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

aforesaid - in the 18th line, second page, and all
points Of arguments thereafter contained, 10 VIE,
from that marked l TO the word % Kingdom, :
in point marked z, in the the third page, De
stricken from the answer by way of traverse, the
same not being cognizable before this Court in
the cause now at issue, and impertinent to the
point before the Court" The petitioner, with
his answer, offered an affidavit, which, being
objected to by the respondents on the ground that
they were entitled to cross-examIne the witnesses,
was not admitted. The Court declining to order
any part of the petitioners answer to be stricken
out. the RESPONDENTS fled a demurrer to the por-
ton thereof objected to as being cognizable only
before the Court that tried the cause, and the
petitioner Joined issue. 1t was argued for the
demurrer, that the respondents could not, ny
these summary proceedings, be debarred from a
iury of the country that this Court is not vested
with jurisdiction to revise the action OF the Police
Court. upon the facts alleged before him, nor
could it be reviewed here by a single justice.
The ruling of the Court appears in the opinion.
Mr.. Thompson argued for the motion to discharge.
The contract on file, admitted to be the only one
on which the prisoner was tried, failed to show
any signature by the prisoner, as required by
law for it's enforcement, nor is any written assent
of the prisoner shown TO the assignment OF the
alleged contract. By our statute of frauds, as
we'll as by the Master and Servant Act, both
contract and assignment must be signed. There
can be no legal assignment OF a personal trust.
Even in partnership. Il deIectnS personarum always
exists only property, like chooses in action, and
bills of exchange, are transferable by mere
assignment of the holder-not contracts for per-
sonal service. -Metcalf is shown to be dead, by
the pleadings of his executors and heirs. There
is nothing in the assignment, If 1t were valid
about Metcalf's partners, and all power over the
prisoners person ceased at Metcalf's death.
Metcalf could give no third party rights to the
enforcement of the service after his own death.
Mr.. Stanley, contra. The only question is,
whether this cause was tried by a Court having
jurisdiction under any constitutional law OF this
Kingdom. There is no doubt of this. The Juris-
diction is clearly given under Section I4Io and
seq, Civil Code. This contract was the property
of Metcalf and his partners, Tucker and Waller,
who have been decided by this Court to have an
interest in it. By Section 1925, Waller, the
surviving partner, has rights in the contract.
Dormant partners have rights in such contracts.
The legality of the assignment, and the effect OF
Metcalf's death, are not, however, before this
Court. 1t would require evidence to show the
facts, as much as any other facts tending to show
~illegality in the contract.
Mr.. Jones, in reply: To give the Magistrate
jurisdiction, there must be a contract such as the
law requires. This alleged contract no more
affects the prisoner, or gives the Magistrate Juris-
diction to imprison him, than if it were a piece
of blank paper. The Constitution of this King
dom, granted in 1864, expressly repeats In Article
70, all laws repugnant thereto, and in Article IL,
prohibits involuntary serVitude, except for crime.
This law, passed in 1859, is thus expressly re-
pealed. There is no pretense that the prisoner
has committed a crime, Getting Parsons as. Trask,
I, Gray 476.) The mittlmus must specify the
offense, or it is void it should show that the
prisoner was held to service by Theo. Metcalf, or
his representatives 1t sets forth no person as
plaintiff, nor a suit by any person, nor that the
prisoner was tried at all.
Mr.. Harris, contra: The case of Parsons Us.
Trask, if authority in Massachusetts,, has been
allowed h- no Afhnr IAHa,t q L. - fnr &c Hnnurp
The decision in that case, if sound, does not
apply in this. This contract specifies the place
of its fulfllment, the nature of the business, the
terms of service. and the compensation therefor,
and is q contract the enforcement of which is
expressly provided for by the laws of this coun-
try. There is nothing similar to chattel slavery
in the prisoners condition. This is not involun-
tary servitude, for it was voluntarily incurred by
the prisoners own act, and may be avoided when
ever he will consent to execute his contract. He
has agreed to do certain things. This is free,
voluntary action. A slave had no right to a wife,
child, or to anything on earth, nor did any law or
agreement, except his masters orders, govern
him. AS 10 the defects alleged in the mittimus,
the common law is not the law here in this
respect, no rule or practice OF any Court OF this
Kingdom requires a mittimus to set forth any
thing not contained in this. Only such defects
will be considered as make the mittimus clearly
void. TSmith's Lead. Cases, Sl9.l 1t must be
n clearly unconstitutional law which would lead
one justice of this Court to declare it to be SO,
contrary to the reiterated view of the Legislature.
OF Metcalf's death, there is no evidence, but
admitting it, we still have a right to the Judgment
of the lower Courts on the effect of our contract,
and OF all the circumstances relating to it. 1t is a
contract to serve another, and such other as
Rogers might Indicate, and Rogers is not dead.
The Court will only consider L, whether the
Magistrate acted under a visibly valid law =,
whether the proceedings are free from Irregular
ties which do not affect their vitality 8, whether
the judgment was under the law and authorized
by it.
Mr.: Jones, in reply. In questions affecting
the liberty of the subject, the Court will weigh
every argument very carefully. These proceed
ings strike at the liberty of the man. This con-
tract is before the Court. 1t is in three languages
English, Spanish, and Chinese. The English is
headed, 4" Emigration to the Sandwich Islands y
the Spanish, 90 Emigration. China Para ell Peru
1t is invalid on the face of it for want of mutual
ity. Slavery has grades. This is like Mexican
peonage.
1 am aware of the importance attached to
some of the questions raised in this case, and I
have given my entire attention to the arguments
and considerations presented by the learned
counsel.
During the progress of the cause, the question
of the nature and extent of the inquiry, which
may legally be made under a writ of hGbeaS
corpus, arose upon the respondents demurrer to
the petitioners reply.
l ruled that if the return showed a Judgment
not authorized by law, or that the prisoner was
condemned for an offence not known to the law,
or that tile proceedings were based on a law
which is in violation of the Constitution of this
Kingdom, or that events like the insanity of the
prisoner, or death of the master, had occurred
since the trial, habeas corpus was the proper
remedy but that it was not competent to try
over again the merits of causes which have been
tried by a Court of lawful authority and juris-
diction, and on which a lawful Judgment was
pronounced, and a legal mittimus Issued, and
that the only facts to be considered in this case
are those which are disclosed in the return and
amended return. In giving this ruling, 1 re-
viewed the cases that had been tried in this
Court, and gave reasons why the evidence offered
by the petitioner was not cognizable in this pro-