THE PEOPLE OF THE STATE OF CALIFORNIA, Respondents, v. JAMES BRADY, Appellant, 40 Cal. 198

Temple, J., delivered the opinion of the Court, Wallage, J., and Spbague, J., concurring: The defendant, a white man, was convicted of the crime of robbery, committed upon Hing Kee, a Chinaman, who was permitted to testify against the defendant on the trial The ruling of the Court admitting this testimony against the defendant’s objections is assigned as error, and is the only question raised on this appeal.

Section 14 of the Act of this State concerning crimes and punishments, as amended in 1863, reads as follows: “No Indian or person having one half or more Indian blood, or Mongolian or Chinese, shall be permitted to give evidence in favor of, or against, any white man.” This

section is in full force, unless it is rendered inoperative in whole or in part by a clause in the Fourteenth Amendment to the Federal Constitution, which amendment, so far as material to this inquiry, reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall mate or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any within its jurisdiction the equal protection of the laws.” It is, claimed tbat tbe statute wbicb denies to tbe Ohina-man tbe right to testify against a white man is in conflict with this amendment, because it deprives tbe Chinaman of some degree of legal protection which it accords to tbe white man. Tbat is to say, tbe ability to testify is a protection, because it tends to deter from crime against tbe person, by adding to tbe probability of conviction and punishment.

It is not charged tbat tbe law discriminates against tbe Chinaman, in affording a remedy to tbe white man for an injury, wbicb upon tbe same state of facts is not afforded to tbe Chinaman. Tbe facts being proven, tbe law pronounces tbe same judgment upon one as upon tbe other. Tbe same facts being made to appear, tbe law provides for tbe China-man tbe same protection against threatened violence as for tbe white man. Tbe protection of tbe whole police power of tbe State is afforded to them under tbe same circumstances, in tbe same way, and on precisely tbe same terms as to any other class of inhabitants.

If a crime be committed against tbe person or property of a Chinaman, tbe same punishment is meted out to tbe criminal,' when convicted, as though tbe crime bad been committed upon a white man. But not only do tbe same consequences follow upon tbe same state of facts being proven, whether they affect Chinese or white men, but tbe law affords tbe Chinaman every means of bringing tbe facts to tbe knowledge of tbe Court for judicial action tbat is afforded to tbe white man. If a Chinaman be robbed, tbe commission of tbe crime may be proven by tbe same means as though be were a white man.

If a white man be robbed by a white man, tbe fact cannot be established by Chinese testimony; and yet it may frequently happen tbat tbe fact cannot be proven in any other way. Tbe same is true of a robbery committed upon a Chi-naman by a white man. If a white man be robbed by a Chinaman, tbe fact may be proven by tbe evidence of white men or Chinese; and this is true as to a robbery committed upon a Chinaman by a Chinaman. It is plain, therefore, tbat a crime is punished in tbe same way and may be proven by tbe same means in all cases wb.etb.er a white man or a Chinaman be the injured party.

But it is said that if the general disqualification of Chinese to testify for or against a white man prevents them from testifying when a crime is committed upon them, the law is to that extent unequal and therefore void; that the right of the injured party to testify stands upon a very different footing from the right to call other witnesses. He may have a right to the use of the same species of evidence, but if he be the party concerned, he should also have the same right to offer himself as a witness.

A crime may be committed • under such circumstances that the party against whom it is committed is the only person by whom it can be proven. If the injured party be a white man, his testimony alone may be sufficient to cause the punishment of the wrongdoer, and by punishing a past wrong prevent a future wrong, and the Chinaman not being able to do this, is less protected.

That although the law threatens the same punishment for a crime committed upon the person of a Chinaman as when committed upon the person of a white man, the certainty of the punishment, and therefore the amount of protection afforded, is necessarily lessened by his exclusion as a witness. I confess myself unable to see the force of this position, notwithstanding the confidence with which it is relied upon by the ingenious counsel who has made an interesting and able argument in the case on the part of the people.

The white man is not permitted to testify because he is the injured party, but because he is a competent witness on other grounds. The Chinaman is not excluded because he is the injured party and also a Chinaman, but because on other grounds he is an incompetent witness. The fact that he is the injured party is an immaterial circumstance in this discussion. His disadvantage is one shared, in a greater or lesser degree, by all who are so circumstanced as not to be surrounded by persons competent to testify.

The fact that his countrymen, who are more likely to be his associates, are excluded, may be said to have an effect, in some degree, in the same direction. But this is not owing to the inequality of the law. That affords to all the same instruments of proof. All general laws operate more or less unequally— not on account of tbe partial provisions of tbe law, but from tbe various circumstances in wbicb those upon wbom tbey operate are placed. Tbe white man who employs Chinese as workmen upon bis estate, is less likely to be able to prove offenses against bis property than one who employs other laborers.

He may, therefore, be said to be less protected; but this is tbe accident of bis circumstances, and not the partiality of tbe law. He happens to be isolated from those who are competent to testify. But it is contended that, although another may be so circumstanced as to be deprived of the equal protection of the laws, this is always accidental and not the necessary consequences of the provisions of law.

As to them the law is impersonal, and deprives them of no advantages afforded to others under the same circumstances; but the law excludes Mongolians, as a class, and itself creates the circumstance which places them at a disadvantage. I think I have shown that there is no difference in principle — that the law does not cause them to be isolated from those competent to testify, although the fact of their exclusion may increase the chances that they will be so isolated.

But if the position be admitted then the question resolves itself into this: Has the Legislature the power to declare classes of persons such as Indians and Mongolians incompetent to testify? That it may rightfully do so independently of the Fourteenth Amendment cannot be questioned. The Legislature of every State in the Union, so far as I know, and certainly of nearly every one, has continuously asserted and exercised this power during its entire history. Ho declare who shall be competent to testify and to regulate the production of evidence has always been considered a proper exercise of legislative power.

It has excluded persons for nonconformity of religious belief, for inability to understand the nature of an oath, for having been convicted of an infamous crime, for having negro blood, for being an Indian or a Mongolian, and I am not aware that the power of the Legislature to pass such laws as ever been questioned. Now, in passing these laws, the Legislature does not act arbitrarily. It does not exclude a person because of his unbelief in popular theogical dogmas, nor the Mongolian for being a Mongolian merely.

The theory of the law and the idea upon which these laws are based is, that every person shall be permitted to testify who can aid the Court in coming to a correct conclusion as to the facts upon which it is to adjudicate.

The reason why the testimony of such persons would be valueless in judicial investigations may be that they are incapable of testifying intelligently; that they are too unreliable to be of any service; that their admission would probably defeat justice by producing false testimony, or that they have particular prejudices against certain classes which would cause their evidence likely to do harm where the rights of such persons are concerned; such evidence, it is presumed, would impede rather than advance the cause of justice.

It would not tend to protect any, but might cause the conviction of the innocent, or the acquittal of the guilty. Could counsel be convinced that Chinese testimony could never have any weight, or that it would be more likely to cause the escape of the guilty than their punishment, and as likely to cause the conviction of the innocent as the guilty, he would not think their exclusion deprived them of any degree of protection to which they are fairly entitled; and yet this is what the Legislature have decided, .and had a right to decide, in enacting the law.

I am not called upon to defend such legislation, or to deny that a more reasonable rule would be to allow the Courts to seek information from such sources as may be available, and to give to testimony such weight as it may deem it entitled to. The power of the Legislature to pass such laws is too well established to be called in question at this late day. (Duffy v.

Hobson, October Term, 1870.) If I am correct in the proposition that this is a proper subject to be regulated by legislative action, and that the ground upon wbicb the Legislature acts is tbat such evidence could not aid the Courts in tbeir investigations, but would tend to defeat ratber tban promote the ends of justice, then it seems to me it must follow that the Fourteenth Amendment to the Federal Constitution can have no bearing upon the subject.

It cannot be intended to compel the Courts to occupy their time in listening to evidence which cannot influence their judgment, or to deprive the State of the power to make such regulations as the cause of justice may absolutely require* I am not. called upon to say what should be the ruling if it were to appear that, under the pretense of regulating the production of evidence, the State has really deprived any person within its jurisdiction of any substantial means of protection afforded to others by its laws.

There is no reason to suppose that the law in question was not passed in good faith, and with the honest purpose of promoting the cause of justice, even if that could be called in question here. The relation between the States and the Federal Government would forbid any such suspicion upon the motives of a State Legislature on the part of the Federal Government, and certainly this Court, a co-ordinate branch of the Government, cannot impugn their motives.

And, independently of the comity which should exist between the departments of the Government, we can hardly conceive it possible that a legislative body in a Christian country would deliberately deprive its Courts and police of any proper means for the detection and prevention of crime; that it would willingly leave any class unprotected, so far as the commission of crimes against them are concerned; this would directly encourage crime, an'd lead inevitably to the demoralization of* society, and consequently the insecurity of all.

To withdraw from any class the protection of the police laws, through prejudice or from a desire to discourage their presence, would be inhuman and barbarous. We cannot attribute any such motives to a co-ordinate department of the Government, and we must conclude that the provisions of the law under consideration were suppos-eel by tbe Legislature to provide every means for tbe detection and punishment of crime consistent witb justice and tbe safety of tbe community. At tbe time tbe amendment was adopted similar laws existed in nearly every State of tbe Union.

They bad never been regarded as depriving any one of any degree of protection which tbe law afforded to others, or depriving tbe Courts of any proper assistance they could otherwise have bad in their investigations. They were sustained on tbe ground that they were necessary that tbe guilty might be punished and tbe innocent escape. Tbe amendment did not render such laws less appropriate or less necessary, and there is nothing in tbe principle established by it which conflicts witb tbe theory of such laws.

It cannot be supposed, therefore, that in adopting tbe amendment it was intended to deprive the State Legislature of their power over tbe subject.

I think * I' have shown that there is no inequality in tbe protective laws of this State; that tbe law interposes tbe same shield for the protection of tbe Chinaman as for tbe white man, and that it imposes tbe same punishment when be has been injured; that upon tbe same facts it pronounces tbe same judgment, without regard to the person upon whom it may fall; that it dispenses equal justice to all; and further, that in tbe rules of evidence established by tbe Legislature there is no inequality, or, if there is, it is made in furtherance of justice, and is unavoidable; that in excluding Chinamen the Legislature exercises a discretion properly entrusted to it, and that a proper exercise of it in the interests of justice, although it may exclude a China-man where another is allowed to testify, is not a violation of the Fourteenth Amendment.

I cannot think, however, that this last inquiry was necessary in this case. The inquiry should stop when it is ascertained that upon the same state of facts the same legal consequences follow to all. If the laws themselves are equal, imposing the same burdens upon and affording the same remedies to all, under the same ascertained circumstances, the requirement of equality is satisfied. Limitations upon, the powers of tbe State Governments are appropriate in tbe Federal Constitution.

It may be necessary to restrain tbe powers of tbe State tbat it may not interfere witb tbe General Government in tbe exercise of tbe powers granted to it, or tbat a State may not, by its individual action, defeat any of tbe purposes for wbicb tbe General Government exists. To tbe extent, however, of tbe powers not granted to tbe General Government or denied to tbe States, tbe power of tbe State is supreme. It enacts laws of its own right and should be allowed to execute them in its own way. Tbe Federal Government cannot supervise its exercise of tbe powers it undoubtedly possesses.

It is no part of purpose for wbicb that Government was created, to stand guard over the' States to see tbat they execute their laws in a manner not to oppress those who are subject to them. Tbe State Government is complete in itself, so far as matters of internal government are concerned, and contains in its own Constitution every necessary safeguard against improper use of its powers, and every protection to individual rights, wbicb tbe people thought necessary. Buies of evidence are a part of tbe contrivance by means of wbicb tbe State executes its laws.

They are alnrays tbe means to an end, and if tbe law be one tbe State has a right to pass, I cannot think it was intended to interfere witb tbe means the State may adopt to enforce it. This view is sustained by a consideration of tbe particular purpose, tbe amendment was designed to accomplish. Its chief purpose undoubtedly was to protect negroes in those States where slavery recently existed. Under those laws it sometimes happened tbat tbe law pronounced a different judgment upon a negro from tbat it pronounced upon a white man upon tbe same state of facts.

Tbe law provided a different punishment to tbe negro when convicted of crime from tbat wbicb was provided for a white man when convicted of tbe same crime, and in other respects tbe law discriminated against tbe negro. Tbe amendment was evidently intended to prevent these inequalities. It could not have been intended to authorize the Federal Government to supervise the State in the exercise of its undoubted powers.

Such a construction would reduce a State to condition of a mere municipality, exercising its meagre powers by sufferance, and render meaningless that clause of the Constitution which recognizes the possession of reserved powers by the States. The counsel for The People cites the case of The People v. George Washington (36 Cal., 658) as supporting his views, and it must be admitted that some of the positions taken in that case are inconsistent with the views I have expressed in this case.

That case presented for consideration the constitutionality of the Act of Congress commonly called the Civil Bights bill, and its effect upon the fourteenth

section of the Act of this State, concerning crimes and punishments, cited above. The Court decided the Act of Congress constitutional; that it was authorized by the Thirteenth Amendment to the Federal Constitution, which provides that “neither slavery nor involuntary servitude, ex-sept as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction;” and also in the second section, that Congress may enforce the amendment by appropriate legislation.

I dissent, both from the reasoning used and conclusions arrived at in that case, for the reasons given by Mr. Justice Crockett in his dissenting opinion, and for reasons which will readily suggest themselves from what I have already stated. If I am correct as to the theory upon which legislation concerning the competency of evidence is based, it seems to me it must follow that the positions taken by the Court in that case are wrong.

There is one reason why [ disapprove of that case, however, which, as it has a direct bearing upon this case and differs a little from positions taken by Judge Crockett in that, and is, withal, an important matter, I propose to state.- It is stated in the opinion of the Court, in that case, that che object of the first

section of the Thirteenth Amendment is not only to abolish slavery, but to deprive Congress and tbe States of tbe power to reduce any person within the jurisdiction of the United States to a state of slavery. That is to say, so far as its future operation is concerned it is a mere limitation upon the legislative power of the States and of the United States. That the second

section confers upon Congress the power, by appropriate legislation, to secure all persons in the United States in the full enjoyment of that liberty contemplated by thafirst section; ‘ c or, in other words, the Thirteenth Amendment was at least intended to make all men born in the United States, without reference to race or color, equal before the law in respect to 'personal liberty— one of the absolute rights of man — and to give Oengre&i power to pass any and all laws necessary and proper to ae complish that end.” The first

section is said by the Court, and I think correctly, to be simply a limitation upon the power of the State to establish slavery or reduce any one to a state o~ slavery or involuntary servitude; and I cannot think that the second

section which simply empowers Congress to enforce this limitation upon the legislative power of the State, confers upon Congress any power to establish a police system for the internal government of the State, or by its laws to annul the laws of a State, or to control their operation in any way whatever. There is nothing in the language used in the first

section of the amendment which can be construed into a grant of power. It is a restriction, and not an enlargement of the powers of the General Government, if it applies to the General Government at all. It is a limitation upon the States, depriving them of the power to establish slavery. If it were within the province of the Federal Government to establish a system of police laws for the protection of individuals within the States, the language is inappropriate to confer any power over the subject matter of the section. The apparent purpose of the amendment was not to prevent the illegal duress of individuals.

It was aimed exclusively at the institution of slavery as established by the laws of tbe States. It was directed to tbe States in tbeir sovereign capacity as law-makers, and was not intended to afford relief to individuals unlawfully deprived of tbeir liberty. Its purpose is satisfied when sucb restraint is rendered illegal. Tbe right to personal liberty is secured by tbe amendment itself, and it is not necessary tbat Congress should pass laws upon tbe subject, much less give to any one political rights which may add to tbeir importance and enable them to maintain tbeir state of freedom.

This is absolutely secured by the Constitution itself, which renders void all laws for tbeir enslavement. They, are not to be armed tbat they may resist State laws, or given importance tbat they may influence State legislation. Tbe second

section of tbe amendment certainly contains no substantive grant of power. It merely authorizes Congress to enforce tbe amendment by appropriate legislation. Its scope is limited by tbe first section. Tbat is a mere limitation upon ,the powers of tbe States. It authorizes Congress, therefore, to pass sucb laws as under our system of Government would be appropriate to enforce a limitation upon tbe legislative power of a State, and no other. It is not an affirmative grant of power before which State legislation must give way, like tbe power to establish uniform laws upon tbe subject of bankruptcy.

Tbe laws of tbe State must be tried by tbe language of tbe Constitutional inhibition and not by tbe laws of Congress. Tbe power to enforce a limitation upon tbe power of a State cannot be construed to authorize Congress to .enlarge tbe limitation if necessary to render it effectual. Tbe State law in question ought, therefore, to have been tested by tbe language of tbe Constitution and not by tbe Civil Bights bill. Nor is it appropriate legislation for Congress to nullify a law of tbe State, either directly or by preventing its execution.

It could only do so when tbe law is unconstitutional, and to determine tbat question is tbe province of tbe judiciary. It would compel tbe people unnecessarily to sustain two police systems — one to execute tbe laws, and tbe other to control and, in certain cases, to prevent tbeir execution. It would interfere with, efficiency of tbe police system of tbe State, and almost inevitably lead’ to conflicts between tbe two governments. Tbe two governments, however, are not antagonistical, either in theory or interest.

They are parts of one system, supplementary to each other, together supplying all the governmental wants of the people. They are both under the control of the people, but in their operation should be independent of and, therefore, a cheek upon each other. Ever since the Federal Government has been m operation it has been the practice to test the constitutionality of State laws, and enforce the limitations upon the powers of the States by judicial decisions.

The claim on the part of the Supreme Court of the United States of the right to pass upon these questions, even when arising in the State Courts, though not always conceded, has been generally acquiesced in. Constitutional limitations, so far as they affect individual rights, have always under our system been enforced by-judicial action, and I have no doubt a proper construction of the second

section of the Thirteenth Amendment would confine legislation on the part of Congress to laws providing for judicial action in the premises. But the claim on the part of Congress of the right to interfere with or control the operation of State laws, is utterly repugnant to our system of Government. “ The genius and character of the whole Government seem to be,” said Chief Justice Marshall, in Gibbons v.

Ogden, (9 Wheaton, 196) “that its action is to be applied to.all the external concerns of the nation and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the Government.” The division of powers between the State and Federal Government, and the independence of the States within the sphere of their reserved powers, and their exclusive right of legislation as to most of the objects for which Governments exist, has always been considered the principal and most valuable safeguard fot civil liberty afforded by our system.

The right of local legislation for each Colony is said by Mr. Madison to have been the fundamental idea of the Revolution. That the Colonies were with each other and with Great Britain co-ordinate members of one empire, under a common executive or sovereign, but not united by a legislative sovereign.' The legislative power was maintained to be as complete in each American as in the British Parliament. (Madison’s Virginia Report.) The States, said Mr. Hamilton, can never lose their powers, till the whole people of America have lost their liberties.

When the Federal Constitution was formed, no idea was more fixed than that the States should continue independent of Federal control as to all reserved powers, which were to include entire control over all matters exclusively appertaining to a particular State. The Colonies, with their local Legislatures, had been the nurseries of civil liberty, and to the States, their legitimate successors, was intrusted the duty of maintaining it.

Chiefly to secure the continued existence of the States, to uphold and maintain them as independent States, and thereby to secure to the people and their posterity the blessings of liberty, the Constitution and the Union were formed. At that time no writer was more popular with American statesmen than Montesquieu. From him was derived the idea of dividing the Government into three departments— the executive, legislative and judicial — as an essential security for the liberties of the people.

Another idea advanced by him, which was very popular at that time, and often quoted, was that small States naturally gravitate to a republican form of government; larger States to a monarchical, and vast empires to a despotic government. The first was most favorable to individual liberty; the last, to national power. They claimed to have secured the advantages of the first by assuring the independence of the States, and the last by establishing the Federal Government as a common agent, which, in the exercise of certain limited powers, should be supreme over all.

It was more efficient than tbe Confederacy it displaced, for it executes its own laws. To it was intrusted tbe control of tbe foreign relations of all tbe States. It could declare war, and, to carry it on, wield tbe entire military power of tbe Union. As to all tbe world, at least, except its own members, it presented us as one nation.

Within tbe sphere of its limited authority it wielded tbe power of a vast empire with all tbe efficiency of tbe most despotic Government, and yet it was supposed that it could not be dangerous to tbe liberties of tbe people, for its powers were limited and well defined, and could be used but for a few purposes, and those in which all tbe States bad a common interest. Tbe great mass of governmental powers were still reserved to tbe States.

Tbe absolute right of uncontrolled local legislation upon all subjects most intimately connected with individual rights and most essential to tbe maintenance of personal liberty was reserved. Tbe Federal Government was created by tbe compact of sovereign States, and their continued existence in tbe uncontrolled exercise of their powers, is an essential element of tbe system. This is doubtless what Hamilton meant when be said that for tbe General Government to supersede or destroy tbe State Governments would be to commit suicide.

It rests upon them as tbe dome rests upon and yet upholds tbe columns which support it.

We cannot conclude from any doubtful language that it was intended to strike from tbe Constitution tbe fundamental idea upon which tbe Union was constructed — to rob tbe Government of its crowning glory and most beneficent principle; and bad such been its apparent meaning, we ought to be diligent to find out some construction which would be less pernicious in its consequences; we should regard it as we would a law apparently legalizing murder or robbery; we could not conclude such a purpose was intended unless it is expressed in unmistakable language.

In this case, however, we are not forced to any such extremity. Tbe most obvious construction is that which is most in accord with, the principles of onr government, and which preserves its beneficent features. The judgment reversed and a new trial ordered.