People v. Washington

Mr. Justice Crockett delivered the following dissenting opinion, in which Mr. Justice Sprague concurred:

Being unable to agree with the majority of the Court, in the conclusions at which they have arrived in this case, I propose to state the reasons which have influenced my judgment.

Section fourteen of the statute of this State, concerning crimes and punishments, provides that “no Indian or person having one half or more of Indian blood, or Mongolian or Chinese, shall be permitted to give evidence in favor or against any white person.”

The defendant iu this case is a negro, born within the United States, and is accused in the indictment of robbing a Chinaman; and it was proposed at the trial to support the indictment solely by the testimony of Chinamen born within the Chinese Empire. The Court below ruled out the evidence on the ground that the testimony of a Chinaman was not admissible against a negro, under the conditions stated, and the propriety of this ruling is the only question presented on the appeal.

The statute only disqualifies Indians, Mongolians and Chinese from testifying for or against “ any xohite person.” It was never doubted that they were competent to testify for or against each other, and it has been the uniform practice of the Courts of this State to admit such testimony without any question of its propriety,- so far as I am advised. Uor do I understand the majority of the Court as maintaining the contrary, except upon the grounds that by the Thirteenth Amendment of the Federal Constitution and the Act of *673Congress of April 9th, 1866, generally known as the Civil Eights Bill, the statute of this State, before quoted, has been in so far superseded or modified as to place the negro, born in the United States, in respect to all his civil rights, on the same footing with the white man; and assuming this to be his status, the argument is, that inasmuch as a foreign born Chinaman cannot, under our statute, testify against a white person, ergo, he cannot testify against a native born negro, who, by the Act of Congress, is endowed with precisely the same civil rights that appertain to white persons. The first section of the Act of Congress provides “ that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding.”

It is said that under this section the native born negro is entitled to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens; and that in this State one of the laws of which white persons have the benefit, for the security of their persons and property, is the fourteenth section of the Act concerning crimes and punishments already quoted, whereby Mongolians and Chinese are prohibited from testifying against white persons, and from this the argument is deduced that the native born negro is entitled to the benefit *674of that provision to the same extent as white persons. Without stopping to inquire into the soundness of this construction of the Act, I proceed to state why, in my opinion, the Act itself is in violation of the Constitution of the United States, and therefore void.

It may be safely assumed as a political and legal axiom, maintained by the Courts through an unbroken series of decisions, and by eminent statesmen of all shades of opinion, that the Government of the United States is one of limited and enumerated powers, and that Congress can exercise no powers except those expressly granted in the Constitution, and such others as “ shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or any department or officer thereof.” (Art. I, Sec. 8, subdivision 19.) It is quite as well established by the same weight of authority, that the several States in their sovereign capacity retain all the mass of powers which a sovereign State can exercise, which are not, either expressly or by necessary implication, granted to the Federal Government. I am not aware that these propositions are questioned or denied by any respectable statesman or jurist at this day. It is not claimed by any one that the Constitution of the United States, prior to the adoption of the Thirteenth Amendment thereto, conferred upon Congress, either by express grant or by necessary implication, the power to declare by law, paramount in its obligation to all State laws, what persons or classes of persons in the several .States should or should not be entitled to “ make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens,” and that such persons “ shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding.” Prior to the adoption of the Thirteenth *675Amendment, it was conceded on all sides that each State had the exclusive right to prescribe by its own Constitution and laws who should or should not be entitled to make and enforce contracts, sue and be sued, and give evidence in its Courts, inherit, purchase, lease, sell, hold and convey property, and to define the punishment, pains and penalties to be inflicted on any violator of its laws, subject, however, to the limitation contained in Article IV, section two of the Constitution, which provides that “ the citizens of each State shall be entitled to all privileges and immunities-of citizens in the several States.”

Subject only to this limitation, it has been the practice from the earliest period of our existence as a nation, for each State, by its Constitution and laws, to exercise these powers unquestioned, often discriminating between classes of its own citizens, as its views of public policy dictated. The proceedings and debates of the Convention which framed the Constitution render it morally certain that the States which were represented in that august body would not have conceded to the Federal Government the power to interfere in such vital questions of their internal policy as those relating to the making and enforcement of contracts, the prosecution and conduct of suits in their Courts, the law of inheritance, the tenure of property, and the punishment of crime. These embraced the most important functions to be exercised by any Government for the protection of private rights and the preservation of public order. Deny to a Government the right to regulate, at its absolute discretion, the laws of inheritance, the tenure of property, the conduct of suits in its Courts, and the punishment of crime, and but little will remain which will be worth preserving. At an early period after the adoption of the Constitution, fears were entertained that there might, in the future, grow up such a latitude of construction as gradually to abridge the power of the States over their internal policy, and to absorb in the Federal Government important powers reserved to the States. Consequently, in 1'789, only two years after the adoption of the *676Constitution, Congress proposed ten amendments to it, which were afterward duly ratified, and now form a part of that instrument. The tenth amendment is in these words, to wit: “ The powers not delegated to tne United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”

In commenting upon this clause, Mr. Justice Story says: “ This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution. Being an instrument of limited and enumerative powers, it follows irresistibly that what is not conferred is withheld, and belongs to the State authorities, if invested by their Constitutions of government respectively in them; and if not so invested, it is retained by the people as a part of their residuary sovereignty.” And again he says: “Its sole design is to exclude any interpretation by which other powers should be assumed beyond those which are granted.” (Story on the Constitution, Secs. 1,907, 1,908.)

Assuming this to be the true theory of the Constitution, as it unquestionably is, no clause can be found in that instrument, unless it be in the Thirteenth Amendment, proposed February 1st, 1865, which confers upon Congress, either expressly or by implication, the power to enact the Civil Bights Bill; and, as I understand the opinion of a majority of the Court, it maintains the constitutionality of the Act solely on the assumption that the Thirteenth Amendment conferred upon Congress the requisite authority to pass it.

That amendment is in these words ;

“Section 1. Neither slavery nor involuntary servitude, except 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.

“ Seo. 2. Congress shall have power to enforce this Article by appropriate legislation.”

This amendment proposes to accomplish but one object, to wit: to abolish slavery and involuntary servitude, except *677as a punishment for crime, throughout the United States. No ingenuity or sophistry can infuse into it any other purpose than this.

The second section confers upon Congress “power to enforce this Article by appropriate legislation.” The first question arising under this clause is, what was it which Congress was empowered to enforce ? The answer is too obvious to admit of discussion, to wit: to enforce the prohibition or rule of law announced in the first section, that “neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States.” Whatever legislation was necessary to render this prohibition effectual and to prevent the re-establishment of slavery or involuntary servitude, except as a punishment for crime, Congress was empowered to adopt. It might impose pains and penalties upon persons seeking to hold another in slavery, and provide appropriate remedies to enable persons held in servitude to assert and maintain their freedom. The complete abolishment of slavery or involuntary servitude, except for crime, being the sole purpose of that amendment, Congress was empowered to do whatsoever was necessary to render the emancipation effectual; but at this point its power in the premises ceased. Freedom from slavery or involuntary servitude being the ultimate fact and the only result proposed by the Thirteenth Amendment, Congress is authorized to do whatever is needful to secure that end; and if that were the only effect of the Civil Bights Bill, or if its provisions tended even remotely to promote that result, it would doubtless, to that extent, be a valid enactment. But the Act is not addressed to this purpose, and its provisions have a much broader scope than this. After declaring that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, shall he citizens of the United States, it provides that such citizens, of every race and color, without regard to any previous condition of slavery, shall have the same right in every State and Territory to make and *678enforce contracts, sue and be sued, give evidence, inherit, purchase, sell, lease, hold, and convey property, as is enjoyed by white citizens. Those who maintain the constitutionality of the Act insist that these rights and privileges are incident to and inseparable from citizenship and the state of freedom secured to all classes of native born citizens by the Thirteenth Amendment, and consequently, that legislation tending to secure these rights is “appropriate legislation” within the true sense of that amendment. In the opinion of a majority of the Court the proposition is thus stated:

“Undoubtedly, to secure personal freedom to°all within the purview of its provisions, was the first great and leading object of the Thirteenth Amendment. Personal security and the right to acquire and enjoy private property—and these cover the remaining elements of one’s civil rights— would certainly seem to be powerful auxiliaries to the maintenance of personal liberty. The continued enjoyment of personal liberty cannot well be assured without the enjoyment of personal security. And the right to acquire private property would seem to be necessary to give that independence and freedom from want essential to the full enjoyment of personal liberty. Whatever, therefore, tends to maintain and assure to a person personal security, and to protect him in the acquisition and enjoyment of private property, would seem to aid in the maintenance of his personal liberty. Congress doubtless took this view in passing the Civil Eights Bill, and extended its provisions to these auxiliary and cognate rights.”

If I comprehend these propositions aright, they may be summed up as follows, to wit: First—That the object of the Thirteenth Amendment was to secure personal freedom to all native born citizens of the United States. Second—That the right to personal freedom and personal security, together with the right to acquire and enjoy private property, constitute the elements of one’s civil rights. Third—That the right of *679personal security, and the right to acquire and enjoy private property, are powerful- auxiliaries to the maintenance of personal freedom. Fourth—That being such auxiliaries, whatever legislation-tended to secure them was “appropriate legislation” within the true intent of the second section of the Thirteenth Amendment.

If this be the correct theory, and if the Thirteenth Amendment embraces so wide a scope as this, it results of necessity that Congress has supreme authority over ail our civil rights, and may at its discretion change, modify, or abolish all State laws relating to personal security or the acquisition and enjoyment of private property, and substitute others in their stead, on the pretext that it is necessary to do so in order to secure personal freedom to all. On the plea that it is necessary to provide safeguards for personal security, as an auxiliary to personal freedom, it may regulate in detail, in every State, the actions of assault and battery or false imprisonment, and particularly the writ of habeas corpus, prescribing when and how it shall issue, and what shall or shall not be competent evidence in these and similar actions. On the pretext of securing to all the right to acquire and enjoy private property, as an auxiliary to the right of personal freedom, it may define the tenures of property, regulate the law of descents, provide appropriate remedies for violations of every right of property, and practically supersede all State laws on these important subjects. If Congress possesses these enormous powers, it only remains for it to put them into execution; after which the State Governments had as well be abolished, as a useless, expensive, and cumbersome machinery, no longer of any practical value.

Proceeding on the assumption that under the second section of the Thirteenth Amendment Congress has the authority to pass any law for the protection of personal security, as an auxiliary to the right of personal freedom, the majority of the Court maintains that Congress has the power to declare, and by the Civil Eights Bill has declared, that, in the matter of evidence in the Courts there shall be *680no discrimination between native bom citizens of any race or color. The argument is, that if a certain character of evidence be admissible for or against a certain class of citizens, and not admissible for or against a certain other class, the excepted class may thereby be endangered in the enjoyment of their personal freedom, and that, to avoid this peril, it was “appropriate legislation” for Congress to abolish the discrimination, and place both classes on the same footing.

There would be some force in the argument if the principle was confined only to cases wherein an attempt was made to reduce a citizen or class of citizens to slavery or involuntary servitude. If Congress had declared that in such cases (which is clearly the only class of cases contemplated by the first section of the amendment) there should be no discrimination between one citizen or class of citizens and any other citizen or class of citizens in the rules of evidence, such legislation might have been “appropriate,” as having a tendency to maintain the provisions of the first section of the amendment. But the Civil Bights Bill goes far beyond this. It undertakes to abolish all distinctions between citizens of the United States, not only in the matter of making and enforcing contracts, inheriting, purchasing, or selling property, and in giving evidence in every class of cases, hut also provides that they shall be entitled “to full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white persons.” Whilst I can comprehend how it might be important to a person threatened with bondage to be entitled, in the vindication of his rights in that regard, to the benefit of the most liberal rules of evidence, I do not perceive on what reasonable ground it can be claimed that bis freedom may be endangered if he is denied the same latitude in the rules of evidence in respect to matters which in no degree touch the question of his freedom. The case we arc considering affords a striking illustration of this distinction. If the defendant was in danger of being reduced to bondage, he might justly claim that he was entitled to the benefit of the most liberal *681rules of evidence, in order to secure the freedom which is guaranteed to him by the Thirteenth Amendment. But inasmuch as he is accused of a crime against the law, and the question of his freedom, in the sense contemplated by the Thirteenth Amendment, is in no manner involved, what authority has Congress to prescribe the rule of evidence which shall govern his trial? Or if it were an action of debt or assumpsit on a promissory note, how would the question of his freedom be affected, one way or the other, by the rule of evidence at-the trial? To my mind nothing could be plainer than that Congress, under the second section of the amendment, has no power whatever to interfere in such a case.

The Thirteenth Amendment is entirely silent as to the civil rights of any class of persons, and does not assume to define how the civil rights of any one are to be affected, leaving such rights to be dealt with, as they had theretofore been, by the local laws of the States.

If this bill be a valid enactment, no State has the power to prohibit marriages between native born negro men and white women; because marriage is, in law, only a civil contract, and the bill provides that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are citizens, and that such citizens, of every race and color, shall have the same right to make and enforce contracts as is enjoyed by white persons. Marriage being in law only a civil contract, and every unmarried white man of lawful age having the right to marry a white woman, it follows as a logical sequence that every native born black man is entitled to the same right, if the Civil Rights Bill be a valid law; and that, too, in defiance of any State law to the contrary. It may also happen that a State may be influenced by considerations of public policy to deny to certain races or classes the right to inherit, purchase, or hold real estate. The State of California, for example, with a view to discourage emigration from China or Japan, might *682see fit to deny to the descendants of those races born in this State the right to inherit, hold, or transmit real estate; but though the strongest considerations of State policy might dictate this course, all State laws enacted for that purpose would be void if the Civil Eights Bill he valid. So, too, there may be in a State a degraded, brutal, and vicious race, peculiarly addicted to crime and vice, and demanding more stringent regulations for their government than are required for the general mass of citizens; but the Civil Eights Bill forbids any discrimination, and the State would be powerless to protect itself against a great and perhaps growing evil. So, too, in perhaps every State of the Union, minors and married women, on grounds of public policy, are disabled by law from making valid contracts; but if Congress should decide that these restrictions are restraints on the state of freedom established by the Thirteenth Amendment, they might supersede all State laws on the subject, and this would be deemed to be appropriate legislation ” under the second section. Illustrations might be multiplied almost indefinitely to show that the Civil Eights Bill withdraws from the States a mass of powers essential to the maintenance of order and the administration of local government, and which the, wise men who framed the Constitution jealously withheld from the Federal Government, conceding to it only such powers as were deemed essential to the proper conduct of national affairs, but reserving to the States the mass of powers pertaining to the administration of local government. Amongst these none were of so great importance as the right to regulate contracts, the administration of justice, the tenures of property, and the punishment of crime. The Civil Eights Bill infringes upon the power of the States over these subjects in many important particulars, and the theory on whicljt it is founded is so repugnant to that on which the Constitution was originally based, that it should not be upheld on a doubtful construction merely. FTothing short of the most explicit language in an amendment to the Constitution would *683justify legislation so entirely subversive of the theory on which the Government was originally founded.

But if it be true that the second section of the Thirteenth Amendment was adopted only to enable Congress to secure to those whose condition was changed from that of slavery to freedom, the full benefit and protection of the laws enjoyed by white persons, then it evidently can have no application to this case, inasmuch as it does not appear from the record that the defendant ever was a slave; but if the purpose of the amendment was to make all men born within the United States equal before the law in respect to their civil rights, it has utterly failed to indicate that purpose. The last proposition is not a correlative of the first. To secure to those whose condition was changed from that of slavery to freedom the full benefit and protection of the laws enjoyed by white persons, would apply only to the class of emancipated slaves; but to make all men born within the United States equal before the law, in respect to their civil rights, is a wholly different proposition, and of much wider scope. If the latter be the true purpose of the Civil B-iglits Bill, as it undoubtedly is, it follows of necessity that it was not designed simply to’ secure to slaves who were emancipated by the Thirteenth Amendment the full benefit and protection of the laws enjoyed by white persons, but also to operate upon those who never were slaves; as, for example, upon the descendants of Chinese, Malays or Japanese, born within the United States. If this be the purpose and scope of the Act, it is an attempt on the part of Congress, under the plea of legislation, designed to enforce the prohibition of slavery or involuntary servitude, contained in the Thirteenth Amendment, to supersede all State legislation on an important class of subjects, which do not, in any sense, fall within the purview of the Thirteenth Amendment. I do not perceive what necessary or even remote relation there is between the prohibition of slavery and the proposition that a son of Chinese parents, born within the United States, shall have the same right to inherit, purchase, sell, lease, hold and eon*684vey property as is enjoyed by white persons; or the proposition involved in this case, to wit: that because a Chinaman is prohibited by law from testifying against a white person, therefore he shall not testify against a colored person who never was a slave ; or the proposition that because a white man has the lawful right to make a contract of marriage with a white woman, every colored man born within the United States shall have the right to contract marriage with a white woman, in defiance of any State law to the contrary. If all these propositions, and numerous others of a similar character, come within the purview of the Thirteenth Amendment, it is not difficult to demonstrate that, under the pretext of enforcing the prohibition of slavery by “ appropriate legislation,” Congress might practically absorb all the powers of the State Governments, in matters pertaining purely to the administration of local affairs. It might decide that discriminating taxes imposed by a State on its own citizens, though warranted by its Constitution, or the establishment of separate schools for white and colored children, or the enforcement of laws for the observance of the Sabbath by Chinese or Japanese residents, or police regulations intended to preserve order amongst a certain vicious class of the community, such as Chinese prostitutes or gamblers, or health regulations, applicable alone to a degraded class of colored population, all tended to infringe upon the prohibition of slavery contained in the Thirteenth Amendment, and were therefore void. Congress, it is claimed, is the sole judge of what is “appropriate legislation” to accomplish the end contemplated in the Thirteenth Amendment; and if the Civil Rights Bill be maintained by the Courts as a valid exercise of the constitutional powers of Congress, it is quite evident that the division of power between the State and Federal Governments, as originally established by the Constitution, has been abrogated by the Thirteenth Amendment; and instead of a Rational Government to administer purely national affairs, and State Governments to administer the local affairs of the several States, the power of local admin*685istration has been practically transferred to the Federal Government, and the State Governments have been emasculated of the chief portion of the mass of powers reserved to them originally.

All that Congress was authorized to do was to see that the prohibition of slavery was not infringed. But, instead of this, it has undertaken to define, not only the civil rights of emancipated slaves, but of all other persons born within the United States not subject to any foreign power, except Indians not taxed. This is done on the plea that, inasmuch as the Thirteenth Amendment establishes a condition of universal freedom in the United States, all legislation is appropriate to enforce that result, which secures to all persons the rights of freemen. If by the term “ the rights of freemen ” is to be understood the right not to be held in slavery or involuntary servitude, the proposition is sound; but if the term “rights of freemen” is intended to include all the social and civil rights which men enjoy under a free form of government, then it follows from this interpretation that Congress, by virtue of the second section of the amendment, may supersede all State laws on all subjects affecting the social or civil status of every individual citizen of the United States; and this would practically withdraw from the State Governments all that mass of powers by which they have hitherto defined the rights, duties and obligations of their citizens toward each other and to the State. It would practically annihilate the power of the State over its own citizens and within its own territory, and transfer to the Federal Government the authority to exercise the most important functions pertaining to a local government. In my opinion the Thirteenth Amendment contemplated nothing of the kind.

Uor can it escape observation that the same argument which attempts to uphold the Civil Eights Bill, if carried to its legitimate conclusion, would concede to Congress the right to regulate the ballot in the several States. If Congress has the power to enact this bill on the plea that in order to *686enable a freeman to maintain his freedom, it is necessary to secure to him the right to make and enforce contracts, sue and be sued, testify in Courts, inherit, purchase, lease, sell, hold, and convey real and personal property, it would seem to follow as a logical result that it also has the power to confer upon him the ballot, as one of the most potent methods of maintaining his freedom. If it be “ appropriate legislation” under the Thirteenth Amendment to confer upon all native born persons in the United States the civil rights which are enumerated as a legitimate method of maintaining their freedom, why withhold from them the ballot, the. most potent of all methods ? It cannot be denied that it is competent for Congress to regulate the ballot in every State, provided it has the constitutional power to pass the Civil Bights Bill. If it can confer civil rights as a means of securing freedom, why not political rights for the same purpose ?

We should thus see concentrated in the Federal Government the power not only to regulate the local affairs of every State, but also to define who should be entitled to the ballot. The Federal Government would no longer be a Government of limited and enumerated powers; and the State Governments would scarcely retain a remnant of the mass of powers so jealously withheld by them when the Constitution was adopted.

I am aware that Mr. Justice Swayne, of the Supreme Court of the United States, in the case of The United States v. Rhodes, decided in the Circuit Court for the District of Kentucky, has maintained the constitutionality of the Civil Bights Bill, upon a process of reasoning similar to that employed in this case. But with all my respect for so learned a jurist, his reasoning appears to me to be not only unsupported by authority, but wholly opposed to the fundamental principles on which the Constitution rests.

In the case of Smith v. Moody, 26 Ind. 299, the constitutionality of this bill was also affirmed. But the opinion on this point was only dictum, inasmuch as the point was not *687involved in the case, and it is supported by no process of reasoning.

On the other hand, the Supreme Court of Kentucky, in the case of Brown v. The Commonwealth, held the Act to be unconstitutional for reasons which appear to me to be conclusive. It will he observed that the Fourteenth Amendment to the Federal Constitution had not been proclaimed as adopted at the date of the judgment in this case, and its provisions can therefore have no application to the questions under discussion. It will be time enough to discuss that amendment when it shall come judicially before us.

In my opinion the j udgment ought to be reversed.