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

who is worthy OF the name dares to SHRINK from
its performance. But the Court is never war
ranted in declaring a law unconstitutional unless
in cases where the rights of persons are necessarily
affected by the law, and where there are no olhef
clear and valid grounds on which the Judgment
NAV be based. See Marshall, G. j., IN ex Par1e
Randolph, 2 Brock, 472; Shaw, Z. D. In NOT
witch VS.. Hampshire, 16 Pick, oil; JohnSon, -,
in Frees VS.. Ford, q N. Y, M; hooHe'eiS 10
GODDARD, SO Barb. $40.
From nv view of this case, it will appear that
a decision upon the consti:utionality OF the MAS
ter and Servant Act is not called Iof, anu .not
fore it is improper for me to volunteer 70 give !.
But this must not lead to the inference that any
doubt exists of the right and duty OF the Court
70 decide such a question, when necessarily raised
in ha6eas corpus, nor that, by not passing upon
it now, [ Intimate a doubt either OF the constitu"
tionaIity or the ~illegality of that Act. In tnus
expressly combining myself to the points requiring
Judgment, I disclaim all differences or presump-
tions as to my views on other points
will first consider the legality OF the mlttimus'
which is in the native language, and may thus
be rendered
"To the Marshal of the Hawaiian Islands:
Whereas Asun, No. 1, was convicted IN the Foiice
Court of Hilo, of the offence of refusing Iaoor' anu
was then and there sentenced to be imprisoned at
hard labor. until he consent to return to work for
the agents and owners Of Metcalf Plantation Ihere-
fore you are strictly enjoined to execute this sentence.
Given under my hand this 18th day OF june
1870. ID. b. HITCHCOCK.
Police Justice of Hilo."
1t is claimed that the mittimus is fatally de-
fective in not limiting the imprisonment to three
months according to the Act of 1860, amending
Section 1920 of the Civil Code, and in failing to
show by whom the suit is brought, or the date OF
the conviction and sentence, or that any trial was
had. l think it is desirable that the mittimus
set forth the offence more precisely, as a " willful
refusal - to serve the prisoners master, naming
him, 50 according to the terms of his contract"
or ss according to the orders OF the Court on a
second commitment for the same offence" as
these are different offences, requiring different
Judgments. But in view of the poverty of the
native language in words of legal intent, perhaps
the words g hoole hana,'' I" refusing work, may
be regarded as sufficiently descriptive of the
offence. The amended return filed by the re-
spondents, and admitted by the petitioner, finds
that the suit was brought by one Husbands,
agent of Theo. Metcalf's legal representatives,
and manager of the Metcalf Plantation, for de-
sertion by the petitioner from service under the
contract on file. This disposes of several of the
named. But [ do not think, in any
view, that the mittimus can be held good in its
statement of the sentence, a" to be imprisoned at
hard labor until he consent to return to work for
the agent and owners of the Metcalf Planta-
There will be agents and owners of this
plantation, as long as it remains a plantation.
Shall the prisoner remain in Jail until he dies,
unless he consent to work for them, whoever they
may be? Is this q sentence which the law can
How can the Marshal ascertain the
legal limit of such Imprisonment? 1t is neither
his duty nor his right to ascertain to whom the
prisoner owes service. He has no discretion to
decide whether the prisoners legal masters are
those who owned and were agents of the planta-
ton at the date of the sentence, or at some other
Section l4l9 authorized the Justice to or
der the offender s. to be restored to his MASTER"
nd fbof bo tho nAopHar gEGhol he ooDopallaH = ~
serve not to exceed double the time of his abb
sence, in the discrStion of the Court )" Section
1920 provides that, "If any such person shall
to serve according TO The provisions of the
section or the terms Of the CONTRACT the
Justice on hearing the case, if the refusal be
persisted in, may commit such personsto im-
prisonment, there to remain at hard labor, until
he will consent to serve according 10 Mlo." Shall
any executive officer determine the prisoners law
for him, and decide who may legally claim his
1t may be said that the prisoner should
Sc know his own master" lie may have thought
30 himself, but therein the Court that tried him
failed to coincide. 1t was for the Court alone to
decide and make known it's decision on that
In Cooper's case on habeas corpus, the Court
discharged the prisoner because his sentence was
less than that which the law prescribed, and the
full Court on review affirmed that decision. In
Apuna's case, likewise on habeaS corpus, the
prisoner was discharged because the Court had
not exercised its functions of sentencing to i'm
prisonment at hard labor for non-payment of fine
only, or fine and costs. but had delegated to the
Marshal to decide whether to extend the imprison-
ment to cover costs or not. This case is far
stronger than those. If indefinite Imprisonment
like this be allowed, there would be little security
for the person, and those time honored safe
guards of liberty which the Constitution of this
Kingdom has placed around US, would be Of little
value. / regard the mittimus as fatally defective,
then, In emitting to name any persons as the
to whose service the prisoner must return
in order to terminate his imprisonment. There
are reasons of peculiar force why this degree of
certainty is requisite. Take, for instance, the
of one sentenced to be imprisoned until he
consent to serve a person not in being, who has
in Jail until his time for appeal or writ
of error has expired, shall he have no remedy by
corpus, but be told that he should have
this legal impediment sooner, so that
the Circuit Justice and Circuit Court might have
decided about the facts, and determined the law
for him before he came here? See Feeley's case, |
IL Cush, 57S. That it is proper to discharge the
prisoner on ha6eGs corpus for such defect, is
clearly established by the decision of the full
bench in Cooper's case.
| should not hesitate to base my decision upon
point alone, but there are other reasons of
greater force. 1t is claimed by the
that on the return and amended re-
turn, showing Metcalfs death, and the contract
which the suit was brought, a want of
of the Magistrate over the prisoners
appears. The respondents counsel DENY
hat the Court can take cognizance of Metcalf's
or of any questions affecting the validity
If the contract, or which might arise, admitting
he death to have occurred. 1t was urged by
hem, that these matters require evidence, ard
IN examination of facts and circumstances, which
hey were entitled 20 have tried by a jury of the
,icinage, and on which they were entitled to the
news Of the local Circuit Justice and Court by
ocular appeal, until brought to this Court in
,anco, for consideration of the legal questions
,volved and that they should not, in this sum-
nary mode, be compelled to bring witnesses here
rom a distance, passing by the tribunals estab-
ished nearer their own door.
IF there were eontroverted facts. or if the con-
ract were not presented, at the instance of the
espondents, as the basis of the trial in the Court
,elow, and if the respondents were not in Court
g the heirs and legal representatives of Metcalf,