The Opinion That Silenced Non-White People

In 1854, the California Supreme Court prohibited all non-white people from testifying against white people, freeing a white man who had been convicted for killing a Chinese man in front of multiple witnesses.

I learned about this case many years ago in law school, and my classmates were understandably shocked and horrified at the opinion and the racial views embedded there. But I thought that there was something more to the case. A judge cannot overturn a conviction with a terrible opinion unless other people had done the right thing in the first place.

I ended up researching the case in libraries and archives to find out more about those other people, and I wanted to share with you what I found, especially in light of Asian Pacific American Heritage Month.

Let’s begin with the murder, which took place in 1853 in the Sierra Nevada mountains.

The first mention that I could find in a newspaper was in August 1853 in the Nevada Journal: “We learn that three men were arrested at Little York yesterday and would be brought to Nevada [City, California] for trial, for shooting and dangerously wounding a Chinaman while he and others were endeavoring to prevent the robbery of their sluice boxes.”

According to a later summary, George Hall, his younger brother and a third man came upon a Chinese camp and beat one Chinese miner, searching for gold. The miner tried to run away, and the three men chased after the miner. Another Chinese miner whose name had been reported as Ling Sing or Lyn Chain, came out to help the initial victim, and he “was immediately shot down by the elder Hall.”

The prosecution was led by William Stewart, who later became a U.S. senator from the state of Nevada, helped draft the 15th Amendment, and briefly employed Mark Twain as a secretary. Stewart himself found the witnesses to be credible, writing later in his reminiscences that “they all told the same story” and that he had “not the slightest doubt” that George Hall had committed the murder.

Acknowledging the “great prejudice against Chinese testimony,” Stewart took steps to build a successful prosecution.

First, Stewart got extra funds from the county government to do the trial, an allowance of $5,000, or about $150,000 in current dollars.

Second, he separated the witnesses so that they were “unable to communicate with each other until after the trial.”

Third, he went to San Francisco and recruited a Presbyterian missionary, Rev. William Speer, to serve as an interpreter. Rev. Speer had served in China as a missionary and had become fluent in Cantonese, and he became an advocate for Chinese immigrants in California.

Fourth, Stewart asked Rev. Speer for an oath that would be binding upon the Chinese witnesses as an oath on the Bible might be for a Christian. “I told him that I had heard it stated that cutting off a chicken’s head or burning paper, or something of that kind, would ‘swear’ a Chinaman.” Rev. Speer replied: “Burning paper is just as good as anything.”

The trial was held in October 1853 and ended with the jury convicting George Hall and acquitting Hall’s younger brother and the third man.

Hall asked for a new trial, but the presiding judge, Judge William Barbour, rejected the request before a “densely crowded” courtroom:

“There is but little doubt from the character of the testimony, that the verdict of the jury was just, and in strict conformity to the evidence. The firm belief of your guilt was impressed on the minds of the jury, and the Court. Indeed, the clear and positive proof the Chinese witnesses, corroborated by American testimony, together with the strong circumstantial evidence attending the whole affair, would not have permitted the most incredulous to form any other conclusion.”

Judge Barbour then pronounced a death sentence on Hall:

“You most unfortunately have participated in a delusion which has prevailed to an alarming extent in California. Many persons here have supposed that it is less heinous to kill a Negro, an Indian, or a Chinaman than a white person. This is a gross error. The law of our country throws the aegis of its protection upon all within its jurisdiction; it knows nor ace, color or distinction.”

These stirring words were said before the Civil War, before the 14th Amendment, and before the civil-rights movement. And had these words been the end of the story, this would have been a story of justice prevailing over what Judge Barbour called the “delusion” of racial superiority under the law.

But that, unfortunately, was not the end of the story.

George Hall was scheduled to be hung on December 30, 1853, but he appealed his conviction to the California Supreme Court.

The prosecutor, William Stewart, did not think much of the appeal at first. As he later wrote, “No exceptions had been taken during the trial, and by the statute nothing could be considered by the Supreme Court unless exceptions had been taken in the court below.” Stewart was surprised that the appeal was being heard and then he was surprised by the argument on appeal.

George Hall’s lawyer argued that Chinese testimony was inadmissible because of an 1850 California law that prohibited Indians, black people, or mixed-race people from testifying for or against a white man in a criminal case. Stewart argued that the statute simply did not apply because the witnesses were not Indians, but Chinese.

But the California Supreme Court, led by Chief Justice Hugh Murray, agreed with George Hall’s lawyer for two reasons.

First, Chief Justice Murray wrote that the “general, or perhaps universal” opinion as of 1850 was that “there were but three distinct types of human beings”: Caucasian, Ethiopian, and Mongolian. This was overstating the consensus about racial classifications at the time. One scientist Georges Cuvier did argue for three races, but others such as Carolus Linnaeus and J.F. Blumenbach had more classifications and distinguished Asian people from Native Americans. Glossing over those other views, Chief Justice Murray argued that the California legislature must have meant “Indian” as a generic term that would encompass all people who were not “white” or “Negro,” and thus would encompass Chinese people.

Second, Chief Justice Murray wrote that it would be “most anomalous” and absurd to think that California law would not protect white people from the “degraded and demoralized” castes of all non-white people, including Chinese people.

“[T]he apparent design was to protect the White person from the influence of all testimony other than that of persons of the same caste … We have carefully considered all the consequences resulting from a different rule of construction, and are satisfied that even in a doubtful case we would be impelled to this decision on grounds of public policy.”

Allowing non-white people to testify against a white man would be dangerous, Chief Justice Murray wrote. If they were allowed to testify, they might then be allowed to become citizens and jurors and legislators. That was not mere speculation, he wrote, but “an actual and present danger.”

The California Supreme Court’s decision set George Hall free. Without the testimony of the Chinese witnesses, there was not enough evidence to sustain the conviction or re-try the case.

The decision also had massive consequences for non-white people in the 1850s and 1860s, who could not testify against white men who victimized them.

Thanks to the 14th Amendment, subsequent opinions by the United States Supreme Court and other changes in the law, a law that prohibited a person from testifying based on that person’s race, national origin, or religion would not be permitted today. The justice system today is far from perfect, but it is worth remembering how far we have come and how people at least tried to do the right thing, even more than 150 years ago in the Sierra Nevada mountains.

Stephen Lee was a federal prosecutor in Chicago from 2008 through 2019 and is now in private practice. He was a reporter for the Chicago Tribune in the mid-1990s and also created the now-defunct website FootnoteTV in the 2000s.

Lawyer, former federal prosecutor in Chicago (2008–January 2019), former newspaper reporter, creator of the defunct website FootnoteTV