People v. Washington

By the Court, Rhodes, J.:

The defendant was indicted for the crime of robbery. The person alleged- to have been robbed was a Chinaman named Ah Wang. The indictment was found exclusively upon the testimony of Chinese witnesses, and for that reason counsel for the defendant moved to set it aside. Thereupon, for the purpose of disposing of the whole case, as well as the motion, it was stipulated between the District Attorney and counsel for the defendant, that the defendant was a mulatto, born within the United States, and not subject to any foreign power; that all the evidence in the case known to the District Attorney was the testimony of Chinese witnesses, who were born without the United States and within the Chinese Empire. In view of these facts the indictment was set aside, and the defendant discharged.

The case presents for our consideration the fourteenth section of the statute of this State in relation to crimes and *660 punishments, which 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,” as affected by the adoption of the Thirteenth Amendment to the Federal Constitution, which provides 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, or any place subject to their jurisdiction,” and that “ Congress shall have power to enforce this Article by appropriate legislation;” and the first section of the Act of Congress passed in pursuance thereof, entitled “An Act to protect all nersons in the United States in their civil rights, and furnish the means of their vindication,” which 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 or Territory of 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 person" 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.” (13 U. S. Stats, at Large, pp. 774, 775; 14 U. S. Stats, at Large, p. 27.)

In view of the foregoing constitutional and statutory provisions, we are asked to determine whether the Act of Congress of the 9th of April, 1866, commonly called the “ Civil Rights Bill,” so far as it bears upon the question before us, was repugnant to the Constitution of the United States as it read prior to the adoption of the Fourteenth Amendment; *661 and if not, what has been its effect upon the fourteenth section of the statute of this State in relation to crimes and punishments ?

We regret that we are called upon to decide so important a question without any argument on the part of the defendant.

The nature and objects of the Act first claim our attention. The Attorney General claims “ that it at least only extended and only could extend to the political rights of white persons and negroes, and no further.” A slight examination of the Act would readily show this position to bo untenable. The title of the Act is, “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication.” The first clause of the first section declares “ 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.” It is the general, and we think the better, opinion that this provision, in view of the abolition of slavery, is only declaratory. One of the most distinguished, and perhaps the leading opponent of the passage of the bill, entertained that view, but differed with the majority in respect to the extent of the operation of the rule; he holding that while it was true that by virtue of their birth the persons named became citizens of the United States, it did not follow that they became citizens of the State of their birth. If the latter position is tenable—if a person residing in one of the States can be a citizen of the United States and not, at the same time, a citizen of any particular State, it will make no difference in the result of the present inquiry.

Whether the clause of the section under consideration is merely declaratory, or whether it, in effect, makes citizens of those who before were not entitled to that appellation, it only declares or establishes the status of such persons. This does not directly confer political rights, or more accurately speaking, powers or privileges, nor do they necessarily result from such status. Native born infants and females are citizens of the State of their birth or residence, but possess no *662 political rights. Persons becoming citizens by naturalization do not, thereby, acquire political rights, but such-rights are derived from the Constitution and laws of the State of their residence. “ Civil rights,” as defined by JBouvier, “ are those which have no relation to the establishment, support or management of Government. These consist in the power of acquiring and enjoying property, of exercising the parental and marital power, and the like.” They are the absolute rights of persons, the right of personal security, the right of personal liberty, and the right to acquire and enjoy property, as regulated and protected by law. They are the rights which, according to the fundamental principles of American Government, are inalienable.

“ Political rights,” says the same author, “ consist in the power to participate directly or indirectly in the establishment or management of Government.” The elective franchise- and the right to hold public offices constitute the principal political rights of citizens of the several States.

The absolute rights of persons have no necessary connection with the establishment or management of Government. Pernales, infants, the Chinese and Indians are entitled to the benefit of the writ of habeas corpus, may sue, contract, hold properly, etc., but it is preposterous to assert that the possession of those rights implies the possession of the elective franchise, or the right to discharge the duties of a public office. Did the Act in fact confer political rights, all the other provisions of the Act were unnecessary and useless, for the ballot is the safeguard of civil as well as political rights.

In the same section certain rights are secured to those who are declared to be citizens of the United States. It is provided that they shall have “the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, to 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 person and property as is enjoyed by white citizens, *663 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.” Most of the rights here enumerated are such as are enjoyed by aliens as well as citizens, and, indeed, all the residents of the United States, except those laboring under the disabilities growing out of the condition of slavery. But some of the rights mentioned go beyond that line, as the right to inherit property, to give evidence, the right to the full and equal benefit of all laws for the security of person and property as is enjoyed by white citizens; and it is claimed that the regulation of these and the like matters belongs to the several States. If it be admitted that this was true before the adoption of the Thirteenth Amendment to the Constitution of the United States, yet upon the adoption of that amendment legislation of the character of the Civil Bights Bill became appropriate; and in order to confer full authority therefor, the second section of the amendment was adopted, which provides that “ Congress shall have power to enforce this Article by appropriate legislation.” At common law one of the usual divisions of persons was into the comprehensive titles of aliens and native born subjects. The term citizen is now nearly synonymous with that of subject at common law. But under our system of government there was a third class, the persons of which it was composed being neither aliens nor citizens. “ Indians not taxed,” and slaves, composed the main portion of this class. As most of the persons of African descent within the United States were introduced as slaves, or were the descendants of slaves, they were not regarded in some of the States as citizens, and in the midst of the great political conflicts which preceded the civil war, the Supreme Court of the United States (some of the Justices dissenting) held that a negro was not a citizen of the United States, and consequently could not sue in their Courts. (Dred Scott v. Sandford, 19 How. 393.) Persons of that race were, in several of the States, subject to disabilities, restrictions, and penalties *664 to which white persons were not liable, and others were being added by laws enacted for that purpose.

The object of the adoption of the first section of the Thirteenth Amendment to the Constitution was not only to effect the emancipation of all persons then held in slavery, but also to forever thereafter deprive both Congress and the respective States of any and all power to reduce either the persons so emancipated or any others within the jurisdiction of the United States to the condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted. And the object of the second section was to enable Congress, by appropriate legislation, to secure the persons so emancipated, as well as all others, while within the jurisdiction of the United States, in the full enjoyment of that personal liberty contemplated in the first section; or, in other words, the Thirteenth Amendment was at least intended to make all men born in the United States, without reference to color, equal before the law with respect to personal liberty, one of the absolute rights of man, and to give Congress power to pass any and all laws necessary and proper to accomplish that end. 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 and enjoy 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 *665 its provisions to these auxiliary and cognate rights. But it is still apparent that the great and leading object was the maintenance of the persons provided for in their personal liberty, and it is in this aspect only that wc are now called upon to consider it. If other and cognate or collateral objects, not strictly within the scope of its constitutional powers, were introduced, going beyond this, (in regard to which, however, wo now express no opinion,) this will not affect the validity of the Act as to those provisions which bear directly upon the main object, the protection of personal liberty and enforcement of the amendment designed to secure it.

That the Civil Bights Bill, so far, at least, as it bears upon the question now under consideration, (and we have at present no concern with other provisions contained in it,) is appropriate legislation for the enforcement of the rights provided for in the first section of the Thirteenth Amendment, it seems to us there can be no serious question. The first section, being self-executing in the emancipation of the persons then held in slavery, and in providing for the inviolability of the personal liberty of all for the future, we can conceive of no legislation appropriate to enforce the rights thus conferred and guaranteed, except such as practically tend to facilitate the securing to all, through the aid of the judicial and executive departments of the Government, the full enjoyment of personal freedom.

In the administration of justice the subject of evidence occupies a large space. It is the means by which the judicial branch of the Government is informed of the violation of that personal liberty which this amendment of the Constitution guarantees to all persons within the jurisdiction of the Federal Government, and whereby it is enabled to perceive the wrong and apply the proper remedy for enforcing the right. It is ordinarily the proper function of the legislative department of Governments to prescribe rules as to the production and competency of evidence. It would seem, *666 as a general proposition, that a rule of evidence which is best adapted to elicit the truth, facilitate the administration of justice, and protect personal liberty as to one class of persons, ought to be the best adapted to accomplish the same end as to all living under the protection of the same Government. At all events, the establishment of different rules as to the competency of evidence applicable to different classes of persons may tend to the advantage of one class and to the oppression and encroachment upon the personal liberty of another. For example, it is not difficult to perceive, if the individuals of the entire class likely to be reduced to the condition of involuntary servitude are excluded from testifying against the class likely to attempt to deprive them of their liberty,. or in any matter arising between the two classes, while the other class is at full liberty to testify in such cases, that the strong tendency of such a rule of evidence would be to obstruct the operation of the amendment in question, and overthrow that personal liberty guaranteed by it; and it would seem to be self-evident that a law providing that the same rule of evidence should apply to both parties, placing the class likely to be reduced to servitude upon an equal footing with the other in respect to the right to testify as to the encroachment upon their personal liberty, would strongly conduce to the enforcement of this constitutional provision. So, a law which, while it would not permit a class of persons deemed unworthy to testify against a white person in.a matter where such white person’s personal liberty is concerned, would yet allow them to testify against a black person in a similar case, would discriminate against the personal liberty of the latter, and also tend to obstruct, as to him, an equal enforcement of the amendment in question. Such discriminations might well tend to affect the security of that personal liberty which the amendment to the Constitution guarantees to all. This being so, it seems clear to us that under the provision in question Congress is fully authorized to judge of the necessity of legislation upon the subject, and, if found necessary, to prescribe that all alike, *667 black and white, shall be entitled to “give evidence;” and further, that the rules of evidence shall apply equally to all alike, in order that all may, in the language of the Civil Eights Act, have the “full and equal benefit of all laws and proceedings for the security of person,” etc. This provision prescribing a uniform rule of evidence with reference to all classes embraced in the broad terms of the amendment, necessarily bears directly upon the great right of personal liberty which its adoption was expressly designed to secure. To secure the enforcement of this provision was the leading object of the Civil Eights Act, and this precise provision is the only one the constitutionality of which is involved in this case, or upon which we now express any opinion. If such legislation is not “appropriate” to enforce the provision for personal liberty in question, we-are at a loss to know what would be appropriate.

The constitutionality of the Act need not be further discussed at this time, as it was fully considered by Mr. Justice Swayne, in the Circuit Court of the United States for the District of Kentucky, in The United States v. John Rhodes et al, Am. Law Reg., February, 1868, and by the Supreme Court of Indiana in the case of Smith v. Moody, 26 Ind. 299. In both cases the constitutionality of the Act was fully sustained, and it may be safely rested upon the authority of those cases. We may add, however, that in view of the universal practice of the Federal Government, from the commencement to the present time, there would seem to be little doubt, if any, as to the power of Congress to admit by law to the rights of American citizenship entire classes or races, not under the disabilities of slavery, who were born and continue to reside within the United States, or upon soil acquired by the General Government. Eaces, tribes and communities, irrespective of color, have been admitted in mass and by a single act of national sovereignty in repeated instances. This was done by the treaty of April, 30th, 1800, by which the United States acquired the Territory of Louisiana; also, by the treaty of 1819, by which Florida was acquired; *668 also, by the treaty of 1848, by which California was added to the national domain; also, by the annexation of Texas and her admission into the Union; also, by the treaty of September 27th, 1830, by which certain heads of families of Choctaws were admitted to the rights of citizenship; also by the treaty of December 29th, 1855, by which the same thing was done in respect to the Cherokees; and also by the Act of March, 3d, 1843, by which the Stockbridge tribe of Indians was admitted to full citizenship. In view of this repeated and continuous practice of the National Government in respect to persons not born upon American soil, a much stronger argument than has yet been adduced, so far as we are advised, must be brought forward, before we can feel justified in denying to Congress the power, by statute, to confer the rights of citizenship upon all native born persons, now that the disability of slavery has been removed. It would be a remarkable anomaly, as remarked by Mr. Justice Swayne, in the case already cited, if the National Government, without the Thirteenth Amendment, could confer citizenship on aliens of every race and color, and citizenship with both civil and political rights on the “ inhabitants ” of Louisania, Florida, and California, irrespective of race or color, and cannot with the help of that amendment confer on those of the African race who have been born and always lived upon American soil all that the Civil Bights Act seeks to give them. It. is no answer to say that the acts referred to were done under the “treaty making power.” A treaty is but a part of the “law of the land,” and what is forbidden by the Constitution can no more be done by a treaty than by an Act of Congress.

The Attorney General further contends, however, that the Act cannot be construed so as to affect the internal police of a State or the conduct of its Courts, without the total abolition of State sovereignty; and he asks, “if a sovereign State cannot conduct its own internal police regulations independent of the Federal Government, what element of sovereignty has a State ? * * Can it be said she is sovereign for one purpose, but is not for another?” This position is answered *669 by the Thirteenth Article, which, as we have seen, confers upon Congress the requisite power to pass all laws appropriate to the end in view. In McCulloch v. Maryland, 4 Wheat. 421, it was considered that under the authority granted to Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” etc., Congress might pass such laws as were appropriate for the execution of the powers of Government; the phrase “appropriate” being used by the Court as equivalent to “ necessary and proper.” As to what would be appropriate legislation to enforce that Article, no suggestions are made by counsel, and it is difficult to conceive of any law more appropriate to that end than the portion in question of the first section of the Civil Bights Bill. The extreme State rights doctrine, shadowed forth hy the connsel’s proposition, may be dismissed with the remark that it is fully met by a further portion of his argument in which he says: “I acknowledge for the State her duty, her obligation to the sovereign power, and that whether the exercise of these sovereign powers which Congress possess, suit the State or not, she is bound to submit to them, as one sovereign submits to another in that in which it is his sovereign duty to submit. And in making this admission lies the strength of the position. While she, as sovereign, is bound to submit to the just exercise of power, and even to the unjust exercise of constitutional power, the Federal Government as sovereign cannot encroach upon reserved powers.”

We do not read the Act as counsel does. He seems to apprehend that, if the Act is upheld, it will break down all the statutes of this State in respect to witnesses and testimony, which differ from the statutes of any other State— that as our statutes, which permit parties to civil actions, defendants in criminal prosecutions, etc., to testify in their own behalf, differ from those of other States, ours must yield, “or you destroy the equality of rights enjoyed by citizens of the different States.” The Act does not purport to equalize the rights of all persons, or to declare that they are *670 of the same extent in all the States, nor is such its effect. It assures to all the citizens of any State the civil rights enjoyed by white citizens of the same State; or, in other words, it prohibits all discrimination between citizens in the State of their residence, on the score of race or color, in respect to their civil rights, but leaves their political rights, which are the rights to vote and hold public offices in the gift of the State, with the power to confer or withhold them at pleasure. If in a given State the title to real property of any character may be conveyed by writing not under seal, then all citizens, of every race and color, may convey property of that character in the same mode. A statute providing that in a certain contingency the estate of a deceased person shall descend to the wife and children in equal shares is, by the Act, made applicable to all the citizens of the State. And so of the statutes regulating the competency of witnesses. The operation of the Act is to make them applicable alike to all the citizens of the State, without regard’ to race or color, and without regard to the rules upon that subject prevailing in other States.

It is due to the Attorney General to say that, at the time of the preparation of his brief, he had not the benefit of the very able and exhaustive opinion of Mr. Justice Swayne, mentioned already.

Our conclusion is that the portion of the Civil Eights Act now in question—and we are not called upon to consider any other—was not repugnant to the Constitution of the United States as it read prior to the adoption of the Fourteenth Amendment, and that its effect was to put all persons, irrespective of race or color, born within the United States and not subject to any foreign power, excluding Indians not taxed, upon an equality before the laws of this State in respect to their personal liberty; and that the fourteenth section of the statute of this State in relation to crimes and punishments, so far as it discriminates against persons on the score of race or color, born within the United States and not subject to any foreign power, excluding Indians not *671 taxed, has, by the force and effect of the Civil Eights Act, become null and void.

We deem it not out of place to suggest, in conclusion, that there may be a. doubt as to the validity of the fourteenth section of the statute in relation to crimes and punishments when tested by the provisions of the Constitution of this State, irrespective of the Federal Constitution or the Civil Eights Act.

The provisions of the Constitution of this State to which we especially refer are sections eleven and seventeen of the First Article. The former provides that “All laws of a general nature shall have a uniform operationand the latter, that “ Foreigners who are or who may hereafter become bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property as native born citizens.” And perhaps an argument of much force might be drawn from the first section of the same Article, which affirms the right of enjoying and defending life and liberty, and of acquiring, possessing and protecting property. Doubtless much could be said to show that a statute which permits a person to become a witness in certain cases and not in certain other cases, does not operate uniformly, and that the right to testify in our Courts is indispensable to aliens to enable them “to possess, enjoy and inherit property upon the same terms as native born citizens.” Exit these points have not been made, and we do not feel that we are called upon, or that we would be justified in determining questions of so grave a character without arguxnent, and without being called upon to do so, especially since the adoption of the Foxirteenth Amendment to the Federal Constitxition, which has been recently pi’oclaimed, and which, as is claimed by some, may supersede all that our Constitxition contains upon that subject. The Fourteenth Amendment goes one step farther than the Civil Eights Act, and after declaring who are citizens of the United States, and securing them in the enjoyment of their privileges and immunities, contains a provision applicable to all persons, *672 whether citizens or .not, in these words: “ ifor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laxos.”

Judgment affirmed.