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PUBLIC RECORD OFFICE

Reference:

PLC.O. 885

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14 PUBLIC RECORD OFFICE, LONDON

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This statement contains no evidence of cruel usage or ment and expulsion, and does not appear to strengthen the case as previously reported sufferings beyond imprison- by Mr. Hawes.

It makes, however, no admission of Johnstone's unwillingness to stand his trial, but states that he was astounded by Mr. Hawes, saying (a statement not reported by Mr. Hawes, and most highly improbable) that his conduct in not volunteering to take up arms for the Government on the night of the outbreak convinced him that his (Johnstone's) intention was to support the rebels.

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an intention Johnstone distinctly disclaims, and he states that he can produce witnesses to prove that he had, on the contrary, resolved to take up arms for the Government on the 7th January, a few hours previous to his arrest.

The next case reported is that of Charles E. Dunwell, a hack-dgiver, a native of Jamaica, the facts of which are detailed in Mr. Hawes' despatch No. 11 of the 23rd February (Paper C), and this account is supported by a sworn statement on the part of the accused, who was still under detention at that date after the lips • of forty-five days, and without prospect of trial.

The points which call for special notice in this case, and to which the attention of the Hawaiian Government has been particularly drawn by Mr. Hawes, are the manner in which the arrest was carried out in that Dunwell was not permitted to dress or

even put on his shoes before being removed from his bed to prison ; the threats used to him by the Judge Advocate of the Military Commission to induce him to give evidence incriminating r. V. V. Ashford; the harshness of his treatment while in prison: and the inattention shown to his repeated requests to be allowed to see the British Consul-General.

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The reply of the Hawaiian Government, in the first instance, to Mr. Hawes' representations merely stated that the prisoner was held for complicity in the insurrec- tion against the Government, the extent of which the Government endeavouring to ascertain, and that "whether the charge against him will be treason, conspiracy, or misprision of treason cannot be statel till the case is reached." This answer appeared to Lord Kimberley to be insufficient, as it contained no assurance that the charge of ill-treatment in prison would be investigated,

Mr. Hawes was therefore instructed to claim a strict investigation and the punish- ment of any persons who might be found responsible, if the facts were substantiater). (See telegram to Mr. Hawes of the 21st March, and despatch No. 12 of the 25th March, Papers Dand E.)

A full reply has since, however, been received from the Hawaiian Minister for Foreign Affairs, who incloses a Report by the Attorney-General after investigation of the case.

(See Mr. Hawes"despatch 'No. 17 of the 4th April, 1895.)

Dunwell's statements are therein denied, in so far as he claims that he was prevented from communicating with Mr. Hawes, and that he was not permitted to dress himself when arrested. Dunwell's statements have, however, been repeated by him on outh in a further sworn statement recently received, which forms an inclosure in Mr. Hawes subsequent despatch No. 21 of the 12th April (Paper M).

In that statement Dunwell incloses copy of the oath to support the Constitution. Laws, and Government of Hawaii which he signed on the 25th July, 1894. In the rertificate granted on the strength of this oath it is expressly stated that Dunwell is entitled to all the privileges of Hawaiian citizenship without thereby prejudicing his native citizenship or allegiance.

It was contended, in the reply of the Hawaiian Government to Mr. Hawes respecting the Dunwell case, that they held information of his complicity in the insurrection which amply justified his arrest: that his confinement in a dark cell was justified by his making wilfully false statements, and by his contumacy in refusing to give evidence: that the right of the Judge Advocate or a Military Commander to information in the possession of a prisoner would probably be admitted: that the Judge Advocate, in making his investigations, was exercising functions partly military and, partly judicial; and that, in view of the armed insurrection then in progress, which threatened not only the peace of the community, but the very existence of all govern- ment; his action in the matter was justified as the act of "a officer of a Sovereign State done during a period of martial law in the suppression of regularly commissioned rebellion.

It is pointed out that Dunwell might, in the land of his birth, under similar circumstances, have been subjected to much harsher treatment, and a precedent for similar action is cited in the case of the proceedings under martial law in Jamaica

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under Governor Eyre, and the decision in the case of Phillips ». Eyre decided in the Exchequer Chamber on error from the Court of Queen's Bench in 1870 is quoted in support of this view.

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It was picaded by the defendant in that case (see Law Reports, 6 Queen's Bench Cases, p. 1) that he was the Captain-General and Governor of Jamaica: that a revolution existed that the acts complained of were reasonably done in good faith put an end to the rebellion, and were made legal by a subsequent Act of Indemnity.

The analogy between the cases is somewhat increased by the fact that the Hawaiian Government have themselves now introduced and passed an Act of Indemnity to relieve the President or any person acting under his authority from the consequences of acts done by them during the continuance of martial law; but the Hawaiian Government would seem to have lost sight of the distinction between treatment which a Government any be at liberty to apply to its own subjects, and that which is justified in the case of subjects of foreign and friendly Powers.

The texts of this Indemnity Act and of the subsidiary Acts, which were subsequently passed to extend and complete the scope of the principal Act, will be found as an inclosure to Mr. Hawes' despatch No. 18 of the 4th April (Paper I), who thus describes them:--

Act 20, entitled An Act relating to Martial Law, trials by Military Commission, and the liability of Officers of the Government and others for Acts done in suppressing Rebellion," in a preamble, recites the fact of a rebellion having arisen, its suppression, an the messity of in Unifying those who assisted in suppressing it. It then enacts and declares in effect that all acts done by any one in connection with any event leeding to the arrest or imprisonment of any person was done within the Constitutional authority of the President, and such acts are confirmed.

Act 22 repeals a former Law in regard to bringing suits against the Hawaiian Government in order to pave the way for the enactment of Act 24, “An Act to prevent the bringing of Actions against Officers of the Government or others for Acts done in suppressing Rebellion."

This Act, which is practically a rider to "Indemnity Act No. 20,” prevents any suit being brought against the Government for redress for acts committed by the Government under the authority granted to the President by Act 20. A mere declaration by the President that such acts were committed by his authority is thus a difficulty or even a complete bar to any claim.

These preceding Acts are followed by Act 26, An Act to provide for the Judicial Investigation of Claims against the Hawaiian Government." This Act passes to the exclusive jurisdiction of the Supreme Court, without the intervention of a jury, the hearing and determination of all claims against the Government, and in its provisions supplies certain legal and technical defects in Acts 20 and 24. Its decision is tinel.

The provisions of the three several Acts referred to would appear to be such in detail that even if the Supreme Court desired to render justice it would be impraeti- cable for them to do so under Acts 20 and 24.

Mr. Hawes understands that several British subjects who intended to måke claims for damages for illegal imprisonment and consequent injury to their business are now deterred from doing so, as they feel it will be practically impossible for them to obtain any satisfaction or redress through the Courts of the Republic, but that they propose now to appeal to Her Majesty's Government for protection.

The purpose of these acts would seem to be to deprive those whose liberties and civil rights have been invaded during the recent political disturbances of their legal remedies, and to bar all claims for compensation arising therefrom.

It is pointed out by Mr. Hawes that this class of legislation would seem to be expressly prohibited by Article 71 of the Constitution of Hawaii (of which a copy is athexed to Paper X. inclosed in my letter marked (A) of like date), as that Article declares that, except as herein provided, no retrospective law shall ever be enacted.” It also seetus opposed to the provisions of Articles 8, 10, and 11, which provide for security of life, liberty, and property, and freedom from search and arrest, &c.. without due process of law.

The question would seem, therefore, to arise, and the reply to it is one which must affect the whole class of cases now submitted, first, whether the acts in question are a violation of the Hawaiian Constitution, and, in the second place, whether they are of a nature to which Her Majesty's Government would be justified in taking objection under international law on the ground that they limit and restrict the rights to

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