Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-07-11
PATRICK BYRON.


PATRICK BYRON, white man, is present
ed before this, an examining court, charged
with shooting and wounding, with intent to
kill, one WIN. MONTAGUE, a free negrs.
The Commonwealth, by attorney, moves the
court to permit the introduction, as witness
es for the Commonwealth, of two free ne
groes, WIN. MONTAGUE and SARAH MORTON,
upon the ground that, since the passage OF
the act of Congress known as the Civil
Rights Bill, negroes are made competent
witnesses against white persons in the Uni
ted States.
The question presented for decision is
whether Congress can annul the law of Ken
lucky which forbids the admission of negro
testimony as against white people.
There is no pretense that Congress pos
sessed any such power under the original
Constitution, but it is claimed to be derived
under the second clause of the late COnsti-
tutional Amendment, giving Congress power
by appropriate legislation, 10 enforce the
amendment. The main or first clause OF
that amendment, or its equivalent, has been
the fundamental law of every non-slavehold-
ing State and Territory of the United States
since the ordinance of 'S7, from which the
amendment was copied-at least in sub
stance. Yet in each and all of them free
negroes have been excluded from testifying
against white persons. Certainly, then, such
exclusion is not an eHsLaUemeHt of the negroes,
or SubjeciiRg them 10 an involuntary SerUi-
tude." If so, then, how could it have
prevailed for the past eighty years, il
the phrase "there shall be neither slavery
nor involuntary servitude," carried with it
an exemption from any deprivation Of these
rights or immunities? Consequently we
have a practical construction of eighty years
by the whole nation acting through Congress
and the Federal Judiciary, and through the
State and Territorial Legislatures and their
Judiciaries, TO prove that the expression
had no meaning beyond that herein indica-
ted-a freedmen from enslayement; and
this must be the full intent of the constitu-
tional amendment Entertaining this view,
we think that such legislation, annulling
State laws and destroying well established
principles, cannot be deemed Inappropriate
20 the enforcement Of the amendment.
The two witnesses offered TO be introduced
in this case were both free long before
the adoption of the constitutional amend
ment, and, Of course, that amendment can
have no application 70 or bearing upon
Them as its object was erclusiUely the eman-
cipation of the negroes then held in slavery.
This presents the question in another aspect
which gives an equal if not a stronger rea-
son for refusing their testimony than that
before relied on.
II also furnishes a strong reason for not
constituting this amendment so as to give Con-
gress the power commended for, because, as
the power is clearly not given az to the half
million of negroes free at that tune, and up
on every principle of justice and policy they
were equally entitled, with the emdncipated
slaves, to the privileges and immunities Of
the amendment it would be irrational to
suppose an intention to confer such power
upon Congress for the benefit Of the eman-
cipated slaves.
Il is much to be regretted that the Legis-
lature Of Kentucky failed at its last session
to pass an act (such as that passed by the
Legislature of Georgia. giving the right to
free negroes 10 testify in such cases, and rely
upon the judges Of courts and juries to esti-
mate the degree of Credibility 10 be attached
10 their statements. Slavery being now
abolished, there is no longer any reason for
or policy in keeping up the stringent laws
formerly enforced TO discriminate vigorously
between the white and negro population.
On the contrary, every dictate of policy
points to the necessity of so legislating as to
elevate the negro in his own estimation, and
thereby give him an incentive TO assimilate
himself as near as he can by his conduct to
the whites. This, however, is a matter
with which this court properly has nothing
to do, its duty combining it strictly to the
administration Of the law as it is, leaving
the action Of the Legislature 10 the infu-
ence Of a liberal and enlightened public
sentiment But believing that the act Of
Congress relied upon is unconstitutional, the
same duty Of administering the law imperi-
ously requires that this court shall refuse il
obedience. II this court should enforce that
act it would be allowing a precedent by
which Congress could proceed to give suffrage
TO the negroes, annul all State laws prohib-
iting intermarriage between negroes and
whites, and efecmally destroy the intended
barrier between State and Federal power,
and rapidly lead 20 that consolidation Of
power in the Federal Head which would
render it the imperial despotism against
which we were So earnestly warned by
WAsHNGToN and other great founders of
the Republic as the necessary death of the
national liberty and prosperity.
For these causes the court refuses 20 re-
ceive the testimony Of the negroes as offered
as witnesses in this cause.