The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-12-14
LEPERS AND
LUNATICS
Ashford Argues They
Should B, Put In
Same Class.

The brief of Attorney Ashford in the
habeas corpus case of Emma Kaipu,
leper confined at the Ka lihi deten-
ton 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 Invisible
into many subsidiary questions. is this;
Does the return of the respondent to
the writ herein disclose a 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
sovereignty of certain inherent powers
of internal management and control,
usually described under the term Po-
lice Powers. Neither do we deny that
the legitimate exercise of the Police
Powers of this Territory might well be
extended to the protection OF the peo-
pie against the evils of the disease of
leprosy, and that such protection might
10 he
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 the well recognized and expressly
recited limitations of the Constitution
of the United States. If the restraint
of this woman is sanctioned by che
she must submit to that
restraint; if not, she is entitled to be
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 lurlatics there has
been some provision for an inquiry into
The mental condition of the patient or
person charged with idiocy or lunacy |
IS the case might be.
cit is a most remarkable thing that |
he Government should claim the right |
20 imprison, without legal process, and |
% Danish for life to the horrors of Il |
Molokai lazaretto a person claimed TO |
be physically diseased, while conced- |
ng, as the Government must concede, |
hat the mildest of lunatics could not |
De committed for day to the Insane 1
without judicial inquiry into |
MS mental status, and a judicial de-
,ision declaring him to be insane.
rs it not q denial to those suspected /
IF leprosy of the equal protection OF
the laws guaranteed by the Four i
tenth Amendment, that they should 4
De subject to the arbitrary control OF /
he Board of Health, acting through 4
physicians of its own appointment, and 1
to it alone, and holding po- l
Iition solely by the grace Of the Boards /
favor? Is there any reason in prin-
,iple why person should be liable,
lpon the mere say SO or certificate of
given number of physicians, who may
,e ignorant, who may be vicious. who
nay be prejudiced, who may be enc
MES of the person whose liberty is at
take, who have taken no oath to ex-
mine diligently, or certify truly, to be
mmured for life in the living hell of
when even the mildest Of
ender against the mildest Of penal
tatutes may not incur a money fine
f one dollar without due and formal
ccusation, plea, arraignment, trial,
nd judgment in court of law, where
IL the rights guaranteed by the Con-
titution as to witnesses, counsel and
Their modes of prosecution and defense
hall be strictly observed?'
The brief of the Attorney General
Tas not filed yesterday. It WILL when
comes, be a strong presentation of
he case on the part of the Government,
he argument of Mr.. Andrews during
he hearing of the case indicating that
g ION, I