The Hawaiian gazette., 1888-11-20

ton of passengers arriving at tn
ports within such State in any shil
or vessel; and IL on such examination
there shall be found among sucl
passengers any convict, lunatic, lido
or any person unable to take care o
himself or herself without becoming
a public charge. they shall repor
the same in writing to the collector
of such port. and such persons shall
not be permitted to land / hav,
not been able to refer to the said Acr
of the 18th February, 1886, but it j:
clear from the casa of Cummins il
81 Federal Rep. IS. which says
there was before the collector wher
he made his decision, legal and com
petent evidence of facts on which tc
exercise a Judgment as to the status
of the relator. Under these circum-
stances, the matter being within the
jurisdiction of the collector under
the Act, further consideration of the
case might be dispensed with under
the authority of In re Day, ~ Fed.
Rep. 67S,r that the collector is 10y
the Act specially authorized to
examine into and decide the question
Of the right of a passenger to land.
1t win be seen therefore, that each
of these three American statutes.
enacted for the purpose of restrict
ing immigration, provide an author
lty-a tribunal, to examine into the
case Of passengers coming into port
from a foreign country before they
are allowed to come ashore. to acer-
tain and decide whether they are
entitled to land. and if such conclu-
sion is against the right of a passen-
ger to land, the law authorizes the
collector to detain him on board.
Under these provisions of law, it is a
matter of course that the American
courts in hGbeds corpus cases should
find that such detention is legal.
simply because it is upon a finding
of fact by duly authorized tribunals,
and made by collectors authorized
by law TO act upon such findings of
fact
The Hawaiian Act to regulate Chi
nese immigration of 1857, on the
other hand, contains no provisions
whatever for the detention of Chi
nese passengers on board a vessel
from foreign ports, until
their ri ght to enter the country shall
be ascertained; it does not confer
upon any persons or officers what
ever the authority to decide the
question Of the right of Chinese to
and except under Section IL in
which jurisdiction is conferred upon
police and district justices to de-
.ermine certain offenses under the
Act, including that of landing or
attempting to land without the prop
II permit. The ColIector-General is
given no authority to adjudicate the
question of the right of Chinese pas
.engers to enter the country or to |
letain them on board their vessel |
or want of such right His absence |
4 authority IN the premises is EN-
,hasized by the fact that the Legis-
sture found it necessary, BY the
xpress provisions of Section 10. to
Onfer on him " the authority to de
ain any person detected IN or rea-
onably suspected Of a violation OF
ny OF the provisions of this Act, and
D hold him until a warrant of arrest
an be obtained-- If the collector
ad the general authority to detain
definitely q passenger, 1t wonld not
ave been necessary to give him by
enactment, the lesser au-
lOrity to detain him an hour or two
ntil warrant OF arrest could be
REQUIRED. The two legal maxims.
zprsssi0 VHius 81 ezclusi0 aIterius and
zprs5t1m fact esstars tacifnm apply to !
le discussion at this point and dis
Use Of the argument for an implied
snsral authority IN the Collector
eneral TO detain passengers under
.e Act.
Because the statute has prohibited
.rtain persons from entering the /
,untry, Is any one thereby author I
ed to take it upon himself to carry !
It the statute as a volunteer and I
lder the mere act Of prohibition to
.priye individuals Of their personal q
And If one acting under /
Oh naked prohibition arrests an {
can such an arrest be E
i'd to be under legal process? Ilr
q compelled 10 answer both OF '
CSC questions IN the negative and '
far TO dissent from the opinion Of {
E majority OF the Court An iIIus- t
.tiOn may make this point more L
ar Polygsmy Is prohibited by n
ltute and a penalty provided for S
No one would, however, be there Il
authorized TO arrest q person Of r,
! own motion, and deprive him Of 81
liberty TO prevent him from II
the statute. The Le- y
Stature has relied upon the penalty ia
Z prevention Of polygamy, and DO a,
E may Use deprivation Of liberty Al
. prevention, simply, because such p.
5O1Ise Il not authorized BY the r
tnts- The Legislature IN the Act u
restrict Chinese immigration d,
sd upon the penalty as proven II
n II Is not for the Court to say a.
I the penalty Is insufficient and az
rsfOrs measures not provided in
statute, even TO the extent Of de-
Tstion Of liberty, may be used 10