The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1866-07-17
The Civil Rights Act.

NIFTY, ithee unconSutu0onanCy OF the
Ecivil rights Act, passed over the Pre-
tsident's veto by the radical majority
in Congress. We have alluded to
one or two Of these decisions, but we
place the subjoined on record as one
of thesbest yet delivered. The -deci-
sion is rendered by Judge Harbeson:
Commonwealth Of kentucky rs. Patrick:
Byron.
Patrick Byron, white man, ispre
sented before this, an examining
court, charged with shooting and
wounding, with intent to kill, one
VIM. Montague, free negro. The
Commonwealth; by attorney, moves
the court to permit the introduction,
as Witnesses for the Commonwealth,
of two free negroes, VIM. Montague
land Sarah Morton, upon the ground
that, since the passage of the Act Of
Congress known as the 'tcivil rights
bill, negroes are made competent
Witnesses against white persons in
the United States.
The question presented for deci-
sion is, whether Congress can. annuI
the law of Kentucky which forbids
the admission of negro testimony as
against white people.
There is no pretoncc that Congress
possessed any such power under the
original Constitution, but it is claim
ed to be derived under the second
clause of the late constitutional
amendment, giving Congress power,
by appropriate legislation, to enforce
the amendment. The main or first
clause of that amendment, or its
equivalent, has been the fundamental
law OF every non-slaveholding State
and Territory of the United States
since the ordinance of 'S7, from
which the amendment was copied-at
least in substance. Yet, in each and
all of them, free negroes have been
excluded from testifying against white
persons. Certainly, then, such OK
clusion is not IN enslavement of the
negroes, or subjecting them to AL
involuntary servitude." II SO, then
how could it. have prevailed for the
past eighty years, if the phrase ''therc
shall be neither slavery nor involun-
tary servitude," carried with it an
exemption from any deprivation Of
these rights or immunities? Consc-
4uently we have practical construc-
tion Of eighty years hy 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 be-
yond that herein indicated-a free
dom from ensiavement; and this must
be the full intentof the constitutional
amendment. Entertaining this view.
we think that such legislation, an
nulllng State laws and destroying we'll
established principles, cannot be
deemed appropriate tothc enforce
ment Of the amendment. -
The two witnesses offered to be
introduced in this case were both free
long before the adoption Of the con
stltutlonal amendment, and Of course
that amendment can have no applica-
ton to OF bearing upon them, as its
object was exclusively the emancipa-
ton OF the negroes then held in
slavery. This presents the question
In another aspect, which gives an
equal, If not a stronger, reason for
refusing their testimony than that be
fore relied on.
1t also furnishes strong reason for
not constituting this amendment so as
to give Congress the power contcnded
for, because, as tho power is clearly
not given as to the 100000 negroes
free Mt that time, and upon every
principle of justice and policy they
were equally entitled, with the cman-
cipated slaves, to the privileges and
immunlties of the amendment, it
would bc irrational to suppose an in
tention to confer such power upon
Congress for the benefit of the eman-
cipated slaves.
Ii is much to be regretted that the
Legislature of Kentucky failed, at its
last session, to pass an Act (such rs
that passed by the Legislature of
Georgla) giving the right to free
negroes to testify in such cases, and
rely upon the judges of courts and
lurles to estimate the degree of credi-
bility to be attached to their state
ments. Slavery being now abolished,
there is no longer any reason for or
policy in keeping up the stringent
laws formerly enforced to discIimi-
nate vigorously between the white
and negro population On the CON
trary, every dictate of policy points