The Hawaiian gazette., 1904-12-16
AND
LUNAT|CS
Ashford Argues They
Should Be Put In
Same Class.

The brief of Attorney Ashford in the
habeas corpus case of Emma Kaipn,
leper confined at the Kalihi deten-
tion station, was filed with United
States District Judge Dole yester-
day. The brief, in itself, formidable
typewriter document, seems to hinge
its argument upon the contention that
because an insane person or a person
suspected of being insane is given a
semi-public examination to determine
the question of sanity, therefore a per-
son suspected of infection with a dam
gerous contagious disease has the con-
stitutional right to such examination.
THE sole question involved" says
Attorney Ashford, though divisiba
into many subsidiary questions, is this:
Does the return of the respondent To-
the writ herein disclose restraint of
the patient, Mrs Mikala Kaipu, by the
Board of Health. or it's officers, acting
under due process of law?
There is no denial on the part of
petitioner as to the existence in every
sovereignty of certain inherent powers
of internal management and control.
usually described under the term Po-
lice Powers. Neither do we deny that
L
Powers of this Territory might we'll be.
extended to the protection of the peo-
pie against the evils of the disease of
leprosy, and that such protection might
be found to necessitate the apprehen-.
sion and isolation of persons known to-
be suffering from the disease; but we.
insist that all such powers are held,
and must be exercised in subordination
TO tla ali
recited limitations of the Constitution
of the United States. If the restraint
of this woman is sanctioned by :he.
Constitution she must submit to that
restraint; if not, she is entitled to be
discharged therefrom.
From the earliest times in the his
tory of our race when the Government
assumed control over the persons and
estates of idiots and lunatics there has;
been some provision for an inquiry into.
the mental condition of the patient, or
person charged with idiocy or lunacy
as the case might be.
1T is most remarkable thing that
the Government should claim the right
to imprison. without legal process, and
TO Danish for life to the horrors of a,
Molokai lazaretto person claimed 10
be physically diseased, while conced-.
Ing, as the Government must concede,
that the mildest of lunatics could not
be committed for a day to the Insane
Hospital without judicial inquiry into.
his mental status, and a judicial de-
cision declaring him to be insane.
rs 1t not a denial to those suspected
Of leprosy of the equal protection of
the laws guaranteed by the Four
teenth Amendment, that they should
be subject to the arbitrary control OF
the Board of Health. acting through
physicians of its own appointment, and
responsible to it alone, and holding po-
sition solely by the grace OF the Boards
favor? Is there any reason in prin-
ciple why a person should be liable,
upon the mere say so or certificate of
a given number of physicians, who may
be ignorant, who may be vicious, who
may be prejudiced, who may be enc
mics of the person whose liberty is at
stake, who have taken no oath to ex-
anime diligently. or certify truly. to be
immured for life in the living he'll of
when even the mildest Of
fender against the mildest of penal
statutes may not incur money fine
OF one dollar without due and formal
accusation. plea, arraignment, trial,
and judgment in a court of law, where
all the rights guaranteed by the Con-
stitution as to witnesses, counsel and
ether modes of prosecution and defense
shall be strictly observed?"
The brief of the Attorney General
was not filed yesterday. 1t will, when
1t comes, be a strong presentation of
the case on the part of the Government,
the argument of Mr.. Andrews during
the hearing of the case Indicating that
the Governments position in the mat
ter would be we'll fortified