Polynesian. [volume], November 02, 1844, Page 98, Image 2

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98
T II i; V O L YNESIA N.
November,
should be placed in the jury box." There
arc objections to this plan; the box it?clfi?
too small, and if one sufficiently large could
be found it would leave only the rogues at
large, a consummation not at all desirable.
But the sentences which have given us the
greatest difficulty are on pages 47 & 42.
Indeed, so odd is their construction, wc are
arc inclined to suppose, Mr. Brown put all
the words used in them in a jury box und
drew them out by chance, arranging them in
consecutive order as they came to hand.
'The whole statement" in your communi
cation, an regards the interference of Mr,
Hooper, uncalled for and 4 unbidden' in Mr.
Wiley's afTairs, is incorrect."
"I shall not pretend to answer your com
munication of seventy two pages, seriatim,
or in all its ramification. 1 would not in
flict on you the punishment of wading through
such ft mass, even though for your " uuasi
delicto" in compelling me to do it, you might
deserve such a punishment. Though I may
be discursive, I shall endeavor to be as brief
as possible, and to the point."
The latter is an inextricable labyrinth of
words. His answer is evidently referred to
by the term " mass," and yet he goes on to
say that he has been compelled to wade
through it, which could not have been the
case, as it was not then written, though he
very justly calls it, in anticipation, " a pun
ishment." If he means the " communication
of 72 pages," his " wading" carried him be
yond his depth. Will any one explain to us
the faculty of being at the same " discursive"
and " brief" and " to the point" ? The sen
tence becomes the more unintelligible when
wc put into English his Latin quotation. It
would then read "even though for your as
if dereliction" or utter forsaking or abandon
ment; none of which definitions are calcula
ted to throw light upon the matter. (47th.
page,) we learn the strange fact that a trial
can be void " ab initio." An immoral con
tract or a false principle is thus void, but a
form is quite another affair. It is the more
surprising that Mr. Brown should quote
latin, as in other portions of his letter he
manifests a contemptuous horror at the terms
" quitam," quasi delicto, " ex-contractu,"
and " tort," and yet, with marvellous incon
sistency, marshals them before him with all
the bewildering delight which a child mani
fests upon the receipt of a strange puzzle.
The reader must be by this time heartily
tired of this syntactic dissection, and we will
proceed to a brief analysis in a rhetorical
and logical view. Writers in general seek
to avoid bathos, but Mr. Brown has given an
incomparable specimen in the succeeding
paragraph, but even that would have been
improved if he had not been so led away by
the flow of feeling, as to neglect to call things
by their right names. A " Congress" is as
unknown here as in England. We have a
"Legislative body" which enacts laws.
"Do you believe this, sir ? Do you think
it was the intention of the Congress of the
Hawaiian nation, when it enacted these laws,
to place the chastity oftheir wives and daugh
ters below the value of even the 1 ono hun
dred and five goats that you lay so much
stress on, thousands of which animals have
been sold in these Islands for a rial each,
the value oftheir skins alone ?"
Other instances of carelessness in not in
forming himself rightly will be seen (p. 44,)
"A British sailor accused of an attack
upon the king's house, or of treason, (I know
not which)." It is somewhat late for a di
plomat of his standing to learn that an alien
cannot commit treason, (p. 49,) we find the
subjects of Great Britain transformed into
citizens. Mr. Brown has not neglected, in
his composition, that peculiar vein of declam
ation known as rant, of which a notable ex
ample is given on page 44.
" And how ia it now, sir," (43d. page and
52d. do.) " let me say sir that your tone and
pretensions are far too exalted, coming from
the Secretary of State of such a kingdom as
this, and addressed to the agent of a nation
like the United States, " have a tinge of mock
grandeur about them that is very amusing.
Did the writer ever read the celebrated New
Hampshire speech, commencing "Europe
is no more to us, sir, than a filbert shell to a
meetin-'u "
Mr. Brown asks what is the Ugul mean
ing of the word, crime, and in reply to his
self-propounded question, gives a dictionary
definitions The question was quite unneces
sary, as it had been fully answered in the
letter of Mr. Judd, (p. 20.) But to save our
readers who may wish further to investigate
it, the trouble of reference to law books,
wc quote from unexceptionable authority,
its technical definition:
" Crime means such u breach ol some ex
isting public law as amounts to felony." 4,
Hlk. Commentary, 6.
"Felony happens in those for which a
capital punishment either was or is liable to
be inflicted ; for tho.c felonies which are
called clergyable, or to which the benefit of
clergy extends, were anciently punished with
death in lay or unlearned offenders; though
now by the statute law, that punishment is
for the first offence universally remitted." 4,
II Ik. Com. 94, fl.3.
"The punishment of a person for felony
1st. to lose his life; 2dly. to lose his blood,
as to his ancestry, and so to have neither
heir nor posterity; 3dly. to lose his lands;
and the king shall have year, day and waste,
to the intent that his wile and children be
cast out of the house, his house pulled down,
and all that he hath for his comfort and de
light destroyed." 4, Hep., 124.
--" A felony by statute incidentally implies,
that the offender shall be subject to the like
attainder and forfeiture as is incident to a
felon at common law." 3, Inst. 47.
Mr. Brown's mode of defining it is admira
bly calculated to mislead from the real point
at issue, and we notice a similar ruse in
another part of the letter. The last para
graph of page 41, if read by itself, would
lead one to suppose he was referring to an
elaborate argument in reply to one of his.
Upon examining the document in question,
we find it to be a mere note, stating concise
ly and explicitly, that, if he desired to claim
diplomatically, the privilege demanded for
Mr. Hooper, time was necessary to vindicate
the course assumed by the governor of
Oahu, &c.
Mr. Brown's mode of arguing is " sui gen
eris." In the letter of Mr. Judd, we find the
facts and law incontestably proven. Mr.
Judd neither made the one or the other; he
found them in the records of courts, and the
laws and constitution of the kingdom; the
latter is the offspring of the combined talents
of the most profound minds of all ages. Nei
ther Mr. Judd or Mr. Brown can change a fact,
and if Mr. Brown disputed the justice of the
laws which had reference to the case, he
should have attacked the principles upon
which they were based, and demonstrated
their falsity. But we find him doing nothing
of the kind. Indeed so far are the arguments
he uses from affecting the real points at
issue, that they stand in the same safe atti
tude in regard to them, as did a certain cler
gyman's discourse to his text, between which
the disconnection was a matter of so great
notoriety, that one of his parishioners at last
observed to him " If your text should catch
the plague, you need have no fear for your
sermon."
The law and facts are most obviously dis
regarded, and new premises assumed from
which he reasons most verbosely. It is in
vain that he is shown that the Hawaiian law
does make a distinction, in the offence in
question; the penalty attached to one species
of " hewa" constituting it a misdemeanor, and
to the other, a crime. YTiley's case was
most unquestionably of the former character.
Yet this fact is treated as nothing, and an
erudite dissertation on the word " hewa"
given, which word we should not suppose
that Mr. Brown need be informed, is applied
to the most trivial accidents of every-day-life,
as well as to crimes; so that if it means
crimes, it equally means, misdemeanors,
and the lighter offences against the laws.
He might have seen also, if he had chosen,
that the legistators, of whom he speaks so
contemptuously, (p.44,)did recognize the
difference between crimes and misdemean
ors, by the usual mode of discrimination,
viz. distinction of punishment; and the term
hewa employed in all cases, resulted from
the deficiency in the language of appropriate
technical terms. A language is not perfec
ted in one generation, or even in a century.
Setting so small value himself upon estab
lished legal and diplomatic forms and prin
ciples of laws, it is not surprising that he
should flatter himself, that his, " I contend"
and " I consider" are arguments, immovea
ble as the firm rock, and that he should ex
pect to deceive others by them, a9 easily
as ho deceives himself. He is thus
lead into the novel attitude of undertaking
to interpret the Hawaiian constitution for
the king and his ministers. A foreign min
ister is bound to take the laws and customs
of the land as he finds them. A nation in
terprets its own constitutional forms, and
rightly or wrongly, so that they do not in
fringe the laws of nations, it is its own affair.
What would a foreign minister at Washing
ton be told, were he to undertake to say to
the Secretary of state, " In what part of the
constitution do you find the right, sir," to do
this or that ? If a nation infringes its own
constitution (which wc are very far from ad
mitting it to be the case in this instance,) or
gives it a rigid or loose construction, it is en
tirely an affair within itself, and no other na
tion has a right even to enquire, " why do
you thus or so." We find the expression
"jury empannelled," in two instances ap
lied to the jurymen drawn for the second
trial of Wiley. No jury was empannelled;
if one had been, the members would have
received their fees. Whether the trial of
Wiley was a "farce," will be seen by an
examination of the evidence before the Infe
rior judges. That of Jenkins also, before
the same court, is worthy of note, especially
as his affidavit is much relied upon by Mr.
Brown. His sentence was confirmed by a
foreign jury, on appeal. The trials before
the police courts in the United States, are
conducted with quite as much brevity, and
as little attention to form. Indeed, the pref
erence in these respects may be given to
our Inferior courts, and we know of no in
stance in an appeal, in which their judgment
has not been confirmed by foreign juries, a
fact which speaks favorably for their justice.
Mr. Brown, in his letter of 14th. Februa
ry, protests "against any injury that may
accrue through it, (the third Article of La
haina,) to the interests of any of the citizens
of the United States," and immediately after
claims the same. What ! claim the privi
lege of doing an injury to his countrymen !
We should think such a privilege would be
more honored in the breach than the obser
vance. This part of his correspondence merits
more particular attention. It will be seen
that he has very conclusively shown the third
Article of Lahaina, to be derogatory to the
dignity of an independent nation, and perni
cious in its results, from the power it places
in the hands of foreign consuls to pack juries,
destructive of justice and dangerous to the
rights and liberties of His Majesty's subjects.
He finds it to be a flagrant political immor
ality, and very properly expresses his disap
probation thereat. If he had stopped here
it would have been well; creditable to him
self and his government. But, after proving
it an injury and an immorality, he demands
for his government the privilege of being a
participant in both, thus making them a par
ty to the acknowledged wrong. Will the
government at Washington, which the em
peror of Russia characterises as imbued
"with generous, good faith," and the citi
zens of the United States, the ever constant
and warm friends of the Hawaiians, thank
Mr. Brown for making them a " particeps
criminis" in a wrong upon a nation, too
weak to assert its rights by force of arms ?
Humanity forbid ! Neither will Great Brit
ain or France continue to exact so objection
able a feature, when the case is properly
laid before them. We, who have lived here
for a few years past, know full well the ori
gin of this exactment. It was brought about,
by the same spirit of deadly hostility to the
Hawaiians which led a La Place and a Pau
let to thOe shores. Time and the generous
friendship of the guaranteeing powers, will
consign it, with the remainder of the alleged
grievances, which have been laid so heavily
upon this nation, to the "tomb of the Capu-
lets," and the Hawaiian be restored to the
right of being judged and heard by a num
ber of his own countrymen equal to that of
the foreigners, that sit in judgment upon a
case in which he has much at stake.
A similar inconsistency pervades
that portion of his letter of the 18th.
September, when he undertakes to support
his views in regard to juries, by argument.
The native half of a jury, ho thinks, " might
be influenced or biased by one individual
foreigner on the jury, who was able to speak
their language." Another objection is, that
" it would require only two foreigners, to
unite with the native half, to bring in a ver
dict of guilty." Such assemblages of crude
ideas arc termed "reasons." They prove
nothing, and amount to nothing. They are
mere conjectures, and have no force as ar
guments. Does not Mr. Brown see, that,
even if admitted, they tell as much, against,
as for his views. Allowing that one jury
man or two, are able to converse with their
Hawaiian associates, and to bias them,
would they not bias them to their views,
which would naturally tend in favor of their
consul or countrymen ? If theso foreigners
should agree with them, would it not be
prima facie evidence that they are right in
their opinion. But Mr. Brown seems to fear
that those who are able to converse in Ha
waiian must necessarily be false to their oaths.
Or else, why should the knowledge of Ha
waiian be an objection. A juryman is to be
considered, uutil it can be proved to the
contrary, to be true to his duty. Then, will
he not influence the native half aright ? We
have far more confidence in foreign jurors
than Mr. Brown. He says, " I do not mean
to say that a jury of half-foreigners might
not possibly be a fair one. I do not doubt
it, but I do say, that it is highly probable
that in many cases it would not be so." He
thinks it possible a half-foreign jury may be
a fair one, indeed he does not doubt it, but
thinks in a great many cases they would not.
This is an extraordinary compliment to his
countrymen, and if admitted to be correct,
utterly destroys all argument in favor of
even a half-foreign jury. If six white men
perjure themselves often, is the matter to bo
helped by making their number twelve. Ap
plying Mr. Brown's rule and claim, we get
a white jury, indeed, and twelve persons,
six of whom will, "in many cases," be un
fair, with no surety that the other six will
not be also. It is worthy of note that he
docs not doubt a thing, but thinks it highly
probable it is not so. We have yet to learn
that operation of mind which enables a man
to believe and disbelieve the same thing at
the same time. We fear it would take as
long to explain it, as to settle the number of
angels that can dance upon a needle's point,
or to find the philosopher's stone.
Although Mr. Brown manifests so total a
disregard to the facts and arguments of Mr.
Judd's letter, he deigns to not only quote
phrases from it, which he deems applicable
to his own purposes, but, whether designed
ly or not, it is not for us to say, has allowed
himself to imitate the order of arrangement.
We think it would have been better had the
originality of the other portions been adher
ed to throughout. The document then would
have possessed the novelty of being original
in all its parts, and as' the world are ever
seeking after that which is new, would have
made it very popular.
Inappropos quotations, as we have before
observed, weaken an author. " I have pro
ven incontestably by facts ami books," precedes
the list of twenty statements which he in
cludes in that category. If by books he in
tends " the translation," he is right, for that
is the only work which he quotes as authority.
Far be it from us so far to doubt Mr. Brown's
sincerity, as to entertain even the supposition
that he docs not fully believe in the sound
ness of these twenty statements, but we would
not venture to say as much for our readers.
The case is in all its parts before them, and
they will be enabled to judge for themselves.
If our brief comments will guide them in
any degree to a correct understanding of the
matter, or have made more lucid, portions