Delaware State journal and statesman., 1867-12-06

force Of the Civil Rights Bill, and | am not
disposed 10 evnde it. II may as well be /
settled now, so lar as this Court is concern
ed, as al any other time; since, otherwise, |
It must, necessarily, still continue to con-
front us.
The exclusion of negroes, as witnesses,
is believed TO date back 10 the time when |
slavery was first introduced into this coun- |
try. Indeed, we know oil no period in our |
history, when they were held competent TO |
testify, against white person, in any case,
civil or criminal; except under special CON
diIons, ms provided for by the Acts Of 1887
aud 1909. The common law doctrine, that
slaves were competent witnesses, has never
been recognized in this State; on the con
irary, the rule Of exclusion has always
prevailed MS settled law.
AS slavery was exclusively confined 10 the
black or colored race color became the
badge or sign of serYtnde, and the rule oi
exclusion was extended and applied to all
who bore that badge, whether slave or free.
Aud so the law continued to be, until modi-
| fed by the Acts OF Assembly to which ]
have just referred,
| l think 1t a mistake, 10 assign as tho
ground Of Their incompeiercY, the want Of
sufficient mental capacity or intelligence
| 10 speak the truth. II seems TO me rather,
that the theory or ground upon which
they were excluded, was an assumed de-
feet OF moral character ON their part,
supernduced by their ignorant, degraded
and scrvile condition. They were slaves.
They were subject, body and mind, TO the
absolute control of their masters, and were
bound TO obey their masters will, in all
| things. In course Of time, some of them
were set free, and were recognized by the
| law us free. But the rule of unqualified eX
clusion remained in full force, until the
Legislature, by the Acts ot 1887 and 1853,
recognized free negroes as possessing GER
tain civil rights, 10 wit: The right TO hold
properly and 10 obtain redress in law and
equity, for any injury person Or property;
and allowed them, under certain circum-
stances, TO give evidence against white
persons.
Now, do not intend that my opinions in
regard to the law which excludes negro tes-
tiniony, shall be misunderstood. l hold the
law TO be wrong and indefensibe. The
condition OF things has changed. The rea-
son for the rule OF exclusion has ceased TO
exist. The negroes are now ali free, and
there no longer remains any good reason
why they should not be allowed to testify.
speak for myself on this point. l think
the continuance of the law inexpedlent and
unwise, and that il should be repealed and
, that negroes should be made competent to
testify, in all cases in which white persons
under like circumstances are held to be
, left 10 white jury. Moreover, their evil
dence is becoming every day, more and
more important TO the white race, to say
: nothing of its importance 10 the black race
And now, as to the Civil Rights Bill, or
| rather, as to the power Of Congress under
, l the Constitution, TO prescribe rule, man
tlalory in its nature, requiring State Court
to admit negro as a witness, TO give evil
! .1enee before it. Has Congress power To do
/ Huc InuUppaA IN pril n
, rules OF evidence, and regulate the mode ol
proceeding in State Court? Or, in other
words, has Congress power to compel Il
Stale court to admit certain class OF per
q, sons to testify, in contraveniion OF Stat,
a law?
= PRIOR tothe adoption OF the CONSTITUTIONS
Anne endmcnt, it was always and everywhere
y conceded, that Congress had no power tt
o regulate the remedy in State Courts; bu
i that this power belonged exclusively to I'll,
/, States, respectively. Now, the admission
or rejection of evidence the competency o
IS incompetency of II witness, touches tn
& remedy; and the remedy, as VIC have said
n has hitherto always been considered MS beinl
l., subject TO State regulation and CONTROL
le Even in regard to contracts, the States mn,
Of rodily the remedy as they please, provided
they leave some remedy.
Again, il seems 10 have been pretty wei
settled, that the entire judicial power Of til
IN United States. must he vested in FEEDERS
: Courts; for the Constitution expressly rt
quires that the judicial power shall b
vested in courts ordained and established b
Sc the United States The Constitution
~ imperative on tins point, 1t would seem
u; therefore, quite clear, that Congress can nc
u confer upon, or vest III, II State Court, an
u judicial power or authority, or impose upo
u II the duty of performing any judicial act q
rs junction, prescribed by n Federal law.
a State Court derives its jurisdiction an
MS powers from the Constitution nnd laws
y, The State and 1t ia not, and cannot he mad
e. the instrument of Congress for the eniorc,
ne mcnt Of Federal laws. If, therefore, Coz
lY grGss cannot confer any judicial power
aa authority on n State Court, it would seem
ic- follow, that 1t cannot compel Il State Cou
O 10 admit u witness TO give evidence. II
ai cannot "give evidence" before lie is sworl
70, and he cannot he sworn without the order
u the COurt-the swearing Of him is the Hct
hl the Court-his admission or rejection is ii
ne act Of the Court-and these several matte
III involve the exercise of discretion and jud
SO ment, and are of judicial character. The
ne are not merely ministerial.
IN The Civil Rights bill contains many pr
H., H. visions-some OF them, Of very grave cha
,ot actcr. One provision of law may be u
in constitutional, and NIL the rest constitutions
Of Orr law may be constitutional as applied
+, - the Federal Courts and unconstitutional
,ut applied to State Courts. All that c0ncer
IL us for the present, however, in regard to Il
~ ~, Civil Rights bill, is the clause IN the fir
~ section, which declares, in effect, that negro
nc shall have fright to give evidence
vii State Courts. This "right,n as il is calle
- Congress undertakes, by the second secllo
,eJ 10 compel us to accord 10 them in this C0ul
ss,, in fear of certain pains and penalties d
nc nounced against us, in case we decline
lie obey their mandate Now, il seems to III
ras that this is an alarming stretch of Fedel
or power-an aggressive, unconstitutional i
ich vasion of the judicial authority of the Stat
mi which, if tolerated, must ultimately pro
MI destructive Of the independent administr
oss tion of public justice. The law ofthc Sta
rod excludes the negro from teBtifying; the Ci,
+ of Rights bill says he shall have right to ri
ich evidence; and thus here is brought about
direct conflict between the two laws, Th,
mn. both cannot be Obeyed, and hence, the JudR
for in the exercise of his best judgment, arriy
an cOnsclentiOusly at the conclusion, that Co
. of gress has assumed to itself the exercise
+ to power not warranted hy the COnstitutio
and that, therefore, the Act OF Congress,
ove far as il attempts, directly or indirectly,
inte regulate proceedings in the State Courts.
invalid. Was it ever before supposed
bia any lawyer that Il Judge, WHO, in the i
litv charge of his judicial functions, and
tbe obedience to the express prohibition of
,blo Statute of his own State, should refuse
allow certain class OF persons to testify,
The q case pending before Inn, could be he
and eflminaly responsible for such rclusu
nm Congress is not omnipotent. On the ca
led. IiaIy, us powers aro ,lhileu, ana lls iegls
OF the powers granted by the Consltutiu
From thp time nf Edward tlp f1biv1 un