Kahikina Kelekona, John G. M. Sheldon, editor of the Hawaii Holomua, arrested for speaking, 1893.

LIBERTY OF THE SUBJECT.

Has Anybody Any Rights Under the Provisional Government?

Argument of the Question in the Circuit Court.

John G. M. Sheldon, editor of the Holomua, who is deprived of his liberty under a warrant issued by the President of the Provisional Government, was produced in the First Circuit Court before Judge Frear, at 11 o’clock this forenoon, under a writ of habeas corpus. Attorney-General Smith and F. M. Hatch appeared for the Government, and C. W. Ashford, C. Creighton, A. Rosa and J. L. Kaulukou for the prisoner.

Mr. C. W. Ashford argued for the discharge of the prisoner, speaking to the following effect: There was no authority vested in the Executive and Advisory Councils to issue warrants of arrest. President Dole had no right in the Proclamation of the Provisional Government to issue a warrant of arrest. The Government could not go behind that proclamation, he presumed. “We the People of the Hawaiian Islands” gave him no such power. If “We the People of the Hawaiian Islands” had intended to exercise that power they would have given it to him. The Proclamation stated that the President’s duties were to preside over the meetings of the Executive Council. Mr. Dole now holds no judicial position in these islands. He did hold such position before, but resigned it to become President of the Provisional Government. If that warrant, of President Dole was valid, then there was no security of liberty for any man, woman or child under these tropic skies. There was then nothing to prevent any resident of this country being consigned to a dungeon or bound in irons. It should be known whether the Provisional Government had such tremendous powers. He was not making a covert attack on the late revolution. He believed in the sacred right of revolution, and he considered the late revolution was a good thing. But it might not be good if the Provisional Government introduced anarchy and despotism. Some persons were led by their philosophy to believe that a beneficent despotism was the best form of government, and he believed that members of this school of philosophy had seats in the Advisory Council.

Mr. Ashford quoted Article 12 of the Constitution, “All men may freely speak and write their opinions,” etc., and contended that every part of the Constitution not repealed by the Proclamation was still in full force and effect, unless the Provisional Government took power to brush aside at its sweet will every vestige of constitutional law. He contended again that Mr. Dole was not an officer who had a right to issue a warrant of law. Article 14 of the Constitution contained only a truism in saying, “Every member of society has a right to be protected in the enjoyment of life, liberty and the pursuit of happiness.” Mr. Sheldon was but an humble member of society, perhaps, but his right to be protected in his life, liberty and the pursuit of happiness was as great as that of any person in the community. He was surprised that Mr. Dole, who has been known for many years as an honest and sound lawyer, and who has been an honored member of the Supreme Bench, should have put his name to such a document. Mr. Dole when on the Bench would not have dared to put his name to such a paper. Your Honor (addressing the Court) would never put your hand to such a document. That warrant was simply a command. It alleged no offense affirmed by oath against Mr. Sheldon. If that document was declared valid then there was less liberty under the Provisional Government than under the Monarchy. Quoting the Article giving the Legislature power to protect itself, counsel contended that the Proclamation did not give the Executive and Advisory Councils the status of the Legislature abolished by the revolution. The legislative functions of the Provisional Government according to the terms of the Proclamation are limited to the Advisory Council, and Mr. Dole is not a member of the Advisory Council.

Judge Frear—Suppose Article 51 is not remaining in force, do I understand you to say that the Executive and Advisory Councils have not power to pass a law under which the President would have such power to issue warrants of arrest?

Mr. Ashford—No; I do not admit that they have any power to pass any legislation excepting such as is absolutely necessary to harmonize things with the new conditions established by the Proclamation. They have not passed such a law, have they?

Judge Frear—The law of contempt.

Mr. Ashford denied their right to pass the law in question, that is, if we have a Constitution—heaven knows whether we have or not; I presume your Honor will tell us. But even if the Article quoted is in force, giving the Advisory Council the powers of the late Legislature, a law giving the President such arbitrary power as was here being attempted to be exercised was not the liberty of the nineteenth century, and he contended that there was nothing in that warrant to justify the Marshal in holding that man.

The Court at 11:55 took recess until 1 o’clock.

AFTERNOON.

At 1:05 the Court resumed.

Mr. Hatch opened by saying the prisoner’s counsel admitted that the Provisional Government was the Government of the country. Not Government of the country. Notwithstanding this admission his argument was largely based on the alleged illegality of acts of this Government. This was the Government of the country, notwithstanding anything in the Constitution of 1887. The monarchy no longer existed and all provisions of the Constitution inconsistent with the new system were expressly abrogated by the Proclamation. Whether it was a government by right of force was not the question. It was understood that the Constitution of 1887 was still in operation in principles consistent with the new order. One principle of that Constitution was that the Legislature had power to protect itself against contempt, and although that provision may not exist in terms its principle was to govern whatever legislative body was now in existence. Whatever the range of their powers might be, it must be conceded that the Executive and Advisory Councils were a legislative body. There was nothing in the Proclamation prohibiting the Executive Council from sitting with the Advisory Council. The Court must take cognizance of the public acts of the Provisional Government, and Act 4 authorized the enactment of laws by the Executive and Advisory Councils. It was not necessary for the Court now to define the powers of the legislative body as constituted. This body has passed Act 10, relating to contempts, and he submitted that this Act had the force of law. The Councils were a legislative body, they had passed an Act covering the case in court, and this was within their powers. That Act did not contravene any principles of the Constitution of 1887, but was in line with provisions in that instrument relating to the Legislature. Counsel had ignored the vital allegation in the answer to the writ, that prisoner was arrested by the warrant of the President and “by the authority of the Councils,” also that the warrant alleged an offense, to wit, contempt of the authority of the Councils. It was not necessary that the offense should have been stated in detail. The case was reduced, he submitted, to very narrow limits, namely: Are the Councils a legislative body? and, Has that body a right to protect itself against contempt? All that was necessary for the Marshal to state in his answer was that he held the prisoner by the authority of the legislative body. It was not required that he should go into the whole question of the degree of authority possessed by the Councils. It was plain that Mr. Dole did not sign as Sanford B. Dole but as the President of the Executive and Advisory Councils. It is not contended that the legislative body would have proceeded to try Mr. Sheldon without stating the charge against him. The Court would decide whether the issuance of the warrant was the act of the presiding officer or that of the Executive and Advisory Councils as a legislative body. He maintained that it was an act of the Councils within their lawful powers. The writ should be dismissed and the prisoner remanded, as there was nothing contemplated by the Government which would deprive Mr. Sheldon of any of his rights. Mr. Hatch cited authorities to the effect that the judiciary could not interfere in action against contempt by a legislative body holding powers to that end, excepting where it appeared that there was nothing in the charge which by reasonable interpretation could be regarded as contempt. These citations were from cases where the sentence was being actually carried out, but they were much more forcible when applied to a case like that in hand where the writ intervened in merely preliminay proceedings.

W. O. Smith, Attorney-General, contended that the Provisional Government was the government of the country, and the Executive and Advisory Councils constituted a legislative body. He quoted authorities from United States books to show that the power of legislative bodies to protect themselves from contempt was a constitutional principle. It was not necessary to set forth in the warrant of what the contempt consisted, and this Court had no jurisdiction further than to ascertain if the warrant was regularly issued by the legislative body.

Mr. Ashford, in reply, said he had heard from his youth up that the devil was accustomed to quote scripture to suit his own purposes. It now appeared that the Provisional Government could misquote judicial scripture against the liberty of one of the people. One of the decisions quoted by the Attorney-General had been over-ruled by the Supreme Court of the United States. Still he did not think that this point was in the question. Citations relating to commitments in England in the dark ages had been made by the Government counsel, but he would quote from American precedent in Cooley’s Constitutional Limitations. There it was shown that the power of Legislatures to punish for contempt was limited to cases occurring in their presence, and calculated to impede them in the discharge of public business. Counsel had laid stress on “the power of this Government.” What does he mean by the power of this Government? The power to do as they please? If so, how much of the Constitution will be left by sundown this evening? The question is, Have we a Constitution or have we not. If we have it is there in that book, in full force excepting what has been done away by the Proclamation. He admitted the monarch was dead—dead as a mackerel. But unless we have a Constitution left there is anarchy. It was his contention that Act 4 was null and void. If not then the Constitution falls to the ground. Those Councils sitting in that small chamber there with closed doors and guarded by foreign bayonets outside could no more give themselves power to pass general legislation, than the Hawaiian Legislature two months ago could have authorized the Planters’ Labor & Supply Co., or that estimable body known as the “Drei Hundred,” to sit with it and assist in making laws. Mr. Ashford was arguing that our reasons for actions should under present circumstances, especially, be drawn from the United States.

Mr. Hatch—We’re not there yet.

Mr. Ashford—No, and I’m afraid if matters go on in the direction they appear to have taken, according to the case in court, we shall not get there for a good while. The case that opposite counsel supposes is here now. Here is a man in court deprived of his liberty, we contend, without authority of law. A strong reason for the Court’s taking jurisdiction is the indefinite tenure of the Provisional Government. If they were sure that the present condition was only to last for a day, or even a week, there would not be the same reason for opposing the arbitrary assumption of power. What safety was there for any person in the community if a simple order from President Dole could land one in prison? The order of arrest from the Councils’ attached to the answer had no more authority than Mr. Dole’s warrant. There was no offense against any law of this country mentioned in the warrant. The members of the Councils were very honorable gentlemen, but they had got themselves very badly mixed up in matters of law. They might be expert judges of sugar and soap but they showed but slight knowledge of constitutional principles. There was nothing, he contended, in the argument of opposite counsel to show that President Dole had any power to issue such a warrant. According to the authorities he had quoted there could be no contempt committed against the Legislature outside of its presence. There was no authority for regarding the Provisional Government as a legislative body, excepting it contained such in the Advisory Council sitting alone.

As Mr. Ashford concluded counsel on both sides referred the Court to authorities on their respective sides. The Court asked for further argument on the following questions: (1) If the Councils had not the right to enact Act 10 (contempt), had they any more right to enact Act 4 (powers of legislation)? (2) Have they any authority to so amend the terms of their own Proclamation, as for instance, by calling in the Executive Council to sit with the Advisory Council as a part of the Legislative body?

Mr. Hatch took the ground emphatically that the Proclamation did not purport to present a complete system of government. Indeed, that idea was expressly contradicted by the clause reserving to the Provisional Government further powers as might be necessary. As a Legislature the Councils have full power to enact laws. The acts of the Councils are superior to prior laws where there is no conflict with them.

Judge Frear—Is not the Proclamation itself to be considered a Constitution?

Mr. Hatch replied that it was not to be so construed and it did not purport to be a Constitution. It was rather a “string of causes” which led up to the revolution to meet the necessities of the occasion.

Mr. Ashford concluded the argument by saying that the statements of opposite counsel showed the only Constitution under which the people were living was such remnant of the Constitution of 1887, as the eighteen gentlemen composing the Councils might in their moods of the moment choose to leave us. The existing government had not undertaken to limit itself in anyway. It was a most humiliating confession for an Attorney-General to plead in any civilized country in the nineteenth century, that our legislation is at the caprice of eighteen men.

Judge Frear promised an early decision.

(Daily Bulletin, 2/17/1893, p. 3)

LIBERTY OF THE SUBJECT.

The Daily Bulletin, Volume V, Number 653, Page 3. February 17, 1893.

4 thoughts on “Kahikina Kelekona, John G. M. Sheldon, editor of the Hawaii Holomua, arrested for speaking, 1893.

  1. O John Kahiina Kelekona ko’u kupunakane kualua. He kanaka kupaa naue ole ia ma hope o ka hoihoi hou ‘ia ana o ka ea ponoi i ke aupuni o Hawaii. O Kaluaikoolau laua o Nawahiokalaniopuu na puke o na moho wiwoole e hoike kuee ana i ka hewa nui o na alakai Piki i ia manawa aku hoi. Aole nae i moakaka loa ia’u i ko Tutu mau manao i hoolaha ‘ia ma ka nupepa. No laila, ke mahalo aku nei keia i ka oukou hana maiau e hoopuka hou ana i keia atikala no ka lehulehu e heluhelu pono ai. No’u iho no ka hauoli i ke ao ana i ua atikala nei…Mahalo a nui loa aku no…

  2. Aloha.
    Just wondering if anyone can clarify the two sentences immediately below: AFTERNOON At 1.05 the court resumed.

    “was the Government of the country. Not Government of the country.”

    Seems a little puzzling? Mahalo.

    • Sorry about that, it was a typing error on my part. It is definitely always a good idea to refer to the original. I corrected the error, and uploaded an image of the original article as well!

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