The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-09-22
WHAT A BOTHER!
Curious Points Involving
Jurisdiction.
WHO MAY DEPORT CHINESE,
The Cases From New Mexico and a
United States Marsfal's Posi-
ton in Them.

"And your petitioners are informed and
verify believe that the detention by the
said John Wise, Collector of the Port, as
aforesaid, is without jurisdiction and void
for the season that the said United States
Marshal had no jurisdiction to order your
petitioners deporled for having failed to
comply with the provisions of section of
the act hereinbefore referred to-
That is the way the closing paragraph
reads in a petition filed in the United
States Circuit Court yesterday for writs
of habeas corpus in behalf of the'seven
Chinese brought from New Mexico by
Deputy Marshal Moore and turned over to
Collector Wise, and if there are 20 unin-
territorial blunders in it the Marshal of
New Mexico is placed in peculiar light.
1t is generally understood that the office
of United States Marshal is an executive
not judicial one. but the document filed
by Attorneys Riordan and Harvey Brown
directly charges Marshal w. j. McKeys
with having examined the Chinese at
Deming, and, as may be seen, indirectly
accuses him of ordering their deportation.
1t is very much mixed up case, and
will probably be heard the first thing this
morning. tor Judge MeKenna made an
order TO have the bodies of An Chew, zee
Toy, zee Lee, All Ling. All Way. zee
Bill and An Wah produced forthwith
The paper states that they were in the
country at the time of the passage of the
Grary act Of May 5, 1892, and are Chinese
lab0rers; and that they are entitled to re-
main mere ''in that they were within the
United States at the time of the passage
of the act OF Congress. approved May g.
1882, entitled An act to execute certain
treaty stipulations relating TO Chinese"
They were also here when the treaty OF
NJ ,Iar in aor
were here as early as July, 1879. aud had
come to the country with the intention of
remaining and taking up their residence
thereil, and with no intention Of return
ing to China"
Il is further stated that they are here in
pursuance of the Invitation extended 10
them" by the Burlingame treaty, which
was finally concluded and signed on july
%, 1868, and portion of which is quoted
as follows:
The treaty parties cordially recognize
the inherent and inalienable right of man
10 change his home and allegiance, and
also the mutual advantage from the migra-
ton and emigration Of their citizens and
subjects, respectively, from the one conn-
try 10 the other. for purposes of curiosity,
of trade or of permanent residence"
And the same treaty also declared, says
the petition, THAT the Chinese subjects re-
siding IN the United States shall enjoy the
same privileges. immunitieS and exemp-
tiOns. in respect to residence, as may there
be njOyed by the citizens or subjects OF
the most favored nation
So far the document did not differ apart
from the reference to Marshal McKeys
from the applications for writs made to
! United States District Judge Morrow in
The cases of the twenty Los Angeles
Chinese, but the recital Of the modus
Onerandi by which the New Mexican
offenders came into the custody of COllec-
iSa nf in rIs
diction, and Ii is for that reason that
Judge McKenna will listen to arguments
in the matter.
The history OF the arrest examination
and remanding OF the Chinese is then
given. They were arrested on August IS
at Lordsbnrg, n. Mex, under a charge of
being illegally in the country in violation
OF the exclusion act of October. 1888. II
was supposed they had been smnggled
over the Mexican border. After their
arrest they were taken before A. j. Nc
Keys, United States Marshal at Deming.
\. Mex, aud were examined on said
charge" according to the verbiaye of the
paper; and the curious allegation follows:
That upon the hearing and eXamin-
alton of said charge. the United States
Government not only failed to establish
the charges made. but admitted that the
testimony absolutely failed TO show that
the petitioners had unlawfully entered the
United States, and thereupOn the United
States District Attorney asked
the United States Commissioner to order
the petitioners deported because they had
failed to register as required by section
of the GeaTy act."
the commissioner made the order upon
this last ground-that they lad failed TO
register-and the Chinese were brought to
this city and turned over to Collector Wise
AprOpos of the question of jurisdiction.
section II of the exclusion act of 1888
allows a commissioner TO make an order
of deportation, bnt under section of the
Geary act only United States Judge can
make such an ORDER In no case, nf course,
can a marshal act a judicial officer.
If it can be established that the Marshal
made the order the Chinese will soon he
free men-until, at least, other proceed
ings might be commenced against them.
If, however. the reference TO the Marshal
as an examining and committing officer
proves TO be a clerical or even intentional
error the ha beas corpus proceedings may
fall fat until the blunder be corrected.
Then the sole question 10 be determined
will be as To the conim ssioner's authority.
Collector Wise has been instructed by
Secretary Carlisle 10 return the Chinese TO
the custody of Marshal McKeys, ana IL
may turn out that quite bill of expense
will be taxed against The Marshal
Whether that officer could be made de-
PENDANT in seven suits for damages for
unlawful arrest, imprisonment and trans
porlation may yet have TO be determined.
Whatever steps the attorneys will take to-
day are enigmatical. They charge that
Collector Vie unlawfully holds the Chi
nese. and he must admit that they are not
properly in his custody, SO their release
seems assured already.
A dispatch was also received by Col
lector Wise from Secretary Carlisle yes
terday respecting the Along family.
Having been advised by the Hawaiian
Minister that the Afongs are Hawaiians.
the Secretary instructs Mr.. Wise to allow
them TO land.