82 F. 22 | U.S. Circuit Court for the District of Northern New York | 1897
The petitioner was brought before a United States commissioner charged with violation of the Chinese exclusion act of May 5, 1892, and, after hearing, an order was made removing him to the empire of China. A witness was produced who swore to facts which entitled the petitioner to remain in this country. This testimony was wholly uncontradicted. The district attorney, thereupon, requested that the petitioner be sworn, which, under the advice of counsel, he declined to do. The evidence being closed the commissioner ordered the petitioner deported upon the sole ground that his failure to be sworn cast so much doubt upon his right to remain in the United States as to justify his removal therefrom. The petitioner, thereupon, sued out this writ.
The simple question, then, is, whether the failure of a Chinese person to be sworn at the request of those who are endeavoring to deport him raises such a presumption against him as to warrant his removal. But for his refusal to be sworn he would be entitled to remain. This was conceded on the argument. Does his refusal raise a presumption against him sufficiently strong to overthrow the positive testimony in his behalf? Is his silence alone sufficient to support a judgment which involves imprisonment and custody for months while being transported thousands of miles by land and sea? It is thought not. If the. petitioner were charged with an offense or a misdemeanor, then, under the act of March 16, 1878, his failure to be sworn “shall not create any presumption against him.”
But it is said that the act of 1892 is political and not criminal in character and that the provision for imprisonment at hard labor is unconstitutional. The decisions upon this question are not in accord and it is unnecessary to decide it, for, upon the facts her#, the presumption, assuming one to exist, is not sufficient to overthrow uncontradicted testimony and furnish the only foundation for the judgment. If something had occurred to discredit the testimony offered on behalf of the petitioner, if there had been a conflict upon the facts, if some witness had sworn to a circumstance