The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-05-07
The following are the arguments of CounseI
for and against the petition in the above case
Brief of Petitioners Counsel.

out July duullI (LO TlSuG u any INDEPENDENT ma
ton, in the absence of treaty limitations to make
such laws as it thinks proper. to restrict, limit,
regulate, or even to prohibit the entry of foreign
ers within its limits. This is a right which is
essential to self preservation, and | am not aware
of any authority which denies 1t.
Nor do l care to discuss the right of a State to
exclude foreigners from its territory; certainly
for the purpose of this case [ am willing TO adj
init such right.
The question however for the Court to decide
in this case is whether there is any law of the
land which authorizes the Board of Immigration
H0IU 10 hold these men in custody.
Admitting that the Legislature have the right
to pass to limit. restrict, or prohibit the coming
here of foreigners, [ deny that they have done SO.
1t will not be denied, L think, that the Legis-
lature alone has the power to make or authorize
rules for prohibiting, regulating or limiting the
coming here of aliens. This position cannot be
denied now, for the respondents claim that the
Legislature has authorized the making of the or
dinance of the Bureau of immigration by which
these petitioners are held. Has the Legislature
the right to delegate to the Privy Council the
making OF an ordinance like this? The ques-
ton of right to delegate such authority is impor-
tant and vital. The Statutes made in the United
States to limit the Immigration of alien paupers
are enacted by the Legislature itself. They, as
well as this ordinance, are laws, OF the most I'M
portant kind, and not merely in the language of
the Acts of 1864 and 1868, - measures to secure
the importation of laborers,'' or - regulations
touching the contracts to be made with such la
borers as well as the terms and conditions upon
which they are to be assigned after their arrival. -
Nor yet - measures and regulations to promote
and encourage the introduction of free immi-
grants from abroad" Further they are not
. rules and regulations for the good government
and control of immigrants that have been brought
or admitted, or that may be brought er admitted
as servants or laborers under license or permission
from the Board of Immigration or contract with
the Minister of the Interior. To claim that the
ordinance comes under such rules, measures or
regulations as above named, which are all that
the Statutes authorize TO be made is TO admit
that these immigrants are brought or imported
here by or under the license or permission OF the
Bureau of Immigration, or contract with the
Minister Of the Interior. But the respondents
seek to maintain the right TO exclude these very
immigrants whom the Statute under which they
act considers as already brought here by the Bu-
reau of immigration, or with its sanction. The
President of the Boards of Health and of Immi-
grafton has testified that the passen~-sr by the
Septima were placed on shore in quarantine BY
order of the Board of Health, at the suggestion
of the port physician that they could not safely
be kept on board; that the Board of Health has
taken off its quarantine from them since about
the 18th inst, and that they are now held there
solely by the Board OF Immigration. II the Bu-
reau of Immigration has imported or sanctioned
the - importation" of these immigrants 1t GER
tainly has failed to show how, when and on what
terms or condition it has done SO, or that these
immigrants were admitted into the Kingdom I'M
der permission CT the Board of immigration.
This ordinance appears to me to have been de-
yiSed more with reference to the United States
municipal corporations than to this country,
which has no municipal organizations. The
Constitution makes the Legislative Assembly the
sole law making body, and although it may au-
thorize executive officers or departments to make
"a ,Ia m pr ranI1la fInnS - pursuant tn I
and for the purpose of carrying into full effect,
it's Legislative enactments, L deny that it can
delegate such power to make laws as this Ordi-
nance implies.
The principle that the power to make laws
cannot be delegated is m The law
making body derives its power to make laws
from the fundamental law of the land. This
Court has even held that such quasi public agents
as the Board of Commissioners of Crown Lands
cannot delegate to an agent the power to make
leases of Crown Lands. The delegation of GER
tain legislative functions made to the municipal
corporations In the United States and England
can only be made with the limitation that the
municipal charter authorizes the exercise of the
power so delegated.
One of the settled maxims in constitutional
law is, that the power conferred upon the legis-
lature to make laws cannot be delegated by that
department to any other body or authority.
Where the sovereign power of the State has
located the authority there it must remain and
by the constitutional agency alone the laws must
be made until the Constitution itself is changed.
The power to whose judgment, wisdom and
patriotism this high prerogative has been en-
trusted cannot relieve itself of the responsibility
by choosing other agencies upon which the power
shall be devolyed, nor can it substitute the judy
ment, wisdom and patriotism of any other body
for those to which alone the people have seen fit
to confde this sovereign trust. -COOeyS Cons.
Linz, pages 116 and liz.
There is nothing in the Acts of 1864 or 1868
from which it can be inferred that the Legislature
intended to authorize tie Prlvy Council to make
regulations to prevent introduction of contagious
diseases. There appears TO be no need of such
legislation, for the Civil Code gives full power to
the Board of Health. This ordinance in terms
purports to be not a rule, measure or regulation
for anv of the purposes named in either of these
Acts. but to be .:made in order to protect the
public from the spread OF contagious diseases.
How can the spread of contagious diseases be
affected by a rule that no immigrant shall be
allowed to land until he shall have given securl-
ties or satisfactory evidence to the Board OF
Immigration that : : he will not become a vagrant
or CHARGE upon the community" Here is another
object of this ordinance not contemplated by the
Acts of the Legislature, VIZ to prevent the
la nding of persons being likely to become pau
pers. The object of those Acts was to authorize
rules to be made to 81 secure the importation OF
Iaborers." to encourage and promote the intro
duction of free immigrants - and ''for the good
Government and control of immigrants brought
or admitted into this Kingdom as servants or
laborers, under license or permission from the
Bureau of immigration or contract with the
Minister of the Interior What connection is
there between the objects mentioned (s above)
in the Statutes, and the objects mentioned in
the ordinance) of preventing the spread OF conta-
gious disease or the landing of Migrants? But
the ordinance suggests yet another object, namely,
the protection Of the immigrants from the