Territory of Hawaii v. Osaki Mankichi

• Decision Date: 01 June 1903
• Docket Number: No. 219,219
• Citation: 47 L.Ed. 1016,23 S.Ct. 787,190 U.S. 197
• Parties: TERRITORY OF HAWAII, Appt. , v. OSAKI MANKICHI. 1
• Court: U.S. Supreme Court

190 U.S. 197

23 S.Ct. 787

47 L.Ed. 1016

TERRITORY OF HAWAII, Appt.,

v OSAKI MANKICHI.¹

No. 219.

Argued March 4, 5, 1903.

Decided June 1, 1903.

This was a petition by Mankichi for a writ of habeas corpus to obtain his release from the Oahu convict prison, where he is confined upon conviction for manslaughter, in alleged violation of the Constitution, in that he was tried upon an indictment not found by a grand jury, and convicted by the verdict of nine out of twelve jurors, the other three dissenting from the verdict.

Following the usual course of procedure in the Republic of Hawaii, prior to its incorporation as a territory of the United States, the prisoner was tried upon an indictment much in the form of an information at common law, by the attorney general, and indorsed 'a true bill, found this 4th day of May, A. D. 1899. A. Perry, first judge of the circuit court,' etc.

From an order of the United States district court, discharging the prisoner, the attorney general of the territory appealed to this court.

Messrs. Edmund P. Dole and Solicitor General Richards for appellant.

[Argument of Counsel from pages 199-203 intentionally omitted] Messrs. Frederic R. Coudert, Jr., Paul Fuller, George A. Davis, F. M. Brooks, and Charles Fred Adams for appellee.

[Argument of Counsel from pages 203-209 intentionally omitted]

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Mr. Justice Brown delivered the opinion of the court:

The question involved in this case is an extremely simple one. The difficulty is in fixing upon the principles applicable to its solution. By a joint resolution adopted by Congress, July 7, 1898 (30 Stat. at L. 750), known as the Newlands resolution, and with the consent of the Republic of Hawaii, signified in the manner provided in its Constitution, the Hawaiian islands and their dependencies were annexed 'as a part of the territory of the United States, and subject to the sovereign dominion thereof,' with the following condition: 'The municipal legislation of the Hawaiian islands, not enacted for the fulfilment of the treaties so extinguished, and not inconsistent with this joint resolution nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine.' The material parts of this resolution are printed in the margin.² Though the resolution was passed July 7, the

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formal transfer was not made until August 12, when, at noon of that day, the American flag was raised over the government house, and the islands ceded with appropriate ceremonies to a representative of the United States. Under the conditions named in this resolution, the Hawaiian islands lands remained under

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the name of the 'Republic of Hawaii' until June 14, 1900, when they were formally incorporated by act of Congress under the name of the 'territory of Hawaii.' (31 Stat. at L. 141, chap. 339.) By this act the Constitution was formally extended to these islands (§ 5), and special provisions made for empaneling grand juries, and for unanimous verdicts of petty juries. (§ 83.)

The question is whether, in continuing the municipal legislation of the islands not contrary to the Constitution of the United States, it was intended to abolish at once the criminal procedure theretofore in force upon the islands, and to substitute immediately, and without new legislation, the common law proceedings by grand and petit jury, which had been held applicable to other organized territories (Webster v. Reid, 11 How. 437, 13 L. ed. 761; American Pub. Co. v. Fisher, 166 U. S. 464, 41 L. ed. 1079, 17 Sup. Ct. Rep. 618; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620), though we have also held that the states, when once admitted as such, may dispense with grand juries (Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292), and perhaps also allow verdicts to be rendered by less than a unanimous vote (American Pub. Co. v. Fisher, 166 U. S. 464, 41 L. ed. 1079, 17 Sup. Ct. Rep. 618; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620).

In fixing upon the proper construction to be given to this resolution, it is important to bear in mind the history and condition of the islands prior to their annexation by Congress. Since 1847 they had enjoyed the blessings of a civilized government, and a system of jurisprudence modeled largely upon the common law of England and the United States. Though lying in the tropical zone, the salubrity of their climate and the fertility of their soil had attracted thither large numbers of people from Europe and America, who brought with them political ideas and traditions which, about sixty years ago, found expression in the adoption of a code of laws appropriate to their new conditions. Churches were founded, schools opened, courts of justice established, and civil and criminal laws administered, and civil and criminal laws administered upon in the two countries from which most of the immigrants had come. Taking the lead, however, in a change which has since been adopted by several of the United States, no provision was made for grand juries, and criminals were prosecuted

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upon indictments found by judges. By a law passed in 1847, the number of a jury was fixed at twelve, but a verdict might be rendered upon the agreement of nine jurors. The question involved in this case is whether it was intended that this practice should be instantly changed, and the criminal procedure embodied in the 5th and 6th Amendments to the Constitution be adopted as of August 12, 1898, when the Hawaiian flag was hauled down and the American flag hoisted in its place.

If the words of the Newlands resolution, adopting the municipal legislation of Hawaii, 'not contrary to the Constitution of the United States,' be literally applied, the petitioner is entitled to his discharge, since that instrument expressly requires (Amendment 5) that 'no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury;' and (Amendment 6), that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.' But there is another question underlying this and all other rules for the interpretation of statutes, and that is, What was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail, even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in Smythe v. Fiske, 23 Wall. 374, 380, 23 L. ed. 47, 49: 'A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.' A parallel expression is found in the opinion of Mr. Chief Justice Thompson of the supreme court of the state of New York (subsequently Mr. Justice Thompson of this court), in People v. Utica Ins. Co. 15 Johns. 358, 381, 8 Am. Dec. 243: 'A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.'

Without going farther, numerous illustrations of this maxim are found in the reports of our own court. Nowhere is the

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doctrine more broadly stated than in United States v. Kirby, 7 Wall. 482, 19 L. ed. 278, in which an act of Congress, providing that if 'any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier,' was held not to apply to a state officer who held a warrant of arrest against a carrier for murder, the court observing that no officer of the United States was placed by his position above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention when accused of felony. 'All laws,' said the court, 'should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.' A case was cited from Plowden, holding that a statute which punished a prisoner as a felon who broke prison did not extend to a prisoner who broke out when the prison was on fire, 'for he is not to hanged because he would not stay to be burned.' Similar language to that in Kirby's Case was used in Carlisle v. United States, 16 Wall. 147, 153, 21 L. ed. 426, 429.

In Atkins v. Fibre Disintegrating Co. 18 Wall. 272, 21 L. ed. 841, it was held that a suit in personam in admiralty was not a 'civil suit' within the 11th section of the judiciary act, though clearly a civil suit in the general sense of that phrase, and as used in other sections of the same act. See also Re Louisville Underwriters, 134 U. S. 488, 33 L. ed. 991, 10 Sup. Ct. Rep. 587. So in Heydenfeldt v. Daney Gold & Silver Min. Co. 93 U. S. 634, 638, 23 L. ed. 995, 996, it was said by Mr. Justice Davis: 'If a literal interpretation of any part of it [a statute] would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment.' To the same effect are the Church of Holy Trinity v. United States, 143 U. S....