In re Wong Sow

Hartwell, J.:

A writ of habeas corpus was issued on sworn petition in behalf of the relator, Wong Sow, alleging that he was illegally detained on the Italian steamer Glensannox, in the port of Honolulu, and deprived of the right to come on shore. The cause of restraint alleged by the respondent was a contract between the relator and Messrs. Meigs, Hubbe and Grytzell, made at Macao, whereby he agreed to serve said Meigs, Hubbe and Grytzell, and their assigns for eight years from arrival at Puntes Arenas, in Costa Rica, and acknowledged the receipt of eight dollars and three suits of clothing in advance. The petition alleged cruel treatment on the vessel. There was evidence that the relator tried to talk with some one on shore, and was thereupon beaten and driven down below; that several Chinese on board tried to talk with some one on shore, when a man on board, blew a whistle, and “ several men with pieces of knotted rope commenced to drive the coolies aft.” The relator was ordered to be discharged from the restraint.

At the argument on the appeal, the relator’s counsel desired a ruling merely on the respondent’s right to retain *504the relator in custody, and waived all objections to the contract or on the ground of cruelty.

I have been unable to find legal authority for the restraint shown, by reason of this contract executed in China, to serve in Costa Rica. Our statutory law seems to me to be imperative in requiring the Court to issue the writ and order’the discharge.

“ The privilege of the writ of habeas corpus belongs to all men, and shall not be suspended unless by the King when in ease of rebellion or invasion the public safety shall require its suspension.” Const., Art. 5.

“ No person shall be subject to punishment for any offence except on due and legal conviction thereof) in a Court having jurisdiction of the casé.” — lb., Art. 6.

“No person shall be deprived of life, liberty or property without due process of law.” — lb., Art. 9.

“The laws are obligatory upon all persons, whether subjects of this kingdom or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the law of nations in respect to ambassadors or other persons.” — Civil Code, Section 6.

“Every person restrained of his liberty (except in restraint under process of Court), may prosecute as of right a writ of habeas corpus according to the provisions of this act, to obtain relief from such restraint, if unlawful.” — Section 1, Habeas Corpus Act of 1870.

“The Court or Justice to whom such complaint shall be made, shall without delay award and issue a writ of habeas corpus.” — lb., Section 4.

“ If no legal cause for the imprisonment or restraint shall be shown, the party shall be immediately discharged therefrom.” — lb., Section 21.

By certain' treaties we are bound to give up on official request by the Treaty Powers, persons accused of certain crimes and deserting seamen. The present ease comes within none of these requirements.

*505There are no statutes which declare that the privilege of habeas corpus may be denied' to persons en route for other countries, or that foreigners may use any forcible restraint on each other here which subjects cannot also use., I do not know by what authority the Court can declare that such privilege may be denied, or such power held by foreigners which is denied to subjects; but the clear and strong language of our Habeas Corpus Act prevents, as I think, any judicial discretion in the matter.

I see no way to avoid discharging the relator from the restraint upon his person. This is not a suit in equity wherein relief may be refused if the Court suspect it to be desired as a means of escaping legal obligations. If a creditor seek to hold his debtor’s person as security for debt, or to prevent breach of contract, I do not know how a Court can say that the restrainst shall continue because the debt may otherwise be lost. On the contrary, the creditor must rely on his legal remedy, and would not be permitted to use his own personal force. Public imprisonment for debt is everywhere strictly a matter lex fori; whether Costa Rican law permits this class of contracts to be enforced in personam,, or not, I do not know; but if such be the law there, and if the relator be legally bound to proceed there to perform his contract, that gives no right of private coercion.

Nor is this a master’s complaint of his servant’s willful desertion, under our masters and servants act. If it were, then complaint of cruelty and objections to the contract itself which are now withdrawn, would be in point. And if the servant under such a complaint were adjudged guilty, or ordered back to service, he might prefer public imprisonment, and no bodily compulsion could legally be used to make him return.

Finally, this is not an Admiralty ease, in which a Court could decline jurisdiction on the ground that the cause of action arose abroad, and that the foreigners could be sent *506home for justice. This is a tort upon the person, committed within the geographical jurisdiction of this Court. Had the relator sued for damages for false imprisonment, or assault, or if a public prosecution therefor had been instituted, a plea to the jurisdiction could not have been verified by the facts of the case, for the parties and the act were here.

Regarding our enacted law as peremptory over the case, I have not considered the policy of applying it. But I do not apprehend more danger to the community in the law which precludes private forcible enforcement of contracts, than would result if such private force were permitted. If private armed vessels can keep men, not seamen, in such restraint at our wharves, and Hawaiian police are to be posted to prevent intercourse with the shore, the same thing can be done on the land. I think it is wiser to have the same law for all persons here who are not exempt by treaty or international law.

In Flanchet’s Case, 2 Haw., 96, the French Consul claimed by habeas corpus a French subject shipped as a seaman on an American vessel. The claim was rejected, the Court declining to enforce French law on the subject of the shipment of French sailors, and citing the answer of Henry IY. of France to Elizabeth, that “all kingdoms are free to fugitives, and it is the duty of Kings to defend every one in the liberties of his own kingdom.”

In Roberts vs. Knights, 7 Allen, 449, the Court gave judgment to a British sailor, who had deserted his ship, for wages on a British vessel, and declared the shipping articles void for indefiniteness. The Court in that case said, “it is consonant to natural right and justice, that the Courts of every civilized country should be open to hear the causes of all parties who may be resident for the time being within its limits.”

France once declined jurisdiction of suits between foreigners, “in which respect,” says Foclix, “French law *507differs from that of almost all other civilized countries.” I understand that their law is now so modified as to admit foreign suitors. See 4 Am. Law Rev., 607.

English Courts have even refused to deliver up a ward to the custody of a Scotch guardian. Bell’s Camp. Eng. and Sc. Law, 454. American Courts discharge on habeas corpus apprentices claimed under English identures. Com. vs. Deacon, 6 S. and R. 525. Com. vs. Hamilton, 6 Mass. 273.

Our law permitting labor contracts to be enforced penally does not include contracts of foreign labor. A Hawaiian employer would not obtain the aid of English and American Courts for the enforcement of a labor coutract by our law, and he would be liable to the law there if he used force of his own to compel the service. 1 Hurd’s Law of Freedom and Bondage, 139. Cooley’s Const. Limits, 342. Viner’s Abr., Title Master and Servant, K. 2 Hagg. 133. 18 Pick. 192.

To subjects and citizens of treaty powers, we are bound to extend “the same privileges, liberties and rights as to native subjects.” Art. 9 Brit. Treaty. Art. 8 Am. Treaty, and other Treaties. Can those with whom we have no treaty complain if we allow them no less and deny no more ?

If an English Australian steamer were to touch here with English emigrants under contracts to labor in California, would it be claimed that force could legally be used to prevent such passengers coming on shore ? The law in the two cases is the same.

The following citations are made in addition to the foregoing:

1 Black. Comm. 134, and 3 Ib. 127. 9 Bacon’s Abr., 462. Wharton’s Confl. Laws, §§ 744, 749. Story’s Confl. Laws §§ 541 and 574, a. 2 Phillemore’s Int. Law, 2 and 4, Ib. 2, 15, 702, 706. 1 B. and Ad. 288. 3 Inst. 180. 23 Deut. 15.

As the majority of the Court do not find legal cause for the restraint, the decree discharging the relator therefrom is affirmed.

*508Widemann, J.: Wong Sow comes before the Court in this case with the allegation that he is illegally deprived of his liberty by being detained on board the Italian steamer Glensannox. " ,

The captain of the ■ steamer admits the detention, but claims that he has the right to detain the said Wong Sow under a written contract of service, made in Macao, to be executed in Costa Rica, which Wong Sow admits he had executed.

The language of our Habeas Corpus Act, in Sections 1 and 4, is peremptory, and it was obligatory upon the Judge to whom the petition was addressed, to issue the writ.

Section 21 of this Act provides: “If no 'legal cause for the imprisonment or restraint shall be shown, the party shall be immediately discharged therefrom.”

Is this contract then a legal cause for the detention ?

Our laws do not give the subjects of this country any such rights to restrain their servants under similar circumstances, and a foreigner cannot claim rights that do not inure to the subjects.

I hold that the detention of Wong Sow was illegal, and that he should have been immediately discharged therefrom.