The Hawaiian gazette., 1870-08-10

us Is q dencdIe ana TespOnslDie uutJ. Tue
legislative department, as a coordinate and indie
pendent branch of government, is entitled to full
confidence and respect, and any encroachment
upon its powers by the Judiciary would justly
be deemed unwarrantable, and would tend TO sub
vert all law and order. But the Constitution
imposes upon this Court the duty of administer
ing all laws under the Constitution, and no judge
who is worthy of the name dares to shrink from
its performance. But the Court is never war
ranted in declaring law unconstitutional unless
in cases where the rights of persons are necessa-
rily affected by the law, and where there are no
other clear and valid grounds on which the judg-
ment may be based. See Marshall, C. j.. in ex
parte Randolph 2 Brock, 472; Shaw, C. j., in
Norwich VS.. Hampshire, l6 Pick, 81 johnson,
j., in Frees vs. Ford n. Y, III; Roosevelt
vs. GODDARD 50 Barb. 545.
From my view of this case, it will appear that
a decision upon the constitutonality of the Mas
ter and Servant Act is not called for, and there
fore it is improper for me to volunteer to give it.
But this must not lead to the inference that any
doubt exists of the right and duty of the Court
to decide such question, when necessarily raised
in Ha6eas Corpus. nor that, by not passing upon
it now, | either intimate doubt of the consti-
nationality the illegality of that Act. In thus
expressly combining myself to the points requiring
Judgment / dsclaim 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 Is
lands: Whereas Asun, No. l, was convicted in
the Police Court of Hilo, Of the offence Of refus-
ing labor and was then and there sentenced to
be imprisoned at hard labor, until he consent to
return to work for tie agents and owners of Met
plantation Therefore you are strictly eniOined
to execute this sentence
Given under my hand this 29th day of June,
1870. u. II. HITcHcocK
Police Justice of Hio."
1t is claimed that the mittimus is fatally defec-
tive in not limiting the Imprisonment to three
months according to the Act of 1860, amend
ing Sect. 1920 of the Civil Code, and in Iaiiing
to show by whom the suit is brought or the date
was had / think it is desirable that the mitti-
mus set forth the offence more precisely as a
"wilful refusal to serve the prisoners master,
naming him. according to the terms of his con-
tract, or 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 " Hoole hama" refusing work" may
be regarded as sufficiently descriptive of the Of
fence. The amended return filed by the respon-
dents, and admitted by the petitioner, finds that
the suit was brought by one Husbands, agent of
Theo. Metcalfs legal representatives, and mana
ger of the Metcalf plantation, for desertion by
the petitioner from service under the contract
on file. This disposes of several of the objections
named. But | do not think, in any view, that
the mittimus can be held good in its statement
of the sentence, % to be imprisoned at hard labor
until he consent to return to work for the agent
and owners of the Metcalf plantation" There
will be agents and owners Of this plantation, as
long as it remains a plantation. Shall the prs-
oner remain in Jail until he dies, unless he con-
sent to work for them, whoever they may be
Is this a sentence which the law can sanction
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 ser
vice. He has no discretion to decide whether
the prisoners legal masters are those who owned
and were agents of the plantation at the date of
the sentence, or at some other date Sec. 1919
authorized the justice to order the offender to
he restored to his MASTER" and that he, the Of
fender, shall be compelled to serve not to exceed
double the time of his absence, in the discretion
of the Court; Sec. 1920 provides that " If any
such person shall refuse to serve according To he
provisions Of he last Section or the terms Of he
contract the justice on bearing the case. if the
refusal be persisted in, may commit such per-
son to Imprisonment there to remain at hard la
Dor, until he will consent to serve according 10
L1,C" Shall any executive officer determine the
prisoners law for him, and decide who may legal
ly claim his services? 1t may be said that the
prisoner should know his own master" He
may have thought so himself, but therein the
Court that tried him failed to coincide. 1t was
for the Court alone to decide and make known
its decision on that matter.
In Coopers 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 HdleaS 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 impris-
oDment to cover costs, or not. This case is far
stronger than those If indefinite Imprisonment
like this be allowed there would be little securl-
ty 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
valuer l regard the mttimus as fatally defective,
then in emitting to name any persons US the
masters to whose service the prisoner must re-
turn in order to terminate his Imprisonment.
There are reasons Of peculiar force why
this degree of certainty is requisite. Take,
for instance the case of one sentenced to
be imprisoned until he consent to serve
person not in being who has remained in jail