Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1865-09-26
6 oing Back to First PrinciplJs-A Curious
Case

OF u case recently decided IN ono oil Inc courts OF
lrgiaa, respecting the right Of free colored
persons, charged with crimes, to be tried by
jury, as follows:
In the county court, yesterday decision WAS
rendered upon subject of constitutional law in
yoyinQ an entire change in the judicial proceed
lngs Of the Commonwealth in the trial Of negroes
charged with ofsnses less than homicide or
other ohsnses punishable with death. The case
csn on in this wise. A negro known as "Son-
| ny Waters, was on Thursday convicted of
stealing S 100 from another negro man, Clay
borne Banks, and sentenced 10 two years imprs-
onment 10 the penilentary. The court tried &C
cordng to the provisions OF the code of Virginia
and OF course without jury--Wa Waters counsel
+ l.. Smith and 5, +. Beach, Esqs,, receiving
all pleas relative to the jurisdiction. The coun-
eel, immediately upon the announcement Of the
sentence, moved to arrest the Judgment Of the
court and the motion came up yesterday for ar
gument Messrs. Beach and Smith contended
that the accused being free man was not sub
ect to be deprived Of bis liberty, but after hay-
ing bad fair trial, being confronted by witness
es, defended by counsel, and tried by juIy.nsThis
under the Bill OF Rights OF Virginia. The coun-
sc asserted that free negroes had been tried by
| jury from the origin Of the Commonwealth, un-
al Ia 1892 the law was changed 30 as to place
free negroes and slaves upon the same footing in
this respect. W. Wilioughby Ed, Common
wealths attorney, opposed the motion, urging
that the question had been adjudicated and that
the same Law which made the five gentlemen on
the bench t. court at al" prescribed the
method by which that court should try free ne
groes The right Of the law Of Virginia thus to
create courts Of oyer and termlner had been ao-
knowledged by the Judicial tribunals Of the
whole country, and never been questioned until
now Mr. + l.. Smith urged, in reply that
whatever may have been the former practice or
former decisions, the case before the court was
this the law OF the legislature was in contrS.
yenton OF II higher law, the Bill OF Rights,
which had been made part Of the constitution.
he court (Jusices McKinzie, Daw, Harmon,
Carlton and Taylor decided that judgment
should be arrested, in accordance with the mo
ton Of Waters counsel Justice Cotton dis
sentng and declaring no was opposed to the de-
cisiOn. The Commonwealth attorney said the
desision had placed him in a singular position.
Under the doctrine oil tho court he was without
tho means Of bringing one class Of offenders 10
Justice. In response 10 questions OF the presid-
ing justice, many members of the bar expressed
the opinion, that under the ruling Of tho court
no law existed by which negroes could be tried,
at all, for offenses not homicide or punishable
with death. Others expressed adverse views.
The presiding justice thought that, at least, they
could keep the negroes IN jail until a law was
made to suit their case. The counsel for Wa
ters waived the right to demand his discharge,
at this time, with the understanding that il
there was no further action before the eour.
closed, he should then be discharged.
The section Of the BIZ OF Rights upon which
this decision is based il as follows
That all elections ought to DO free and that
all men, having sufficient evidence OF common
interest with aud attachment to the community,
hare the right Of suffrage and cannot be taxed
or deprived of their property Tor public uses
without their own consent or that Of their rep
resentatiyes 30 elected nor bound by any law
to which they have not in like manner assen;ed
for the public good.
This decision is not based upon any change
which emancipation has made in the laws Of
Virginia, but proceeds upon the principle that
since 1885 free colored persons in Virginia have
been deprived of their rights in violation of the
constitution Of that State. And the fact that
in 1885 the right Of trial by jury was taken
away from free persons of color, 10 only an evil
dcnce Of the proscriptve character of slavery,
and the advance it had made in Virginia in de-
stroying the munimens OF liberty which the Bill
of Rights Of the State az the first had provided
for the protection of free men irrespective of
color. The men who founded the government
and declared that all men were equal before the
law although they held men in bondage, were
rarely, il ever, gully Of refusing to free man,
Of whatever color, his rights. The doctrine that
there may be two classes Of ireemen in the State,
one superior in privileges to the other, was q
later growth of slavery, and will, we hope die
with the system for whose defense it was devised.