Disputed Points Los Angeles Times Jul 4, 1893, p. 2
Disputed Points. Wong Dip Ken Again Under Discussion. Argument on Section Four to the Geary Law. Belief Advanced That the Imprisonment Clause is Void. Judge Ross Takes Such a View of That Provision--Many More Complaints on File Against Chinese Laborers.
Wong Dip Ken will probably start very soon on his return trip to China, if there is enough money left in the fund provided for carrying into effect the Geary law at such a tine, for Judge Ross, in the United Sates District Court yesterday virtually declared the deportation clause of section 4 of the act constitutional. On the other hand, he decided, or at least allowed it to be assumed by counsel, that a portion of the same section, that which provides for imprisonment previous to deportation, was void and of no effect.
Having previously overruled the motion to dismiss the appeal from the decision of Commissioner Van Dyke, Judge Ross called the case, as set, yesterday afternoon promptly at 2 o'clock. United States District Attorney Denis was in his accustomed place as the representative of the government, while Frank J. Thomas, Esq., and A.B. Hotchkiss, Esq., constituted counsel for defense. As soon as the court signified that he was ready, Mr. Thomas arose and read the following paper, intended as an assignment of errors on the appeal:
"Comes now the appellant, Wong Dip Ken, by his attorneys, A.B. Hotchkiss and F.J. Thomas, with H.S. Brown and Thomas D. Riordan as counsel, and moves this court to vacate and set aside the judgment and order appealed from herein, and all proceedings thereunder and discharge the appellant, the defendant therein, because:
"The said commissioner had no jurisdiction to make said judgment or order; beause section 3 of the act of May 5, 1892, and said statute providing that any Chinese person on criminal procedure for the crime of being unlawfully within the United States shall establish his right to remain in the United States by affirmative proof, is unconstitutional and void, and it is in contravention of subdivision 3, section 9, article 1, of the Constitution of the United States, which provides that no bill of attainder or ex post facto law shall be passed.
"Said statute of May 5, 1892, is in contravention of subdivision 3 of section 2, article 3, of the Constitution of the United States, which provides that the trial of all crimes, except in cases of impeachment, shall be by jury.
"Said statute is in contravention of the sixth amendment to the Constitution, which provides that "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury," etc.
"Said statute is in contravention of that portion of the fifth amendment of the Constitution, which provides that no person shall be held to answer for a capital, or otherwise infamous crime unless on presentment or indictment of a grand jury, etc.
"Said statute is in contravention of that portion of the fifth amendment of the Constitution which provides that no person shall be deprived of life, liberty or property without due process of law.
"The statute is in contravention of the eighth amendment of the Constitution, which provides that excessive bail shall not be required, nor excessivee fines imposed, nor cruel and unusual punishment inflicted."
Mr. Hotchkiss then proceeded to take up the points recited serratem in his argument, finally urging especially the unconstitutionality of the clause of the Geary law providing that the heathens convicted be imprisoned previous to their deportation.
"If it is conceded that the clause relating to imprisonment is invalid, does that invalidate the other parts of the section?" inquired the court.
"Yes, sir, I think it does," responded Mr. Hotchkiss, to which the judge replied: "It does not by any means follow that if the imprisonment clause is unconstitutional that the others may not hold entirely good. If the one single clause is unconstitutional, it should be treated as null and void.
"If Your Honor takes that view of the matter, of course it puts a new light on the case," was the rejoinder.
From the language used by the court it seemed apparent that he had made up his mind on the question.
Mr. Hotchkiss then started off on another tack, by saying: "We will then have to ask for further hearing. It has just lately come to my ears that a lady named Mrs. Knox says that she can testify that the defendant, or appellant here, has resided in the country for over twenty years, and we would like to show that."
Judge Ross held, however, that the appeal was to be determined on the testimony offered before the commissioner, so this loophole of the defense was cut off.
A motion for a new trial was next made, which was also promptly overruled, to which counsel excepted.
Mr. Denis objected to an exception being allowed, and the ground of his complaint was acknowledged by the court as being well taken. He (Denis) mad a strong and eloquent argument in support of the respondent's cause, opposing generally the ground of unconstitutionality, and contending for the necessity of the imprisonment provision. Congress had put that provision in the law with a view of its being carried out, and it was a wise enactment. If the deportation clause was pronounced constitutional, and the imprisonment clause unconstitutional , then, upon the affirmation of a decree pf conviction, the Marshal would immediately be encumbered with the duty of effecting the deportation at once. If there were no funds to defray the necessary expenses, the Chinaman could neither be held nor sent away, and a resort to habeas corpus proceedings would surely secure his release from custody.
Mr. Hotchkiss answered the argument by pronouncing the preliminary imprisonment clause a provision for cruel and unusual punishment, not consistent with the laws of the land, As soon as the Chinaman entered the doors of the State's strong house he must have his queue cut off, and this was one of the most degrading marks that he could carry back to his native country. It made him an outcast for the rest of his natural life among his fellows.
Here the case rested, upon the request of Mr. Denis that he be allowed time in which to prepare briefs in support of his argument on the constitutionality of the disputed imprisonment clause, the court ordering that both sides have five days to prepare such papers.
From the developments yesterday, the general understanding is that a final ruling will be made affirming the decision of the commissioner in all points, save that of the imprisonment sentence. If such a course is taken, there will undoubtedly be many more arrests made, as the United States District Attorney has on file in his office nineteen other complaints made against Chinese laborers, charging illegal residence.