Hawaii v. Mankichi , 23 S. Ct. 787 ( 1903 )

Mr. Justice Brown,

after making the foregoing statement, 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. 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 fulfillment of the' treaties so extinguished, and not inconsistent with-this joint resolution nor contrary to the Constitution of the Untied 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.¹ Though the resolution was passed July 7, the 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 remained under 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. 141. By this act the Constitution was formally extended to these islands, sec. 5, and special provisions made for empanelling grand juries and for unanimous verdicts of petty juries. Sec. 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; American Publishing Co. v. Fisher, 166 U. S. 464; Thompson v. Utah, 170 U. S. 343, 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; and perhaps allow verdicts to be rendered-by less than a unanimous vote. American Publishing Co. v. Fisher, 166 U. S. 464; Thompson v. Utah, 170 U. S. 343.

In fixing upon the proper construction tó 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 modelled 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 upon substantially the same principles which prevailed 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. 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 Fifth and Sixth 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 New lands, 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: “ 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: “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 doctrine more broadly stated than in United States v. Kirby, 7 Wall. 482, in .which an act of Congress, providing for the punishment of any person who “ shall knowingly and wilfully obstruct or retard the passage of the mail, or any driver or carrier,” was held not to apply to a state officer who had 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 tbits 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 be 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.

In Atkins v. Disintegrating Co., 18 Wall. 272, it was held that a suit in personam in admiralty was not a “civil suit” within the eleventh 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 In re Louisville Underwriters, 134 U. S. 488. So in Heydenfeldt v. Daney Gold &c. Co., 93 U. S. 634, 638, 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 thé causes which induced its enactment.” To the same effect are the Church of the Holy Trinity v. United States, 143 U. S. 457, in which many cases are cited and reviewed, and Lau Ow Bew v. United States, 144 U. S. 47, 59. In this latter ease it was held that a statute requiring the permission of the Chinese government, and the identification of “ every Chinese person ‘other than a laborer, who may be entitled by treaty or act of Congress to come within the United States,” did not apply to “ Chinese merchants already domiciled in the United States, who, having left the country for temporary purposes, animo revertendi, seek to reenter it on their return to their business and their homes.” Said the Chief Justice: “ Nothing is . better. settled than that statutes should .receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion.”

Two recent English cases are instructive in this connection: In Plumstead Board of Works v. Spackman, L. R. 13 Q. B. D. 878, 887, it was said by the Master .of Eolls, afterwards Lord Esher: “ If there áre no means of avoiding such an interpretation of the statute,” (as will amount to a great hardship,) “ a judge must come to the conclusion that the legislature by inadvertence has committed an act of legislative injustice; but to my mind a judge ought to struggle, with all the intellect that he has, and with all the vigor of mind that he has, against such an interpretation of an act of Parliament; and, unless he is forced to come to a contrary-conclusion, he ought to assume that it is impossible that the legislature could have so intended.” See also Ex parte Walton, L. R. 17 Ch. D. 746.

Is there any room for construction in this case, or, are the words of the resolution so plain that construction is impossible ? There are many reasons which induce us to hold that the act was not intended to interfere with the existing practice when such interference would result in imperiling the peace and good order of the islands. The main objects of the resolution were, 1st, to accept the cession of the islands theretofore made by the Republic of Hawaii, and to annex the same “ as a part of the territory of the United States and subject to-the- sovereign dominion thereof;” 2d, to abolish all existing treaties with various nations, and to recognize only treaties between the United States and such foreign nations; 3d, to continue the existing laws and customs regulations, so far as they were not inconsistent with the resolution, or contrary to the Constitution, until Congress should otherwise determine. From the terms of this, resolution it is evident that it was intended to be merely temporary and provisional; that no change in the government was contemplated, and that until further legislation the Republic of Hawaii continued in existence. Even its name was not changed until 1900, when the “Territory of Hawaii” was organized. The laws of the United States were not extended over the islands until the organic act was passed on April 30, 1900, when, so careful was Congress not to disturb the existing condition of things any further than was necessary, it was provided, sec. 5, that only “the laws of the United States, which are not locally inapplicable, shall have the same force arid effect within the said Territory as elsewhere in the United States.” There was apparently some discretion left to the courts in this connection. Indianapolis &c. R. R. Co. v. Horst, 93 U. S. 291, 299. The fact already mentioned that Congress in this organic act inserted a provision for the empanelling of grand juries and for the unanimity of verdicts indicates an understanding that the previous practice bad been pursued up to that time, and that a change in the existing law was contemplated.

Of course, under the Newlands resolution, any new legislation must conform to the Constitution of the United States, but how far the exceptions to the existing municipal legislation were intended to abolish existing laws, must depend somewhat upon circumstances. 'Where the immediate application of the Constitution required no new legislation to- take the place of that which the Constitution abolished, it may be well held to have taken immediate effect; but where the application of a procedure hitherto well known and acquiesced in, left nothing to take its place, without new legislation, the result might be so disastrous that we might well say that it could not have been within the contemplation of Congress. In all probability the contingency which has actually arisen occurred to no one at the time.- If it had, and its consequences were foreseen, it is incredible that .Congress should not have provided against it.

If the negative words of the resolution, “ nor contrary to the Constitution of the United States,” be construed as imposing upon the islands every provision of a Constitution, which must have been unfamiliar to a large number of their inhabitants, and for which no previous preparation had been made, the con'sequences in this particular connection would be that every criminal in the Hawaiian Islands convicted of an infamous offence between August 32, 1898, and June 14,1900, when the' act organizing the territorial government took effect, must be set at large ; and every verdict in a civil case rendered by less than a unanimous jury held for naught.' Surely such a result could not have been within the contemplation of Congress. It is equally manifest that such could not have been the intention of the Republic of Hawaii in surrendering its autonomy. Until then it was an independent nation, exercising all the powers and prerogatives of complete sovereignty. It certainly could not have anticipated that, in dealing with another independent nation, and yielding up its sovereignty, it had denuded itself, by a negative pregnant, of all power of enforcing its criminal laws according to the methods which had been in vogúe for sixty years, and was adopting a new procedure for which it had had no opportunity of making preparation. • The. legislature of the Republic had just adjourned, not to convene again until some time in 1900, and not actually convening until 1901. The resolution on its face bears evidence of having been intended merely for a temporary purpose, and to give time to the Republic to adapt itself to such form of territorial government as should afterwards be adopted, in its organic act.

The language of Mr. Buchanan, then Secretary of State, in holding that the military government established in California did not cease to exist with, the treaty of peace, but continued as a government de facto until Congress should provide a territorial government, is peculiarly applicable to this case. “ The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting; to the dominion of the strongest.” 16 How. 184.

It is insisted, however, that as the common law of England had been adopted in Hawaii by the Code of 1897, it was within the power of the courts to summon a grand jury, and that such' action might have been taken and criminals tried upon indict.ments properly found, and convicted by unanimous verdict. The suggestion is rather fanciful than real, since section 1109 of the Code of 1897, adopting the common law of England, contained a proviso that “ no person shall be subject to criminal proceedings except as provided by the Hawaiian laws.” These laws provided expressly, sec. 616, Penal Laws of 1897, as follows: “ The necessary bills of indictment shall be duly prepared by a legal prosecuting officer, and be duly presented to the presiding judge of the court before the arraignment of the accused, and such judge shall, after examination, certify upon each bill of indictment whether he finds the same a true bill or not.” The question thus squarely presented to every judge in the Eepublic was, whether- he was bound to summon a grand jury under the New-lands resolution, when no provision existed by law for empanel-ling the same or their payment, and when in so doing he was obliged to ignore the plain statute of his own country.

It is not intended here to decide that the words “ nor contrary to the Constitution-of the United States” are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing provisions conducive to the peace- and good order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: “Would municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legislature and without process, or confiscating private property for public use without compensation,U-emain in force after an annexation of the Territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution ?” We would even go farther, and say that most, if not all, the privileges and immunities contained in the bill of U^bts of the Constitution were intended to apply from the moment of annexation ; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature, but- concern merely a method of procedure which sixty years of practice had shown to be suited, to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property and their well-being.

Inasmuch as we are of opinion that the status of the islands and the powers of their provisional government were measured by the Newlands resolution, and the case has been argued upon that theory, we have not deemed it necessary to consider what would have been its position had the important words “ nor contrary to the Constitution of the United States ” been omitted, or to reconsider the questions which arose in the Insular Tariff oases regarding the power of Congress to annex territory without at the same time extending the Constitution over it. Of course, for the reasons already stated, the questions involved in this case could arise only from such as occurred between the taking effect of the joint resolution of July 7, 1898, and the act of April 30, 1900, establishing the- territorial government.

The decree of the District Court for the Territory of Hawaii must he reversed, and the case remanded to that court with instructions to dismiss the petition.