The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1870-08-20

nroeess is the same thing as if there were none at
all and then the party is imprisoned "ltnout
any authority whatever. Hence, the question
would seem naturally to arise, whether the auditor
had jurisdiction in the case-in other words,
whether the person and The subject matter are such
as to bring the case tcithin the jurisdiction Of the
Act of COngreSs,-for these are the criteria OF
Jurisdiction elf a Court assumes to act In a
case over which the law does not give 1t authority,
the proceedings and judgment will be altogether
void.'' Cooley's Const. Inns, p. 39S; shaw,
j., in Yose as. Morton, 4 Cush.. ~, and In
Clarke's case, IL Cush., 800.
Had the Magistrate jurisdiction over the person
and subject matter in this case2
The contract purports to have been made in
Macao, in China. Foreign contracts, to be en-
our laws, particularly to the requirements specI-
fed in Sec. l4l8. The only extension in their
favor rs. that they may be made for ten years and
that no limit is placed upon the age of the servant,
whereas domestic contracts can be for only i've
years ard the servant must be twenty years of age,
or have the assent of parent or guardian. Admit
ting that this contract is penalty enforceable in
favor of any persons to whom Rogers may assign
it, [ think the least that the statute requires is,
that such persons shall be persons in being and
designated by name at the time of the transfer.
True, Metcalf may have had dormant or known
partners, and they may now be his assigns or
representatives. But the contract was not as
signed to them as partners, and it is only as sur
wing partner Oh u uTm3 Ludb bucJ q Ctdiu
the benefit of the statute. Section l425 provides
that the contract is discharged at the masters
death, unless it was made with a company OF IN
diyiduals OF whom there are surviving partners.
A contract made as this was, with Rogers and any
to whom he may transfer it, is not a written con-
tract with another, or with any partnership, as is
required by Sections AIS and 1925. This is
going back to the original contract, without refer
ence to the assignment by Rogers, for of course
Rogers could assign, in writing or by parole, no
greater rights under that contract than it secured
to himself. | admit that the contract itselfcontains
no stipulation that its assignment shall be in
writing, or subject to the prisoners assent. 1t
provides that the prisoner shall enter into the SER
vice of j. S. Rogers for eight years, and that
during that period he will 81 work for the benefit
of Mr.. j. S. Rogers, or for whomsoever he may
transfer the contract"
But no contract for personal services gives IL
Police Magistrate jurisdiction for enforcing it by
imprisonment, in the absence of fraud, except by
force of the Master and Servant Act. No such
contract OF an adult is enforceable by the common
law of England or America. /. Hurd on Freedom
and Bondage, IS 143, oil. 1t is a law deemed
by the Legislature to be requisite to the needs of
this country, and of the policy of the law they
are the sole judges. But as it is a law against
the liberty of the subject, it's meaning cannot be
enlarged by intendment or inference by the Courts.
This is the old maxim of English law, Anghae
jura in onani casu Hbertah dant faUoren. In doubt
full cases of Englishmen's rights, the odds shall be
in favor of liberty. The Magistrates criminal iu-
risdiction over these cases is confined by the statute
to written contracts signed by the servant, between
the servant and another, or others forming q Co
partnership. This cannot be denied, and imprison-
ment on a contract not written and signed, is
clearly illegal and relievable on ha6eaS corpus.
Even under the strict apprentice act Of Eliza
beth, once in force in the American colonies and
some of the States of the United States, and to
some extent now in force in the latter, the con-
tract was not assignable, for says Kent, vol. 2, p.
265, upon the masters death, the end and design
of this personal trust cease. See Baxter VS. Bar
field, Str. 1866 Coventry vs. Woodruff, Dougl.
1874 Hall VS. Gardner, L Mass. 178 Davis vs.
Coburn, 8 Mass. 302; Commonwealth vs. Van
Lear, l S. & R. 248.
[ do not regard that as a contract enforceable
under this penal statute, and within its meaning,
unless it is in writing, designating the parties
either by name, or in such manner that they can
be ascertained precisely, at the date Ofthe contract.
1t is unnecessary to comment on the wisdom of
a statute restricting the enforcement by penal
servitude of contracts for labor, to those which
are made in writing with another, or with a firm
or on considerations which might arise on a law
which allowed the penal enforcement Of contracts
between parties not named, nor ascertained at the
date of the contract. Nor will | consider what if
any force our Statute of Frauds would have on
contracts of the latter description. Suffice it to
say, that the present contract is not in my opinion
penalty enforceable in favor of the respondents,
and therefore that it gave the Magistrate no
criminal jurisdiction over the prisoner. The pro-
ceedings at the trial must therefore be held void.
Let the prisoner be discharged with costs, except
those incurred in consequence OF the amendment
of the petition.