provided
by Articles VI and VII or said Amend
ments? Article V or the Constitution ot tho
United States reads In part as lol
'No person shall be held to answer
ror a capital or otherwise) Inramous
crlmo unless on a presentment or In
dlctmcnt of n Orand Jury."
Too Plain for Doubt.
Even If this constitutional provision
had never been construed, the tan
guage Is too plain for doubt.
It has been held by tho Suprem-j
Court of tho United States that the
Fifth nnd Sixth Amendments to the
Coiistutitton were not designed as
limits upon the State Cloverntni tits
In reference to their own citizens, but
nro only restrictions upon tho Federal
power, (liar run vs. Ilaltlmorc, 7 l'e
ters 241; Thorlngton vs. Montgomery,
147 U. S. 4D0.)
The Hawaiian Islands wore territory
of the United States, "subject to the
sovereignty thereof" and under tho
control of Congress when tho original
proceedings in this matter wero heard
beforn tne Circuit Court of tho Terri
tory. (Joint Resolution of Annexa
Mr. Justice Hradley held In the casu
of tho Mormon Church vs. United
States, 13G U. 9. 1:
"That tho power or Congress over
tho Territories rf tho United States Is
general and plenary arising from and
Incidental to the right lo acquire tho
territory Itself, nnd from the power
given by tho Constitution to make all
ne edrul rules and regulations respect
ing the territory or other property bo
longing to tho United States. . . .
"It would be absurd to hold that Hid
United States had power to acquire
trrrltory nnd no power to govern It
'lo tho samo point let mo ndd It wun
recently decided In tho tuso or Downes
vs. llldwell, 181 U. S. 779, emoting
w'lth npproval from tho decision of
Chief Justice Marshall lu McCultougli
vs. Maryland, 4 Wheaton 3 HI:
"Tbnt tho power over tho Territo
ries Is vested in Congress without llm
nation and this power tins been con
sidered thu foundation upon which tho
Territorial (lovernment rests."
As to Territorial nuthorltles on
questions or tho Territories being sub
ject to Federal provisions, sou llrnil-
rord vs. Terr.. 1 Okl. 3i.u; walker v.i
N. M. It. R. Co. 7 N. Mox. 282.
In the oxorclso of tno plennry power
eonlerri'd upon It, Congress provide I
by tho Joint Resolution of Annexation
that all municipal legislation nf '.he
Republic of Hawaii "contrary to tho
Constitution of the United Slates"
should he n pealed, leaving In force
nil that wns not In conlllct therewith.
Intention of Congress.
No language could be plainer. I am
crustralned to hold that It was thct In
tentlon of Congress to extend tho
Constitution save ns limited by tin
other provisions or the Joint Resolu
tlou over these Islands, nnd nn other
construction would he a straining nit
er that which dots not appenr In tlis
1 itigunge or tho Act,
As was said by tho Supreme Court
of tho United Stutes in the recent III
sulnr case (Downs vs. llldwell, 1st
U. S. 7MC
"When tho Constitution has lien
onus liirmallv extended by Controls
to the Terrltoiles, neither Congrevu
nor the Territorial Legislature can
enact laws Inconsistent therewith. And
U CougiesH cannot control the t (insti
tutional rights or clttrcns after they
have iincp been extended to them In
the Terrltoiles, how can tho Territo
ries themselves do this through their
iiiurts or otherwise?
See Thompson vs. Utah, l"n U. S.,
where tho Court, at pagu 3111, sa)s:
"Assuming that tho provisions relat
ing to trials ror crimes mid to crimi
nal prosecutions apply to the Ton Un
lit k or the United States, tho next
Inquiry Is, whether tho Jury refvrrcil
to In the original Constitution and In
tho Sixth Amendment thereto Is a
Jury constituted ns It wns at common
law of twedve persons, neither muio
t.oi less. . . . This question must
be uns wend In tho allirniatlve."
Quoting approvingly from Spring-villi-
vs. Thomas, lt!ii U. S. 7U7,
where the Court says:
"In our opinion tho Seventh Amend-
mint seinretl unanimity In finding u
vi run t, as an ruscntlnl feature of
trial by Jnrj In common law casta;
and the Act of Congress could not
Impart the power to chungei the con
stitutional ruin and could not ho treat
td as attempting to do so."
And again on pago 335 (Thompson
vs. Utah supra) mo Court savs:
'"I ho Const. ..on of lliu United
States gavn the accused at the tlnui
i the inmmlssinn of tho offense, a
light to no tried by a Jury of twelve
pirsons, ami made It Imposilhlu to
deprive) him of his liberty except by
the unanimous verdict of such Jury."
Sen also Webster vs; Held. 11 Ha.v.
437; IM) American Publish Co. vs
rishcr, Hit! U. S. 464. 4S8.
The Miming of n truo bill by a Cir
cuit Judgo or In any other manner
tuan by tho Indictment or a (Irani)
Jury propel ly nnd legnlly empowered
to net In tho premises. Is In direct vio
lation of the provisions of Article V of
tun Amendments to tho Constitution
uf the United States, and any person
fennd guilty of nn Infamous irlmo
without such indictment by a (Iraud
Jury Is Illegally lonvleteii and should
,ie released on habeas coipus. (Ex
parte Ila.n. 121 U. ... 1; Ex paito
rnrits. d,i ij. b. jn; cjallon vs. VVII
sen. 127 U. S. :40.)
Limit the Constitution.
It is fallai Ions to attempt to limit
the lone of the Constitution In this
Territory or In view of i..e clear Intent
of tho Resolution or Annexation to
curtail thu constitutional lights of
tho oltlen. Thu pointing out to tho
reople ns the Supremo Court of tho
.inltory hns dono tnnt tno Constuu
tlon "Is not hern In nil Its fullne.sa,
without slating what pails nro and
vvnt parts nro not here, simply be
ings tlio question; and thu argument
of tho Assistant Attorney (Icneral ol
(ho Torrltorj that tilul by Jury is not
one oi iiio nmilanientnl propositions
ol tho Constitution is contrary to tho
settled opinions of such Ulustiloim
Anient nn Jurists us Mnrshnll, 8tory
nnd Kent, and also or tho loading
anient nn siniesmeit who usslsted In
naming those amendments to tho
'lliu hlstoij or tho trlnl bj Jury H
tno iiisttuy or English ami American
civilization it has tnmu down In us
nun Magna t'hnrtii, mid In iilmlnal
nsts nverj pifsiimptloii Ih In ti.vor or
I nin ol the opinion that ibe prmeol
ings In the Temtoilnl lourts or Ha
wall ror the Indictment nnd iimvlo
ion oi tno iiiiiioucr Ii"Ih in wero
-ontruiy In law nnd void, nml tbnt ho
s entitled lo lie dlsi barged on habeas
Let the prisoner be disc barged.
Dated, September 12th, IDOL
Utilutau vs. Kauai Is still on befor'
Judo Little today.
OH Tilt FAVORITE
E BRADLEY and HUBBARD
L A M PS
g PACIFIC HARDWARE CO,, Ltd,
These Roods were ordered from advance
sheets of the catalogue of the above manu
facturers, and are the latest In design and
OH early and make your selections.
In addition to the to coo feet of Oatden
Hosi- lately received, the "Emily F. Whit
ney" brought us io.coo ft, mete, making
TWENTY THOUSAND FEBT.
We have all grades, and our prices are
lower than ever quoted In this mvrket.
Pacific Hardware Co.,
Shipment of Good Young
Broken to harness, just received via the
"OLYMPIC," for sale at the lowest figures.
G. SCHUMAN, LTD,
Mcrchnnt Ktrect, between Kort nnd Aliikcn.
Here is something to so down the speedway
with. If you are proud of your horse liitcii
him to a wajitm that will not detract from
his- value either in jpeed or appearance.
TRY THIS ONE.
lUfi Mf.RCHANT 8T.
X M V3Wt!r 23 - O-
, Thi MnilptiHii luliiKK nur nt'W stuck uf
LINOLEUMS All Grades
Tin- prlcc-K hiii .c'l. BEAL'S pliers urn ahRK rliiht. If jciu'rti Inter
fulfil lu l.lnoYum, Wall HaHKingx nr Wluiiuw Shades, call at
Alakea Street, Below Merchant.
'Phone Main 358.
1171) River Street.
Fine Carriages, Wagons and Trucks.
Repair Work a Specialty.
All orders promptly attended to.
Only competent help employed.
Rubber Tires put on in Satisfactory Manner.
Tel. Hluc S4I.
ITS BjiBa 't.
Next Door to Ktiingcnwulil Building.
Tim t'Xpi'iliui ntal tunny
lit UllH 111 111 llHH pUHHI'll.
Our line of imtnmaKu Ik
i xti'iidliiK to tint other
IhIiiiiiIh, nml uo ait' ndd
IllK IK'"' lllll'H n h fast an
tlio liKht iini-H inn lie tt't
P. O. Box 83a.
MF'G CO., Ltd.
Ilct. Ilurctuntii unci Piiutihl.
P. O. Iltii 078.
Beer and Wine Dealers.
Kukul St., Near Nuuanu.
ON DRAUGHT AND IN BOTTLE.
Gonsalves & Co.,
AND WINE MERCHANTS.
22? Queen St., Honolulu. H. 1
oppOHlte the R. R. depot.
ON DRAUGHT AM) IN DOTTLE.
RyAn & Dement
Also proprietor of the popular
Ih Htt-udlly RmvvlnR In favor anions
ih-uiiIu who apnruclatu eood thlncs.
and Ih rapidly ueiomlnR thu favorite
CARBONATED 11V Till.
Soda Water Works Co., Ltd.
Solo Agts. for the Territory of Hawaii.
Ollke nnd WorkB, Oil Fort anil Al
Telephone No. 71 Main.
Soda Water, etc, ilellvered freo to
nil iart of thu clt. Inlnnd orderH ho
Helled. Opening Announcement!
All Oi-cIci-h Promptly Hilled.
HENRY ST. GOAR,
Members Stock und Bond
Edward Pollilz & Co.
AND DEALERS IN
Particular attention given to pur
chase and sale of Hawaiian Sugar
Eastern and Foreign Stocks and
403 Cnlliornln St.,
8nn I'l-iincJKCu, Ceil.
vV. C. ACHI & CO.
Brokers & Dealers
We will Buy or Pell Real Estate la
all parts ot the group.
We will Sell Properties on Reason
)FFICE. 10 West Kino Stri
To Let or Lease
A Fine House and Lot
on the makal side of Beretanla street
between Plikol and Keaumoku 8ts.
The house has several rooms and all
233 MERCHANT STREET.
A. C. LOVEKIN
STOCK AND BOHD BROKER
REAL ESTATE AND
402 JUDD BUILDING
John R. Bergstrom,
Bergstrom Music Company
Telephone 111! I.
3IA FORT ST.,
Hns tho Heat Assortment of
I'ACiriO ISLAND CURIOS
In tho City.
FHH-SH HOME-MADE POI ON TUES
DAYS AND VniDAYS.
Razors Honed and Set
Hawaiian Hotel Barber Shop.
FOR 85 CKNTS.
Architects, Contractors and Builders.
Edward R. Swain,
STANOESWAtll BID ,
J. F. RILEY I
Hoffman & Riley
C. O Boi 160
Oeo. W. Paec. . TeU 22
F. W. Beardslce. f. O. Box 778
BEARD8LEE Ok PAOE
Architect, nnd Builders.
Office, Rooms 2-4, Arlington Annex,
Honolulu, T, II.
Sketches and Correct Estimates fur
nlshed on Short Notice. 1441
OK AM. KINDS.
Dealers in Lumber and Coal.
Queen Street, Honolulu.
Jobbing promptly attended to.
M. P. BERTELMAN'S
IK - MOVED
To rear ot old stand. Entrance on
King street. Orders left at either shop
or office at John Nott's store, King
street, will receive prompt attention.
Lewis & Co.
Owlnj; to the consolidation
of t e b.-st Bscult Co'sln
America, we can tffer to the
public thr tallowing choice
malcej of bNcult :
Bremers Cccelian Tea
" French Wafers
Original Bent's .
Full Line of
Give Us a Sample Order.
Waialua Beach Hotel
CIIA8. DAVID, Munnfter
Now Open (or BtiHlncHA.
Finest nf Accommodation.
FlncHt of Bathing, s i i
Be 8urc to Get Off at I I
tilt Wulalua Stutlon
RATES $8.0 per day t
Special Rates by Week or
Month. I I I i i i t I
For further Information address :
II A Hi I W A P. O.
SHOOTING GALLERY X
W. H. THONE, Proprietor.
When You Want a Rig
ItlNd IJ1 Till:
LIVERY BOARDING and
: : : : : 5ia fort street
StnliUi 'I'honi'. U!l Mnln.
llncK Stand, 'I'lmnvH 313 nnd TJ.
J. J. SULLIVAN.
Drays tor Freight
Our representative meets all Incom
ing steamers from tho Coast, and we
check baggage on all outgoing Bteam
era. White and Black Sand For Salr
Office with Evonlns Bulletin, 210
King street. Tel. 86.
W. URSEH, Vt'l.
Tho Evening Bulletin, 71
3 cents per