...Again, the court says in its opinion in the Peacock case that if we had been ceded to the United States by a treaty of peace "would the Constitution extend to it forthwith ex propria vigore with the result that crime could not be suppressed because there was no provisions for a grand Jury or for unanimous verdict by petit Juries and questions of private right could not be settled for the same reason that there was no provision for unanimous verdicts, and the rights of the people however hostile to Keep and bear arms could not be infringed, and trade with other countries might be suspended because there was no law extending the United States shipping and custom laws to the newly acquired Territory and no machinery for the collection of duties under United states laws and vessels registered under the laws of the required territory would be without a flag, so that, in a word, there would be anarchy in place of order?"It can be safely asserted, that if the Fifth and Sixth Amendments to the Constitution of the United States were held to be in force there at that time. Then so must also have been the remainder of the amendments to the Constitution.
Now let us see how this reasoning has been upheld by the authorities in the United States. In the first place less than a month after the decision in the Peacock case the Hawaiian Supreme Court in an opinion by Judge Frear, who also wrote the decision in the Peacock case, held per syllabus, "The registry laws of Hawaii were not abrogated immediately upon the annexation of these Islands to the United States," and the court said, 'The Hawaiian registration laws are a part of the municipal legislation of these Islands which was to remain in force temporarily by the terms of the Joint
Resolution of annexation,"
On September 12, 1899, this decision was reviewed by Hon. John W. Griggs (22 Opinions of Attorney General, p. 579. 581) who said, "the Joint resolution of Congress for the annexation of the Hawaiian Islands provide that 'the municipal legislation of the islands, * * * not inconsistent with mine," and then said, "With due re- this joint resolution * * * shall United States shall otherwise deter- remain in force until Congress of the spect to the judgments of the Supreme Court of Hawaii, I am unable to admit that a Hawaiian registry can now be issued to a vessel and the flag of Hawaii, "the usual token of registration, be flown by her," and "By the very language of the resolution municipal legislation inconsistent with the resolution shall not remain in force, and upon these views I am constrained to hold that the registration laws of Hawaii have been abrogated as a necessary consequence of annexation."
What did the Supreme Court of Hawaii say in regard to this last provision of the resolution of annexation? In the decision following the Peacock case. Republic v. Edwards, 12 Haw, 55, they said, in construing the provision that "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 United States, nor to any existing treaty of the United States shall remain in force," etc, that it was only by inference that they could hold that laws inconsistent with the resolution or contrary to the Constitution or to any existing treaty, were abrogated, and that to hold that the sentence made such an inference was to hold that it was intended to be, not, as it purports, an affirmative declaration of what should continue, but an indirect repeal of what was not declared to continue. On general principles such a construction should not be favored." The reasoning of the court was that the "inference is one of repeal and that repeals by implication are not favored." But the rule as stated does not apply here for Congress if it did anything abrogated and annulled such legislation and did not "re peal" it. A statute can be repealed only by the power which passed it, and Congress in acting upon our laws did not repeal any of them but it did abrogate and annul many of them. But regardless of this question the judgment of the local Supreme Court that laws inconsistent "with this Joint Resolution' and "contrary to the Constitution of the United States" and "any existing treaty" remain In force regardless of the provision of the resolution, and that these provisions were "intended to be merely declaratory and not remedial" and therefore are of no force or effect to abrogate inconsistent or contrary laws in expressly and emphatically repudiated by Attorney General Griggs where he says that "with all due respect to the Judgments of the Supreme Court in Hawaii," by "the very language of the resolution municipal legislation inconsistent with the resolution shall not remain in force," (22 Opinions of the Attorney General, p. 580. 581).
And here it should be noted that the "very language of the resolution" is this same speaking of "legislation inconsistent" therewith as it is of laws "not contrary to the Constitution" and that it must follow that by "the very language of the resolution" laws "contrary to the Constitution" were abrogated.
The reasoning of the Peacock case and other cases in which Chief Justice Frear wrote the opinion of the court is based principally upon what the court calls a "transition period"' and it is this "transition period' theory upon which the later decision in the Marshall case is based. That is that there was a period during which we were in a state of transition from a foreign country (with reference to the United States) to a country which became a part of the United States.
This theory this Court does not think sound, and believes that not only the authorities but the reasoning as set forth in the case of ex-parte Edwards, 13 Haw., p. 32, states the law as it is, and that the conclusion therein arrived at that the "Hawaiian Islands were a part of the United States on the 10th day of August, A. D. 1898; that the Fifth and Sixth Amendments to the Constitution of the United States were in force here at that time....
[Evening Bulletin, Honolulu, Territory Of Hawaii, Wednesday, July 24, 1901. Vol. XI. No. 1898. Pg. 4 - Excerpted from the article "Deprived of Liberty Unconstitutionally" (Cont'd. from page 1)]
Our hired servants in government were not delegated the authority to tell We The People what our rights are. Nor were they given the authority to tell us how, when or where they can or cannot be exercised. Our hired servants are BOUND by We The People's Constitution to "secure" those "blessings of liberty" for us. We can only be punished for abuse or misuse of our Constitutionally secured rights. But the right itself can never be Constitutionally removed.