The Hawaiian gazette., 1869-11-10

SrcencS q otl<cttCo 70 TIC law u Masters
and Servants. relied "a hy several q
The orators al The lste public discussions,
Was the alleged cruelty and Injustice Of lis
pensl elsrses, which authorize the iuprisoa-
inca, Of An enrloyee who has slgnsd eoa-
trset TO ~orS tor an employer. and who shall
Afterwards refuse 70 perform his psrs Of it
which provtSloes were repeatedly aud veAe-
mestly denounced a. Unconstitutional. ex-
eSptional RsiiAtersl. and without parallel in
cur Code, ard in aei ws1ienly ercel aud
oPpSvsSlve-so much 50 that the alleged vic
tins were said to b emlnently entiile1 10
p1blse sympathy aud administration. pro
pose. with your permission, 70 review those
ensetments, with view TO demonstrate the
prSourdness and haselesSneSS Of the oGtery
uow raised sysiust thcna-s task, which, 50
far as l am aware, was rot thoroughly az
eompliShed At any of those meetings,
In the 6rst place, no penalty whatever can
attach 10 lseorer's refusal 10 work under
his contract. Il be san show any fair reason
or cause for such refHSSl-sneh as Insufficient
food or lodging. or other asi,reAtment on
the part Of bis employer; and ii IS only in
extreme cases OF eIRseless, willfal, sud OBJ
siinaie refusal to work in accordance with
his contract. entered into voluntarily and
intelligeutly, that the right 10 invoke the aid
Of the eOerelvs clauses against him can have
any existence Moreover. an employee ar.
rested on a charge Of violating either Sec
l4l9 Or 1870. BY aeSeetiug himself from duty,
or diSObsdienee of orders, when brought
before District or Police Justice, has, under
the terms Of both these sections, full power
Instantly TO terminate his Imprisonment BY
eonsentiug TO return 10 his employer and rs-
sRminS his daiies under bis contract. ard If
being unable to show cause for his refusal or
diSobedienee. be stiu persist. doggedly, in his
refusal, OWE | can not look upon such a
person as fair subject for sympathy; and if
be be sent 10 prison and compelled 10 work
for the Governments as compensation for the
expense OF his maintenance ard other costs
Is il, l ask, fair or reasonable 10 denouuee
THAT as the involuntary seryitude'' for
hidden by the Constitution, which some Of
our juvenile orators assert 10 be analogous
to, if not identical with, slavery ITSELF when,
by tbs simple exercise Of his volitiOn, in
eOrseutiug 10 return 10 his allegiance, he has
the absolute right and power 10 put an in
slant period to both the dureSs aud the iabOrs
The allegation that such person Is entitled
to any sympathy, or that the law TO which be
50 seSEHtsrily subjects himself, is harsh or
cruel towards him, does seem to me TO be
wanting in that hOHs.f6ss which, alone, can
give force or weight TO an argument, and TO
be, much more likely, the result either of
faction or Of mawkish >entimentality.
As regards tie alleged uneonstitutionAliiy
of the law, allow me TO refer TO the univer-
sally recognized legal axiom, that in all con
stitutionAl countries, the supreme Legisla-
tive power OF the State has the inherent
right TO declare as eriRss, not only such acts
as are contrary to nature and religion, but
also acts in violation Of good faith between
individuals; and it does not seem to me that
in euaeiius the law now under discussion,
the Legislature have transeended or violated
that principle.
One Of the speakers at KAumskapili con-
tended, with much force, for what take to
be Pefeetly sound construction OF section
1870 OF the Civil Code, which, he argued, is
really not penal, As against the employee, but
simply cusrirs. That Section SAWS that if a
party bound to work BY contract in writ
ing, shall refuse TO serve according to his
contract, his employer may apply to a magis-
trate, who shall send for the reeusant, either
by warrant or otherwise, and u his r.f,ssIl !
sAGl bs persisted in, be shall be committed TO
prison, ''there to remain at hard labor until
he will consent to serve according to law"
Now where, ask, Is the penal element in
this, if penal means the inhiction of punish
uent in re4uiial for an Offeuse already con-
nitted, as it unquestiOnahly does in the
sense in which the opponents of that law
have used it. The restraint of the person
warranted by that Section, is not in that, or
my other sense Of the term, puRitory, but
merely eOercive, and intended to operate
lpon and influence his future conduct, by
him to return to bis duty, and in
he words of the Section, 'tO serve sceori- Z
ng TO law" The pretense, therefore, that Z
his eoercive restraint, and hard labor, are |
hat involuntary servitude," forbidden BY /
he Constitution, amounting 10 COOlieism, |
which Is called Synonymous with slavery, 1
must be the result Of either miscOneeption 4
If the legitimate meaning of the term, or a
Fillfal Misrepresentation of it, to serve a
actious purpose
As regards the hard labor to which the
,bstinscy OF the lAborer may subject him,
While persisting in his refusal to serve ae-
.ording to his contract, il seems to me. per-
eetly just and air that be should pay for his
,oard and lodging during the period OF his
Voluntary restraint, terminable At any mo-
nent by the exercise Of his will; because,
he matter being purely personal one, with
shich the State, or the public, have no pos
lille concern, it would be positively unjust
hat he should De encouraged in his obstinzcy
y being supported at the public expense
II has been already demonstrated that the
mployee has an ample and easily attainable
emedy against his employer in Sec 1423 Of
he Code, which renders an employer who
azlfreats his servant, OF violates any Of the
Ir0visions Of his contract, liable TO actual
By hne, and Imprisonment at
ard labor till such fine shall be paid, and
$50 to have the contract wholly resciuded,
nd the servant set free-sn enactment
put in force BY the Police and
district Courts; and yet its existence has