This is Matthew Deady – child of the state of Maryland by way of Irish parents, founding father of the state of Oregon by way of the Oregon Trail. Farmer, trained blacksmith, teacher, lawyer, legislator, President of the Oregon Constitutional Convention, patron of the Multnomah County Library, former U.S. Territorial Judge and the first U.S. District Court Judge for the state of Oregon.
In his final role with that pioneer District Court, Deady is generally noteworthy in that he served as the trial judge in the case Pennoyer v. Neff – a nightmarish 1L civil procedure pillar that has undoubtedly converted several “law school students” into “law school dropouts.”
For the purposes of Mexican Opium, though, Deady’s role with the Oregon District Court is notable because of two decisions he delivered in 1886 on habeas corpus writs for Chinese Americans charged with opium offenses – two of the earliest drug law rulings in America. Early habeas decisions for drug offenses are particularly interesting because of the amount of jurisprudential reasoning they contain, as the court is often charged with justifying or invalidating the laws that created the offenses. Deady’s opinions are no exceptions.
(Quick note of explanation: If you’re a non legal-type reading this blog, a habeas corpus writ basically involves exercising the right retained by every person held by the government to appear in front of the government and ask “Are we for real here? This thing you say you’re holding me for, you want to say that to my face and see what happens?” prompting the government to determine either “Yes, we are indeed for real here,” and send the person back to their holding, or proclaim “Whoops, our bad, sorry,” and release the detainee.)
The first of Deady’s two opium/habeas rulings was on February 4th of 1886, in the case Ex Parte Ah Lit. (26 F. 512.) Ah Lit deals with an 1883 ordinance in the city of Portland classifying certain types of opium smoking as disorderly conduct, and whether such an ordinance could be extended to impliedly forbid Ah Lit from smoking opium in the privacy of his own home. Deady decides to release Ah Lit, holding that his detention reaches beyond the statute, and gives a quotable opinion in the process. Here’s some of it:
Subdivision 6 of section 37 does not authorize the counsel to punish any one for smoking opium in his own house, or elsewhere than in a house or place kept for that purpose – what is known, I suppose, in police jargon, as an ‘opium joint.‘ The power to punish persons, as a means of preventing and suppressing opium smoking, is limited to the punishment of those who keep houses or places for that purpose, and those who smoke therein, or frequent the same. This act, though intended in the main to control and restrain the conduct of the Chinese in this particular, must be construed in the same way as if its purpose was to prevent and suppress some practice or habit more generally prevalent; as tobacco smoking and whisky drinking, or the keeping of ‘joints‘ or places for such purpose. No one will deny that the abuse, if not the common use, of these two articles in this community is of much greater injury to the health, peace, and morals of society than the present use of opium. But smoking opium is not our vice, and therefore we are more likely to go to extremes in our desire to suppress it, or to vex those who practice it. Indeed, it is well understood that this legislation, however right in the abstract, is not so much the result of a desire on our part to reform the ‘Heathen Chinee‘ as to annoy him. In short, it is the old story of the Puritan and the bear. His opposition to the practice of ‘baiting‘ the beast was not because of the pain it gave Bruin, but the pleasure it gave the parties engaged in it. If the language used in subdivision 6, concerning opium smoking, was used in regard to whisky drinking or tobacco smoking, no one would pretend that it authorized the punishment of a person who drank or smoked occasionally or habitually in the privacy of his own or even in his friend’s house, and not in a place or ‘joint‘ kept for that purpose; and there is no good reason in law or morals why the act should receive any looser or different construction because it applies only to the Chinese dissipation of opium smoking.
26 F. 512, 513-514
He limits his decision to the language of the statute to make it objective and compares it to other regulations to ground it, but then barely cloaks his disappointment in his fellow Oregonians for trying to make laws work like this, essentially chuckling and saying, “Sorry fellas, but ‘Extend racistly, if the majority so wills it’ is not one of the canons of statutory interpretation.”
Six months later, however, Deady would use similar language and come to the opposite result, upholding the detention of another Chinese resident of Oregon. This time it was for the sale of opium, an act distinguishable from private smoking. Smirking as Deady may have been in Ah Lit, the language in this opinion is not soft. I’ve quoted the case in the blog before – It’s Ex Parte Yung Jon, 28 F. 308, and here it is again:
True, we permit the indiscriminate use of alcohol and tobacco, both of which are classed by science as poisons, and doubtless destroy many lives annually. But the people of this country have been accustomed to the manufacture and use of these for many generations, and they are produced and possessed under the common and long-standing impression that they are legitimate articles of property, which the owner is entitled to dispose of without any unusual restraint; and even now it is pretty well settled that the legislature may absolutely prohibit the future manufacture and use of these articles, and may also prohibit the sale and use of the stock in hand, on making compensation to the owners for the loss occasioned thereby. On the other hand, the use of opium, otherwise than as this act allows, as a medicine, has but little, if any, place in the experience or habits of the people of this country, save among a few aliens. Smoking opium is not our vice, and therefore it may be that this legislation proceeds more from a desire to vex and annoy the ‘Heathen Chinee‘ in this respect, than to protect the people from the evil habit. But the motives of legislators cannot be the subject of judicial investigation for the purpose of affecting the validity of their acts. It is the duty of the law-maker, as far as his power extends, to enact laws for the conservation of the morals of society, and to promote the growth of right thinking and acting in all matters affecting the physical or mental well-being of its members. In the exercise of this power, and the discharge of this duty, this act to regulate the disposition and use of opium, considered as a dangerous drug, which the weak and unwary, unless prevented, may use to their physical and mental ruin, appears to have been passed. The subject of the act is sufficiently expressed in the title, and the use of the article is not thereby restrained, so as to destroy its value as a medicine or remedial agent, the only use of which is generally considered and accepted as a proper one in this country.
28 F. 308, 311-312.
Based on this reasoning, Deady did not release Yung Jon.
It would be foolish to understate the difference between regulating the sale of something and regulating the private enjoyment of that same thing, but the dramatic difference in tone between these two opinions strikes me. In Ah Lit, Justice Deady is saying “Can you imagine what it would be like if we treated alcohol or tobacco like this? You guys know this is racist. Roll it back a little.” while on the other hand, in Yung Jon, Justice Deady is saying “We don’t treat alcohol or tobacco like this, even though we can, so even though this seems like it’s racist, well, you guys got me. Go right on ahead.”
Justice Deady was clearly committed to strict interpretation of the law, but was not an unconflicted person. As I mentioned before, he served as President of the Oregon Constitutional Convention, which took place in 1857. In that role, he advocated for restricting the voting franchise to “pure” white men, and for Oregon to enter as a slave state and used some rather – how do you say this – “dated” language to justify his positions. At the time these opium cases were decided, though, Deady had rightfully earned a reputation as a advocate for fair treatment of the Chinese, against racial politics of the time. He campaigned against the hateful and violent treatment Chinese were receiving in Oregon (even charging a federal grand jury with the indictment of an anti-Chinese mob), and was famous (or infamous) for giving the Chinese a fair shake in his courtroom. Ah Lit is only one of many decisions Deady handed down favoring Chinese rights. In fact, a whole law review article has been written celebrating Deady’s treatment of the Chinese in this era. See “Matthew Deady and the Federal Judicial Response to Racism in the Early West,” Ralph James Moody, 63 Or. L. Rev. 561. (It’s noteworthy that this article omits the Yung Jon opinion).
While Deady had his racist history, he was past that phase, or, at the very least, above those sentiments when he sat on the bench for Yung Jon. He was almost undoubtedly looking for the counter-majoritarian line of reasoning to stop a law that targeted a minority. Reading these two opinions, and knowing that a highly capable Justice motivated to treat the Chinese fairly couldn’t rise above the confines of American legal framework to restrict what he saw as a racially motivated law serves as a rather stark reminder of the power of a winking majority in a constitutional republic .