The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-04-25
A FAMOUS CASE.
Regina VS.. All Hung Argued Before
the Supreme Court in Panco.
Is the Chinese Restriction Act
of 1888 Constitutional?

Queen VS.. All Hung.
w r. Castle opened for the appel
liant and read the papers. Mr.. Hart
we'll for the appellant said: Irecog
nize the Importance of this case and
the fact that there is strong but
vulgar prejudice against Chinese by
some of the community. The Court
happily is free from all such feeling
/ have tried in many Chinese cases
arising in these Courts to cause a
result to be reached different to
what the Court finally arrived at.
In the famous Chow Bick Sit
case [ conceded with the view of the
law as to the power of the Legisla-
ture to restrict and control general
immigration. But l contested the
power of the Board Of Immigration
to make rules which would result
in indefinite Imprisonment.
In the Leong Team case in the
seventh of Hawaiian Reports, the
Court arrived at the conclusion that
the entry permits were not transfer
able.
In the case of l.. Ahlo and others
regarding the right to vote I regret
that the arguments could not have
been more deliberately presented,
and the result might have been diff
ferent, for it resulted in disfran-
chising Hawaiian citizen.
In this case we trust that we shall
be able to so convince Mr.. Justice
Dole that he will feel free to change
his opinion and agree with the Court
in reversing the former decision.
Young Nap testified that All Hung
said he got his permit in China, that it
was procured from some other person.
On this the learned Justice finds that
the permit was not personal to him
self; that it was false permit; that
he begun the commission of his
offense without Hawaii in China and
contaminated it i'll this kingdom.
These facts do not show, nor tend to
show that the permit WIS not An
lungs. He might have sent and
got it, having been a former res
ident and this would not have been
illegal. The assumption of the Court
is: chat upon the evidence, All Hung
procured false permit; that is, one
issued to some one beside himself,
and falsely personated the person
named therein. These findings are
not legally justified by the evidence.
On the contrary the law is that tie
presumptions are in favor of the de-
fendant. The burden of proof is. on
the prosecution. Section Sc. OF the
Act of 1888 requires that the defen-
dant must show a valid permit. He
has done it and it lies with the pro-
secution to show affirmatively that
the permit, which is lawful one, is
not his own or personal to him.
In the Pactolus case the Court
held, and properly, that the Chinese
immigrant could not be supposed
to know the terms of the Hawai-
ian law of 1890. consequently he
could not be held to any criminal
liability for anything done while in
China. This must be held to apply
in this case. The Court can not take
jurisdiction of acts committed while
in China. If it can not, then what
ever was done here by the defendant
is clearly class legislation, for it ap-
plies only to Chinese. In the famous
case of Commonwealth VS.. McLorn
600 Mass.), the Court took iurisdic
ton of the ofense of manslaughter,
the victim dying after landing. But
this decision is holly contested by
eminent text writer's and by the dis
senting justice in that case. The
question of jurisdiction is clearly
stated byWheaton, by which it is limi-
ted to acts on vessels of the country,
by citizens of the country, and piracy.
The continuing jurisdiction applies
to some cases, such as larceny where
the stolen goods come into another
Jurisdiction. Here there was no
criminal act prior to coming into
Hawaiian Jurisdiction, where the
criminality is only that of one class
of persons.
In one of the earlier passenger
cases." Norris VS.. City of Boston,
cited by Judge Dole, in addition to
the point referred to, the case also
decides that the imposition of the tax
was unconstitutional in itself. In
this case the penalty of 5000 is placed
upon each Chinese after he arrives
in this country. In the cases arising
under the United States Exclusion
Acts, generally under habeas corpus,
the order is, if the applicant is law
fully detained, that he be returned
to custody to be put on the out
going steamer and sent back to
China. Upon review of the facts
in this case as cited, noted and found
in the decision, it is difficult to resist
the conclusion that the legal result
should have been different and that
the law is unconstitutional.
Mr.. CREIGHTON replied that an elab-
crate argument is not necessary, for
the points raised here appear to have
been answered IN the Leong Team
case, 7 Haw. 338. It is on ali tours
with this case. It is there held that
the purchase of a passport in China
is criminal; the attempt to land is
merely a contamination of the Of
tense. This was decided in 1888.
Subsequent to this, the Act of 1888
was passed with the sections addi-
tional to the former law making it
incumbent upon the defendant to
prove that he held permit personal
to himself.
All of the facts proved in this case
do not appear in the decision of Mr.