The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-07-23
PENAL CONTRACTS.

The effect of the joint resolution on
the penal contract labor system is al
ready jan important question and we
are asked to state the points in the
case for the information of our read
ers.
The joint resolution provides that:
1.-THE municipal legislation of the Ha-
waiian Islands not contrary to the
Constitution of the United States shall
remain in force" until Congress shall
otherwise determine.
Amy Hawaiian law, therefore, con-
trary to the Constitution is void and
has been void since July 9TH.
A Hawaiian law may be inconsis-
tent with laws of the United States,
and yet be valid, according to the re-
solution, but it is not valid if con-
trary to the Constitution. A clear dis
tinction is made.
1t is generally admitted that penal
labor contracts are not recognized by
the common law of America. Wheth.
er this common law has been sudden
Iy planted here by the joint resolution
is novel and interesting question.
What concerns us now is the ques-
ton whether or not our penal con-
trat laws are contrary to the Consti
tuition, because it is now in full force
here.
We express no opinion, but give the
opinion of the United States Supreme
Court
If the Hawaiian penal contract law
conflicts with the Constitution, it is
with the 18th Amendment, which is:
Neither slavery or involuntary ser
vitude except as a punishment for
crime whereof the party shall have
been duly convicted shall exist within
the United States, or any place sub
ject to their jurisdiction"
A territory is therefore included.
The question is therefore, does the
Hawaiian penal law recognize and en-
force involuntary servitude?"
The Supreme Court of the United
States recently passed upon it, in the
case of Robertson VS.. Baldwin GIGS
u. S. r. 281), where a sailor who had
regularly shipped, but had deserted,
was arrested under a statute passed
by Congress authorizing such an ar
rest and Imprisonment.
On behalf of the sailor it was claim
ed that the statute was in violation
of the 18th Amendment. Mr.. Justice
Harlan ir a dissenting opinion, held
that it was a clear violation of the
amendment, and therefore void.
But the majority of the judges held
that the words involuntary servitude''
were not sweeping, but had a definite j
meaning. They said: that services
which have from time immemorial
been treated as exceptional shall not
be regarded as within its purview'
Cthe 18th Amendment. The Court
gives a history of sailor contracts, and
shows that both in England and Amer
lea these contracts with penal clauses
had been recognized as necessary and
lawful, and therefore it was under
stood by lawyers, judges and the peO-
pie that they were not included in the
prohibition made by the amendment.
AS to any other penal contracts, the
OOuIL Scy >, anu Ills etppCtbAS ~ W III
portant language:
THE breach of a contract for per-
sonaI service has not, however, been.
recognized in this country as involving
a liability to criminal punishment, ex-
cept in the case of soldiers, sailors,
and possibly some others, nor would
public opinion tolerate a statute to
that effect"
In the Slaughter House" cases DC
Wall go the Supreme Court alludes
to the practice by the British planters,
after slavery was abolished in the
West Indies, Of binding the negroes
10 work, with penal provisions The
British Courts declared these contracts