This course was followed in the matter of the claim of the owners of the British ship "Madras" against the Hawaiian Government. It is respectfully suggested that there is more reason why these claimants should be remitted to the same Court which settled the "Madras case in consequence of their Hawaiian domicil. The owners of the "Madras" not only were not domiciled in Hawaii, but had never been here.

3. In consequence of participation in seditious and

treasonable acts.

"Lord Castlereagh distinctly said that the grounds on which these two subjects two subjects (Arbuthnot and Ambrister) had been considered by the Cabinet as having forfeited the rights of protection from their Government, were that they had identified themselves, in part at least, with the Indians, by going among them with other purposes than those of innocent trade; by sharing their sympathies too actively when they were on the eve of hostilities with the United States; by feeding their complaints; by imparting to them counsel; by heightening their resentments, and thus, at all events, increasing the predispositions which they found existing to the war, if they did not originally provoke it."-Mr. Rush, Minister at London, to Mr. Adams, Secretary of State, 25th January, 1819, MSS. Despatches, Gr. Brit.

66

Such is understood to have been the course pursued by the United States during the late civil war. In September, 1862, the British Chargé d'Affaires at Washington requested the discharge of one Francis Carroll, a British subject, who had been arrested by the military authorities in Baltimore. Mr. Seward refused the request, and, in a note to Mr. Stuart, said:

666

be

J

Is the Government of the United States to expected to put down treason in arms, and yet lea persons on liberty who are capable of spreadi sedition? Certainly the Government cou not expect to maintain itself if it allowed su mischievous licence to American citizens. Can the ca be different when the dangerous person is a foreign living under the protection of this Government? Dip. Corr., 1862, p. 228 (Wharton, Int. Dig., II, 45 Mr. Frelinghuysen, Secretary of State, to Mr. Low 25th April, 1882, MSS. Inst. Gr. Brit., For. Rel. 18

(B.)--The Detention.

The affidavit of the Judge Advocate shows that the greatest diligence was used in the preparation and prosecution of the cases presented to the Military Commission. I may point out that the Commission was presided over by a Judge of the Circuit Court, who resigned and was given a military appointment for the sole purpose of insuring a trial according to legal principles. In all, 190 cases were tried, and some 1,000 were investigated. The investigations were made after hours and in the night, after the Commission adjourned for the day. As the investigations proceeded, so much of the plot developed that it became clear to the prosecuting officers that it would be a breach of duty to discharge any of the accused until the cases were completed, and all sources of evidence exhausted. There is absolutely nothing on which to base a charge that one of these men was detained for the purpose of punishment, or for any ulterior or other object than to prepare the case and to proceed with it in due order. No discrimination was used in the selection of cases for trial. They were presented as soon as prepared. It undoubtedly was a misfortune, as far as these men were concerned, that the writ of habeas corpus was suspended at the time they were under arrest. This was an inconvenience suffered by them in common with the rest of the community, differing only in degree. The solution of the question how long the necessity existed for the continuance of martial law was a matter solely for the determination of the Executive. The action of the Executive in the premises cannot be made the subject of a personal grievance.

"And it is obvious that by the same reasoning the President is the sole judge of the time during which martial law shall continue, as well as of the necessity for proclaiming it in the first instance."-In the matter of Jonah C. Kalanianaole. Supreme Court, Hawaii, May Term, 1895, pamphlet, p. 194.

"The right to suspend the writ of habeas corpus is one of municipal law, to be declared to foreign Governments, by the President, through the Department of State; and it is not competent for foreign Governments to question the accuracy of such declaration. Mr. Seward to Lord Lyons. 14th October, 1861, 2 Wharton, Int. Dig., 650, section 230 (a).

If committed for trial at the next quarterly term of the Circuit Court, the claimants would have been detained in confinement a much longer period than they, in fact, were. By Act of the 2nd June, 1893, they were not entitled to be admitted to bail without the consent of the Attorney-General, even in time of peace. That Statute provided that offences of a seditious nature should not be bailable.

(C.) The Treatment.

In the cases of the men whose cases are still pending, save Dunwell, no sort of harsh or rigorous treatment was adopted. Such force as was necessary was used to make the arrests. From that mcment until the discharge the men were treated with all of the consideration possible under the circumstances.

The Oahu prison is conducted on humane principles. The acts of the gaoler are subject to the control of a Board of Prison Inspectors, who are not otherwise. connected with the Government, and serve without pay. The prison is frequently visited by Diplomatic Represen tatives in Honolulu, and the Government, at all times, invites the closest scrutiny of the institution and the methods pursued there. Dunwell's case was exceptional, and has been fully explained.

(D.)-The Stipulation to leave the Country.

Messrs. Levey, Bailey, Redward, McDowell, Harrison, and C. W. Ashford were released from arrest on their undertaking to leave the country. They chose to do this rather than stand trial. The stipulation was in the

following words :

"Whereas I,

.

am now held in confinement. for complicity in the recent insurrection against the Hawaiian Government, and have expressed a desire to leave the country not to return, provided the said Government shall, in its clemency, consent to such expatriation: Now, therefore, I the said. in consideration of the consent consent of the Hawaiia Government that I shall leave the Hawaiian Islanc immediately upon being released (it being understood and agreed by me that said charge is in ncwise with drawn nor in any sense discontinued), do hereby agree that when allowed to leave the custody of the Marshal I shall and will leave the Hawaiian Islands by the steam-ship leaving Honolulu, for

on

A.D. 1895, and will not return during my lifetime without the written consent of the Minister of Foreign Affairs, or other officer having charge of said Department, approved by the Marshal.

"Witness my hand this day of

1895."

This stipulation clearly amounts to an admission of some degree of guilt, and is conclusive on the question of probable cause. It was so understood by claimants. They all had opportunity to consult with you, Sir, and with counsel. In at least one instance the opinion was plainly expressed by you, in the presence of officers of this Government, that signing the stipulation amounted to such admission.

No valid ground has been suggested why these stipulations should not stand. It is not claimed that they were obtained by fraud or compulsion. In the absence of such showing the stipulation must stand. The fact that these men were all released and given time, varying from four to twenty days without any restraint to settle their affairs, during which period they had ample time for reflection and for consultation, and the further fact that they all carried out the terms of the stipulation without any compulsion from the Government, conclusively settles the character of the transaction, and puts it beyond the power of these men to now attack the good faith of the proceeding.

In this connection, reference may be made to the case of W. P. Kapu, an Hawaiian citizen, formerly a missionary in the service of the Hawaiian Board of Missions, who was deported from the Gilbert Islands by the Captain of Her Majesty's ship" Royalist," in 1892.

In November of that year the matter was referred to Her Majesty's Government by the Hawaiian Government, and a claim for reparation made. No response having been received, the matter was again called to the attention of your Government on the 25th July, 1893. The only reply received was a verbal statement by Her Majesty's late Minister at Honolulu, in 1894, to the effect · that his Government had made inquiry into the matter and acknowledged no liability. That Kapu was found to be a mischievous fellow." and was sent away.

The ruling made in Kapu's case seems to have a direct bearing in the matters under consideration; this similarity exists that the action in both instances was taken by military commanders in times of local disturbance.

The distinction in favour of this Government, however, is obvious; no sort of compulsion was used by this Government in the cases in question. The opportunity merely was given to depart, which was accepted.

I submit, therefore, that sufficient has been produced to make a primâ facie showing of reasonable and probable cause to make the arrests and hold in detention the

persons above named. The showing is not exhaustive.
On a trial, much more could doubtless be produced. It
is fair to point, however, that in the cases of those who
left the country no further investigation was made after
the stipulations were
were signed, and witnesses, whose
evidence would have been available, were allowed to
depart.

In expressing the hope that the investigation made in these cases will prove satisfactory to your Government, I take, &c.

FRANCIS M. HATCH,

Minister of Foreign Affairs.

Sir,

ANNEX 16.

Mr. Hawes to Mr. Cooper.

Honolulu, May 28, 1896. I HAVE the honour to inform you that the note addressed to me by Mr. Hatch on the 4th November last has received the most careful attention and consideration. at the hands of Her Majesty's Government.

It is not controverted that on the occasion of an insurrection any Government is justified in proclaiming martial law, and in using the force necessary for its suppression, nor is it disputed that a Government possesses the right to require the removal from its country of an alien whose presence may reasonably be expected to produce disorder, or to interfere with the maintenance of good government. Her Majesty's Government consider that an alien resident in any country may be properly prosecuted and punished in due course of law for seditious offences or for conduct. endangering the peace of the community, and properlypunishable by the law in force; but they cannot accept the proposition that by the acquisition of a domicil in the Hawaiian Islands a British subjects forfeits his right to the intervention of Her Majesty's Government on hi