The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-09-24
A TEST OF THE GEARY Law.
The Chinese Exclusion Act to
Go to the Courts.
One Of the Mongolisns Struggled in by the
Haloyon Furnishes the Base for the Legal
Battle on the GeaIy Act.

The first test case In this State of the new
Chinese exclusion law is now fairly under
way and will doubtless be carried to the
Supreme Court Of the United States should
the act be upheld by the Circuit Court.
The case is predicated on the alleged IL
legal entry of the Chinese landed at Mon
terey from the smuggling schooner Halcy0n.
Yesterday morning the preliminary hear
ing was heard before Commissioner Sawyer,
Attorney Riordan appearing for the Chi
nese and Assistant United States District
Attorney Witter for the Government
''In order to bring up the question of the
validity and constitutionality of the whole
act" said Mr.. Witter, ''the Government will
introduce no affirmative testimony in the
case, but ask that the provisions OF the new
law be e forced.
Mr.. Witter explained that under the new
law the burden Of proof was on the accused.
1t was for them to prove that they were en-
titled to residence in this country.
we also," said Dir. Witter. waive the
right 10 ask that the defendants be put to
hard labor, as provided by the law. before
being deported."
To this waiver Attorney Riordan objected.
I'VE object TO any pc nalty inflicted by
the Commissioner unless II cOmprehends
the full provision of the law Neither the
District Attorney nor the Commissioner has
any right TO waive any part OF the law,
which is mandatory In its provisions and
leaves discretion only TO the term OF I'M
pTisonment at hard labor within certain
limits"
1t was then decided that the nominal
penalty of five DAYS in the County Jail
should be imposed and that but one Of the
defendants, Lew Fong, should be proceeded
I'VE now object to any order in this case
being made by the Court Commissioner,
said Attorney RiOrdan.
1--WE hold that the new law makes these
criminal cases and as such the Commits
sioner has no authority TO finally dispose Of
them. He can only hold the defendants TO
the Grand Jury"
Commissioner Sawyer entered his judg-
ment just the same, as 1t was expected he
would. Said he:
This law changes entirely the usual pro-
cedare by assuming the accused 10 be guilty
and throwing upon him the burden Of
proof.
However. it is not In my province TO sit
in judgment on an act of Congress. l can
only obep il.
1.-THE judgment is that Lew Fong be i'm
prisoned in the County Jail at hard labor
for five days and then depOTIed. The cases
of The other eight defendants are continued. 3"
Then came the exceptions OF Attorney
Rlordan to the judgment. They were in
VIC iOllOh lux OiuCI
The defendant protests that the statute
is unconstitutional in that IL changes the
burden of proof and puts it ON the accused.
That, this being criminal case, the
Commissioner can only hold the defendant
to the Grand Jury
That under the constitution Of the
United States every defendant has the
right to trial by jury.
That no testimony has been offered by
the Government against the accused. and in
the absence of any testimony 10 that effect
the Commissioner has no right 10 fnd the
accused guilty.
THAT section 4 Of the new law, which
permits the Imprisonment and deportation
of those convicted, makes the case criminal,
and that under the general law the COM
missioner has no authority to convict the
defendant"
Upon these points the case will be taken
to the Circuit Court as soon as possible.
One Of Mr. ki0rdan's objections to the ex-
cluslon law has already been passed upon
by the District Court in the State OF Wash
ingtOn.
This Is the objection to section 4.
The case was the United States vs.. Wong
Sing, heard before Judge Hanford.
The court held that this section does not.
because of this infamous punishment.
render it necessary under the constitution
TO proceed by indictment against all Chinese
persons arrested under the act; for II is the
evident intention of Congress that Chinese
shall be removed by summary proceeding KS
"S heretofore, and to give effect to all tile
provisions of the act it should be construed
AS requiring criminal prosecutions only in
cases in which the GOVERNMENT is able to
procure evidence to justify the same"