Delaware tribune. [volume] (Wilmington, Del.) 1867-1877, 1867-12-19
The Civil Rights Act.
JUDGE GILPIN's OPINION ADVERSE TO ITS
CoNsTITUTIoNALITY.

JUDGE GILPIN's OPINION ADVERSE TO 1.
ooNsTITUTIosALITY.
In the case of the State vs. Rash, q tri
for assault and battery in the Court of th
State, for Kent County, the question of Ii
Constitutionality of the Civil Rights A,
arose, and Judge Gilpin pronounced til
following opinion, in which Judge Wcotte
concurred, and Judge Wales dissented =
| This is the first time the constitutionalit
Of the Civil Rights bill, or any provision 9
it has been formally presented and argued
and submitted for the decision of this Court
At the first term of the Court-in the coun
ty of Sussex, tllink--which was held afte
the passage of the Act of Congress, am
also at the terms which Immediately follow
ed in Kent and New Castle, upon trials O
negroes for felohies took occasion to an
nounce to the gentlemen Of the bar, tina
| whenever the question OF the constitution
ality Of the Civil Rights Bill, as touchin,
proceedings in the Courts of this State
hosuld be made and argued, we should holt
ourselves bound to decide it. From tha
| day to this, no one, in either county, ha.
shown sufficient interest in tho question, t.
present and argue it; and SO the question
has remained undecided up to this time.
The precise question raised by the objec-
tion of Mr.. Comegys, on behalf of the de-
fendant, namely, the right of a negro to
give evidence in the Courts of this State.
against white person, by force of the Civil
Rights Bill, and in contravention of our
own Act Of Assembly, has never hitherto
been presented for our consideration-has
heyer hitherto arisen here. 1t has, however,
frequently arisen in other States, and it is
certainly matter of regret, that the question
has not been passed upon by the Supreme
Court of the United States.
1t may possibly turn out, that the testi-
mony of the negro man called as witness,
may be properly admissible on another
ground. However, the question now before
US for decision, is the Competency Of the
negro, to give evidence in this court, by
force of the Civil Rights Bill, and am not
disposed to evade it. 1t may as well be
settled now, so far as this Court is concern
ed, as at 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 to the time when sla-
very was first introduced into this country.
Indeed, we know of no period in our histo-
ry, when they were held competent to testi-
fy, against white person, in any case, civil
OF criminal; except under special condi-
tions, as provided for by the Acts of 1887
and 1893. The common law doctrine, that
slaves were competent witnesses, has never
been recognized in this State; on the con-
trary, the rule OF exclusion has always pre-
vailed as settled law,
AS slavery was exclusively confined to the
black or colored race, color became the
badge or sign Of servitude, and the rule of
exclusion was extended and applied to all
who bore that badge, whether slave or free.
And so the law continued to be, until modi-
fled by the Acts of Assembly, to which l
have Just referred,
think it mistake, to assign as the
ground Of their incompetency, the want of
sufficient mental capacity or intelligence to
speak the truth. 1t seems to me rather, that
the theory or ground upon which they were
excluded, was an assumed defect of moral
character on their part, ,superinduced by their
ignorant, degraded and servile condition.
They were slaves. They were subject, body
and mind, to the absolute control of their
masters, and were bound to obey their mas
ters' will, in all things. In course of time,
some of them were set free, and were recog-
nized by the law as free. But the rule of
unqualified exclusion remained In full force,
until the Legislature, by the Acts of 1887
and 1899, recognized free negroes as possess
ing certain civil rights, to wit The right to
hold property and to obtain redress in law
and equity, for any injury to person or prop
erty; and allowed them, under certain cir
cumstances, to give evidence against white
persons.
Now, do not intend that my opinions
in regard to the law which excludes negro
testimony, shall be misunderstood. l hold
1ax 1..a
condition of things has changed. The rea-
son for the rule Of exclusion has ceased to
exist. The negroes are now all 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 ineXpedient and
unwise, and that it should be repealed: and
that negroes should be made competent to
testify, in all cases in which white persons
uuder like circumstances are held to be
competent. Their credibility would still be
left to a white jury. Moreover, their evi
dence is becoming every day, more and
more important to the white race, to say
nothing of its Importance to the black race.
And now, as to the Civil Rights Bill, or
rather, as to the power of Congress under
the Constitution, to prescribe u rule, manda-
tory in its nature, requiring State Court to
before it. Has Congress power to do this
Has Congress power to prescribe rules of
evidence, and regulate the mode of proceed
ing in State Court? Or, in other words,
has Congress power to compel a State court
to admit certain class of persons to testify,
in contravention of State law p
Prior to the adoption ofthe Constitutional
Amendment, it was always and everywhere
conceded, that Congress had no power to
regulate the remedy in State Courts but
that this power belonged exclusively to the
States, respectively. Now, the admission or
rejection of evidence-the competency or
incompetency of witness. touches the re-
medy; and the remedy, as we have said,
subject to State regulation and control. Even
in regard to contracts, the States may mod
ify the remedy as they please, provided they
leave some remedy.
Again, 1t seems to have been pretty well
settled, that the entire judicial power Of the
United States, must be vested in Federal
Courts; for the Constitution expressly re-
quires that the judicial power shall be vest
ed IN courts ordained and established by the
United States. The Constitution is impcra-
tive on this point. 1t would seem, there
fore, quite clear, that Congress can not con-
fer upon, or vest in, State Court, any judi
CHI power OF authority, OF impose upon IL
the duty OF performing any Judicial act or
function, prescribed by a Federal law. A
Stale Court derives its Jurisdiction and pow
ers from the Constitution and laws of the
State; and it is not, and cannot be made the
instrument Of Congress for the enforcement
of Federal laws. If, therefore, Congress
cannot confer any judicial power or author
ity on State Court, it would seem to fol-
low, that it cannot compel State Court to
admit witness to give evidence. He can
not "give evidence" before he is sworn, and
he cannot be sworn without the order of the
Court-the swearing of him is the act of the
Court--his admission or rejection is the act
of the Court-and these several matters in
volve the exercise of discretion and judg-
ment, and are of judicial character. They
are nor merely ministerial.
The Civil Rights bill containins many pro-
visions-some of them, of very grave char
acter. One provision of law may be un-
constitutional, ,and all the rest constitutional.
Or a law may be constitutional as applied to
| the Federal Courts, and unconstitutional as
| applied to State Courts. All that concerns
us for the present, however, in regard to the
| Civil Rights bill, is the clause in the first
section, which declares, in effect, that negroes