
    IN THE MATTER OF THE PETITION OF WILLIAM H. MARSHALL, for a writ of habeas corpus.
    
    Decided: October 23, 1900.
    1. Upon an application for a writ of habeas corpus on tbe ground ■that the petitioner is deprived of bis liberty contrary to the Fifth and Sixth Amendments to the Constitution of the United States, in that 'he had been convicted of an infamous crime without the indictment or presentment of a Grand Just and by a verdict of less than twelve jurors, where it appeared that after the annexation of Hawaii to the United States and before the 14th day of •June, 1900 (when the Aot of Congress for the government of the Territory of Hawaii went into effect), the petitioner was con•victed in the Circuit Court of the Territory of the offense of publishing a lib.el in the first degree by the verdict of nine out of twelve jurors, under Section 1345 of the, Civil Laws of Hawaii and sentenced to hard labor for six months under Section 305 of the Penal Laws of Hawaii; and where by Chapter 1, p. 52, Section 3 of the said Penal Laws it is provided that “felonies or crimes mean such offenses as are punishable with death or imprisonment •for a longer period than two years or by the forfeiture of any civil or political right * * and Where it is further provided by Section 304 of the said Penal Law® of Hawaii that the degree cf the libel shall be found by the jury, the court or “the magistrate authorized to decide on the facts,” Section 584 of the said Penal Laws giving the District Magistrate jurisdiction for the “prosecution, trial and sentence of any person charged with * * * any misdemeanors * * * ,”
    
      Held, that the offense whereof the petitioner was convicted and sentenced was a misdemeanor under the laws of Hawaii, and was not an infamous crime within the meaning of the Fifth Amendment to the Constitution of the United States.
    2. The Sixth Amendment to the Constitution of the United States applies only to trials of offenses which are triable by what is known as a common law jury, and are above the grade of misdemeanors, which latter offenses are peculiarly within the jurisdiction of magistrates sitting alone, and do not necessarily require a jury.
    3. The petitioner not having been accused of an infamous crime, had no constitutional right to a presentment or indictment by a Grand .Jury under the Fifth Amendment to the Constitution of the United States.
    4. A verdict of a jury of nine out of twelve jurors was authorized by the law of Hawaii, which law in respect to this class of cases was not repealed until June 14, 1900, and after the proceedings1 institute! in this matter.
    5. While the United States District Court has discretion to summarily discharge 'on habeas eorpus any person restrained of his liberty under a judgment of a territorial court, yet it is only in extreme cases that the District Court will exercise such, discretion; but will generally leave the petitioner to his remedy by writ of error from the Supreme Court of the United States.
    0. Where no Federal question is presented for the consideration of the United States Court on an application for a writ of habeas corpus, said Court has no jurisdiction to entertain the writ.
    Habeas Corpus.
    
      J. T. De Bolt, attorney for petitioner.
    
      George D. Gear, amicus curiae, (for petitioner.)
    
      E. P. Dole, Attorney General, for tbe Territory of Hawaii.
    
      
      John G. Baird, IJ. S. District Attorney, for the Territory of Hawaii.
    
      A. 8. Hartwell, W. 0. Smith and Abraham Lewis, Jr. amioi curiae (for respondent.) ,
   Estee, J.

The petitioner, William H. Marshall, filed his petition for a writ of habeas corpus on October 11th, 1900, setting up the following facte:

That he is a citizen of the Hnited States and of the Territory of Hawaii; and that he is now and since the 9th day of October, 1900, has been unlawfully restrained of his liberty and imprisoned by one Arthur M. Brown, the Hig;li Sheriff of the Territory of Hawaii, and that such imprisonment “is illegal and in violation of the Constitution of the Hnited States of America;” that the illegality therof consists in this, touvit: that on the 18th day of May, A. D. 1900, the petitioner was put to his trial in a criminal case “in the Circuit Court of the First Judicial Circuit, Hawaiian Islands, wherein the Republic of Hawaii was plaintiff and said William II. Marshall was defendant, he being charged with the offense of publishing a libel in the first degree in Honolulu, Island of Oahu, Hawaiian Islands, on or about August 27th, 1899.”

The character of the pleading upon which he was so charged is not set forth in tire petition but it is alleged that he was put upon his trial “without a presentment or indictment by a Grand Jury, contrary to the Fifth Amendment of the Constitution of the United States,”, and that tire offense charged is “an infamous crime;” that upon the resulting trial, a verdict was returned by nine members of the jury, three jurors dissenting therefrom, finding the petitioner “guilty of libel in the first degree,” which verdict it is alleged “is contrary to the Sixth Amendment to' the Constitution of the Hnited States;” that on the 18th day of May, 1900, judgment was rendered upon said verdict and the said Circuit Court sentenced the petitioner to' imprisonment “at hard labor for the term of six months;” the petitioner taking the proper exceptions. The several steps followe'di ini taking, the case to tiie Supreme Court of the Territory of Hawaii on appeal are recited, concluding with the statement thiat “the said Supreme Court of the Territory of Hawaii in said case on thei 9th day of October, A. D. 1900, rendered its decision in said causo oveaTidingi said exceptions and remanding the defendant to prison.”

It is further set forth, that the cause or pretence of said imprisonment is “by virtue of a certain void and illegal process issued out of the said Circuit Court * * * to-wit: a certain alleged mittimus based upon said void and illegal charge, verdict and judgment, whereby the said High Sheriff was and iisi ordered to take petitioner into custody and to cause the said sentence and judgment to he executed.”

The petition concludes Avith the usual prayer for the Avrit of habeas corpus to issue. A writ Avas issued, returnable to this Court on October 18th, 1900, at 10 oiclock a. m., at which time the body of the petitioner wasi produced in Court and respondent filed his return to the AArrit. Briefly, respondent justifies by sboAving “that the said "William II. Marshall is now and h'as been since tire 9th day of October, A. D. 1900, detained and confined in the Oahu jail under and by virtue of the authority of a certain mittimus! to the said High Sheriff directed,” a copy of which is attached to and made a part of thei said return.

It was admitted on the argument by all the counsel engaged therein both for petitioner and respondent, that libel in thei first degree, the offensla charged against the petitioner, was a misdemeanor under the penal statutes of the Territory of Hawaii,- and that petitioner w-asi not charged or convicted of “'an infamous crime.”

The petitioner bases his claim for his discharge under the writ of habeas corpus applied for, upon the ground that, be was tried-, convicted and sentenced “Avithout a presentment or. indiotment by a grand jury;” that he was found guilty by a verdict of nine out of a jury of twelve; that thei offense charged' against him was “an infamous crime;” and that the whole pro^ceeding of the territorial courts was ini violation of and contrary to the rights secured to him by tire Fifth and Sixth1 Amendments to the Constitution of the United States.

The question presented is: Can this Court, except in very rare and extreme oases, review- on habeas corpus the verdict and judgment of the highest territorial Court of Hawaii in a criminal case wherein a constitutional question is claimed to be involved, and overrule the action of that Court?

From the date of the passage of the Judiciary Act of 1867 until now, the Supreme Court of the United States, while always holding] that a United States District or Circuit Court had the power in extreme cases to snmmarily discharge a party from custody who- is restrained of his liberty in violation of the Constitution of the United States, yet the same Court, has uniformly held that except in -the most extrema eases, thei true course for the petitioner was to- sue out -a, writ of error from the Supreme Court of thei United States, and thus! have the constitutionality of the conviction settled by tire only Court in the land whose judgment on constitutional questions is final. Tbis rule was adopted because, -although the discretionary power existed, yet it was of more than do-ubtfnl propriety for a single United States District or Circuit Judge toi interfere with the judicial procedure of a state or territorial Court when dealing with criminal cases.

It was held in the case of New York v. Eno, 155 U. S. 89, that:—

While the United States Courts had the discretionary power to issue the writs of habeas corpus, and to summarily dispose of a party as law and justice requires-, “yet that discretion should he exercised in the light of the relations existing under our system of government between the judicial tribunals of the Union and of tliei States; and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between Courts equally bound toi guard and protect rights secured by the Constitution. * * *”
And again — “Where a- Circuit Court erred in granting the prayer of the petition, the 'Supreme Court would reverse its action.”
The Court holding in that case, “thiatl the judgment is reversed with directions to dismiss thei writ of habeas corpus and to remand the accused to the custody of the proper authorities.”

It must be admitted as ¡Settled law, that this Court like all subordinate Courts is bound] by precedent and peculiarly soi where the question involved is one of constitutional law. The Supreme Court of the United States in the very recent case of Markuson v. Boucher, 175 U. S. 184, seems to have decided the question of jurisdiction involved in this ease beyond di®^ puto. It held as follows:

“We have frequently pronounced against the review by habeas corpus of the judgments of State Courts in criminal cases because some right under the Constitution of the United States was alleged to have been denied by -the person convicted:, and have repeatedly decided the proper remedy was by writ of error * * * We lately stated the rule,” said the Court, “and. the reasons for it in tliei cases of Baker v. Grice, 169 U. S. 284, and Tinsley v. Anderson, 171 U. S. 101-4.”

The Court them, proceeds to> quota approvingly and at length from the latter decision as well as from Baker v. Grice and addis that:—

“The jurisdiction is more delicate, 'the reasons against its exercise stronger when a single judgei is invoked toi reverse the decision of the highest court of a state in which the constitutional rights of a prisoner donlcl have been claimed, and may be, were rightly decided, or if not rightly decided could be reviewed and redressed by a, writ of error from this Court.”

There is a long* line of authorities sustaining the same proposition that, except in peculiarly urgent cases, no United' States Circuit or District Court will discharge a prisoner by habeas clorpws in advance- of the usual and orderly course, by writ of error from tire. Supreme Court of the United States. (Pepke v. Cronan, 155 U. S. 100; In re Frederich, 149 U. S. 70-6; Whitten v. Tomlinson, 160 U. S. 231, 242; In re Duncan 139 U. S. 449, 454; In re Wood, 140 U. S. 278, 289; Cook v. Hart, 146 U. S. 183; In re Loney, 134 U. S. 372.

So also, in the case of In re Spiolder, 43 .Fed. Bep. 653, where it wasi held:—

“That where it appears the petitioner is held under the judgment of a State Court of competent jurisdiction before this Court should grant him a discharge it should be made, to appear that the illegality of his detention is heyond fair question, and in all cases where tire- pivotal point has not been finally decided by the Supreme! Court, hut Still remains a debatable question, the Circuit Court should not discharge the prisoner * * * in such cases the Federal question can bei readily presented to the Stupreme Count, and as there exists this plain and proper remedy, it should be followed.”

The above decisions which seiean to all relate to the: States, apply Avith equal force to the Territories.

See Shute v. Keyser, 149 U. S. 649, Avhere it AVasheld: —

“Ah appeal or writ of error lies to. this Court (the Supreme Court of thel U. S-.) from the judgments or decrees of the Supreme Courts of the Territories, except in eases Avhere the judgments of the Circuit Courts of Appeal arei made, final.”

See also Astec Mining Co. v. Ripley, 151 U. S. 79.

For the reasons above given, the Court holds that it cannot assume, jurisdiction of this case. But is there a proper Federal question involved herein? If there is not, then there is an additional reason for mot assuming jurisdiction because it is settled that a writ of habeas Corpus must be denied if it is apparent that the only result of its issue would be the remanding of the prison,ex' to custody. In re Boardman, 169 U. S. 39.

The conditions which existed on these Islands when annexed to the United States ware unusual. This1 Territory had a civilization. peculiar to itself, a government republican in form, with a written Constitution, civil axxd penal statutes, courts of justice with established jtmsdiction. It had public schools and other institutions of learning1 and laws enforcing compulsory education. It was not mere territory lying in mid-ocean unused, buit ready for man’s use. It was a free, enlightened state possessing* all the attributes of sovereignty, and whew with its consent, the Islands wean annexed by the: United States, not only the lands., but the people with their laws and customs were annexed; and by the well established law of nations, these laws and customs remained in force until new laws were enacted for the govemxnent of the Territory. Sec. 19, Sutherland on Stat. Construc., page 19; Black on Constitutional Law, page 208; American Ins. Co. v. Canter, 1 Pet. 511, 541; Cross et al. v. Harrison 16 How. 164, 184.

These Islands, although originally a monarchy, had become a republic and the people wiere somewhat versed in the principles of self government. So much was this so, that Congress waited nearly two years before enacting a law for the government of the Territory. In the meantime, no: lav's1 were enforced in the Territory of Hawaii but the laws of the Republic of Hawaii. The strong arm of .the Eedenal government was not felt here. The former laws and judicial procedure remained and continued in force: until the 30th day of April, 1900, when Congress passed the Enabling Act which went into effect on the: 14th day of June, 1900. This Act though providing* for a different form of government for the new Territory of Hawaii, continued in force many of the former laws of the Islands and prescribed especially:

“That all suits at law and in equity, prosecutions and judgments existing prior to. the passage of this Act shall continue to be as effectual as if this Act had not. been passed. (S'ee. 10, paga 6. “Act toi provide a government for the Territory of Hawaii.”)

The offense charged and described in the petition for the writ of habeas corpus is libel, which under the laws of Hawaii is a misdemeanor. Section 305 of the Penal Laws (chap-. 32, page 135) fixes 'the maximum punishment upon conviction for libel in the first degree at not more than one year’s imprisonment at hard labor or by fine not exceeding one thousand dollars.

Felony is defined in the same laws, chapter 1, page 52, as follows:

“See. 8. The terms felony and crime are within, the meaning of the provisions of this Code symononions, and mean sudbi offenses as are punishable with death or imprisonment for ai longer period than two years or by the forfeiture of any civil or political right, and also larceny. Any offense not appearing to he a felony or crimei is a misdemeanor.”

Section 304 of tire, same laws1, divides the offense of libel into “two degrees and the degree: is toi he found by the jury, or determined by 'the Court or magistrate authorized toi decide on the facts.”

Section 584 gives district magistrates jurisdiction “for the prosejeution, trial and sentence; of any person charged with either of the following offenses, namely: any misdemeanor.* * *”

It thus appear® that there may he a trial and conviction for libel by a Court or magistrate without the intervention of a jury. There was, however, in this case a trial by jury as shown by the petition, the grievance set up being that the verdict of guilty was found and returned by nine jurors, whereas three jurors dissented “which verdict” the petitioner alleges, “was and is contrary to the Sixth Amendment -of the Constitution of the United State?.”

Section 3, Article 6 of thei Constitution of the Republic of Hawaii, authorized thei Legislature to fix the number of jurors required toi agree on a verdict in “offenses less than felonies.”

Li pursuance of this constitirtiooal provision there was enacted by the Legislature of the Republic of Hawaii (See. 1345, Civil Laws), a law providing that “no juay, for the trial of any case, civil or criminal, shall bei less than, twelve in number; but when nine of such jury shall agree upon a verdict, they may render the same, and such verdict shall be as valid and binding upon the panties as if rendered) by all twelve.” (

The first point urged upon the Court was that the petitioner had been convicted of “an infamous crime,” but upon the argument it was admitted that petitioner was not convicted of ar famous crime but of a misdemeanor which seems to bei born., by tbe statutes of the Republic of Hawaii herein before referred to.

At the common law the crimes which rendered a person infamous were treason, felony and orimen falsi. U.S. v. Block, 4 Sawy. 211. In the same case it is held that it is not the character of the punishment, but the nature of the act that makes the dime infamous.

The Sixth Amendment of the Constitution manifestly applies only to trials of criminal offenses which are triable only by jury and by what is known as a common law jury, and are above the grade of misdemeanors, which latter -offenses are peculiarly within the jurisdiction of magistrates sitting alone, and doi not necessarily require a jury.

As before stated, Section 83 of the Act of Congress for the government of the Territory of Hawaii, in part reads as follows:

“'That the laws of Hawaii relative to the judicial department including civil 'and criminal procedure * * * are continued in force subject to modification by Congress or the Legislature * * * No person shall be convicted in any criminal case except by unanimous verdict of the jury.”
“One of the amendments of the Enabling Act was to repeal the law authorizing less than unanimous verdicts in criminal easea But this repealing clause) only took effect when the Enabling’' Act became a law, towit: June 14th, 1900, while this petitioner was convicted May 18th, 1900.”

It was held in the case of Maxwell v. Dow, 176 U. S. 581, that: — ■

“Whether a trial in criminal eases not capital shall be by a jury composed of eight instead of twelve jurors and whether, in case of an infamous calme, a person shall be only liable to' be tried after* presentment or indictment by a grand jury, ar'e proper to be datemiined by the citizens of oaich state for themselves, and do not come within the fourteenth amendment to the Constitution so long as all perdone within t-liei jurisdiction of the Sítate’ are made liable to be proceeded against by the siame kind of pror cedure', and ha have the samei kind of trial, and equal protection of the laws is secured to them:.”

The Court finds that petitioner’s remedy is by writ of error from the Supreme Court of the United States; that the offense whereof the petitioner was convicted and sentenced was a misdemeanor and not an “infamous cairn e;” that there was noi constitutional right undea" the fifth aanendment to -the Constitution of the United States to a presentment or an indictment by a grand jury in this case; and that a verdict of nine, out of twelve jurors was authorized by the law of Hawaii which law in respect to this class of cases was not repealed until June 14, 1900, and after the trial of this oasei.

It appearing that no Federal question is! presented for the consideration of this Court, it is without jurisdiction to entertain the petition for the writ of habeas carpus.

Let the petitioner1 he remanded.  