Year: 1868

an unreasonable requirement., it. could
only effect the statute so far as to strike
out the clause "or any person interrogat-
ed as aforesaid in his BEHALF" as it is a
well known rule of law recently affirmed
by the Supreme Court, that statute
will not be declared void for an uncon-
stitutional provision contained in it.


Tod vs. Fairfield Common Pleas Is
O. S. 3S4.


This would in no way effect the case
at Bar, for the plaintiff himself refused
to answer part of the questions proposed
and evaded others, and refused to
take the oath required in this section.


The portion of the statute most vic.
lently assailed is the oath required of
the voter, which it is charged no one
having African blood can take
This oath is as follows: "You do
solemnly swear (or afirm) that to
the best of your knowledge and belief
you are white male citizen of the
United States,' and know the fact to be
so from a knowledge of your parents
and pedigree"


The first part of this oath is doubt
less very striking comment on the ab-
surdity of the construction given to the
word white in the constitution, but
there can be no legal objection to it.


1t is in the precise language of the
constitution, and if a person can not
himself swear that he possesses the quail
ifications of an elector, or rather that he
6etaeoes he possesses those qualifications,
all the laws requiring ain oath and ex-
cluding those who refuse to take it are
unconstitutional, or this is valid.


But it is claimed that the last part of
the oath is not on knowledge and be-
lief but upon actnal knowledge, and that
the facts required to be sworn to are be.
yond the knowledge of everyone.


If these assumptions were correct it
would undoubtedly be a serious, if not
fatal objection to this part of the law
Are they correct2


The voter is required to be more than
half white, not in color but in blood land
the only way the blood can be ascer-
tanned we have seen is from parentage.
Then the only way the voter himself
can know that he is more than half
white is from knowledge of his parent
age and pedigree. If he has not this
knowledge how can he take the first
part of the oath2 If he has, what hard
ship in requiring him to say so.


But it is said that person can not
know of his pedigree, and we are enter
tanned with the libertine's stale joke,that
sit is wise child that knows his own
father"


Yet familiar as is this poor joke, no
facts are better or more usually known
than those of parentage and pedigree.
There is occasionally a waif cast upon
the world with no knowledge of father
or mother, and there is occasionally one
of those unfortunates, who, in law, has
no father, but the rule is, and laws are
made to suit the rule and not the excep-
tions, that every person knows his par
entage and pedigree better than he knows
most other facts, and every one familiar
with courts ofjustice has heard witnesses
almost every day testify about their par
entage and pedigree.


The fact that two persons had lived
together as man and wife, and recognized
and brought up the witness as their
child gives him the amplest means of
knowing his parentage and the marriage
of his parents. So that if he were re
quired to testify from absolute knowl-
edge he could do it, but it is not requir-
ed. The knowledge and belief clearly
apply to the whole OATH Any other
construction would be a pettifogging
perversion of the plain meaning of Ian
guage, utterly unworthy of a court of
justice passing upon the acts of the su-
preme legislative power of the State
and bound to make every presumption in
their favor, and every reasonable con-
struction to sustain law.


l hoM then,


l. That all the difficulties in the case
result from the absurd construction
given to the word white in the constitu-
tion.


2. That the statute requires less evil
dence than the rules of common law to
prove preponderence of white blood.


3. The oaths bring on knowledge and
6etef' every form of hearsay is substi-
.tuted for the personal knowledge of
witnesses required at common law.


4. That while the Supreme Court ex-
cludes appearance by making it ques-
tion of blood and not of color, this stat
ute admits not only color but even the
opinions of witnesses as to color.


Thus on every point this statute re-
lakes the rules of common law, SO that
while not one colored person in a hun
dred could prove his right to vote under
the rules of law honestly and fairly ad-
ministered, not one in hundred enti-
tied to vote would be excluded under
this statute administered in the same
spirit.


These are the only portions of the
law in any way involved in this case,
except portion of Sec. 10, which pro-
vides that no recovery shall be had un-
less the judges act corruptly.


A fact essential to a recovery, must
be plead and in this case "bad faith"
which is never presumed against a per-
son acting judicially, must be plead,
uuless we hold that the Legislature
when requiring a person to act in a
quasi Judicial capacity, cannot protect
him when he acts honestly and accord
ing to his best judgment a proposition
too monstrous to entertain.


1t is-also provided in Sec. A of an act
to preserve the purity of elections page
102, vol. 65, that judges of elections
shall not be liable for damages for re-
jecting the votes of persons having
visible admixture of African blood.


The demurrer goes back to the first
defective pleading and the petition un-
der the provision first referred, is mani
testify defective in that it does not plead
"bad faith" and under the second there
L. r.