Year: 1868

| regards an lllegltlmate person as no.
body's child, and as having no relation
in the wide world but his mother, and
requires of him the utmost strictness of
proof to overcome this presumption
Under these rules it is manifest more
difficult question was never presented
to court than is thus thrust upon the
Hastings to be decided on election day.


These difficulties have never been re-
allied from the fact that all the cases
decided by the Supreme Court were like
the one at Bar, made up 6yadmittiug tile
facts in order to get decision, not hon
estly litigated to settle right. and it is
easy to admit that a person has fifty-one
parts in hundred of white blood and
only forty-nine parts in hundred of
black blood, but quite different thing
to prove it.


A person then having African blood
proves his parentage, and under the
laws of marriage his parents will in
nearly all cases be of mixed or black
blood.


The Supreme Court says the propor-
tion must be determined, not by color,
but as question of blood, and he must
go back another step to his four grand
fparents where he meets the same laws of
marriage and the same mixed blood, and
the same rule of the Supreme Court as
to color, and he must go back another
step to his eight great grand parents,and
so on indefinitely, at each step doubling
the number whose blood is to be proved
and more than doubling the difficulties
of furnishing proof until the visi6le ad-
narture is lost in the invisible dimness of
antiquity, and instead of demonstrating
his right to vote he has only succeeded
in another mode, in demonstrating the
absolute absurdity of dividing a we'll
known class according to the relative
proportions of different blood coursing
in their veins.


Such are the rules of law in the alb
sence of Legislation, and under them
strictly applied, 1 hazard nothing in
saying that not one colored person in
a hundred could prove his right to vote.


Does the statute under consideration
increase these difficulties


No doubt it would be, as I have no
doubt it ought to be, and was intended
to be a serious inconvenience to those
partisan or fanatical judges of election,
who, from partisan or fancied philan-
thropic reasons, admit all negroes to
vote, but would it increase the Difficult
ties of a voter having African blood and
seeking his vote before honest Judges
who know the law and follow it T?


1t can be demonstrated that it would
greatly lessen them.


Under the rules of law every witness
must know of his own knowledge the
facts be speaks of.


Under this statute all the oaths are
on knowledge and belief; thus admitting
not only what each witness knows of his
own knowledges but all he has heard
and believes.


In this it is like the verifcation of
pleading which only requires belief, and
unlike all oaths in court and all other
election oaths which require knowledge,
so that under this form of oath every
fact necessary to entitle person to his
vote may be proved without a witness
who has any personal knowledge of any
one of them. In other words this statute
requires not facts but the conclusions of
witnesses, whether those conclusions
were drawn from hearsay or any other
source provided the witness himself be-
lieved in his conclusion.


Keeping this fact in view let us look
at the questions: Questions one and two,
as to age and place of birth may, or may
not be material, but they are mere pre-.
liminary questions, such as are asked
every day in courts of justice, and are
certainly unobjectionable. The ques-
tions as to marriage and color of parents
we have seen are notsonly material but
are absolutely essential.


This statute merely valves the strict
proof required at law.


TIE fifth and sixth questions refer to
the status of the person himself, and if
he can answer that he and his children
associate with, and. are recognized as
white people, he is proved to be a
",obite" person in the ordinary and pop
ular sense of that word, and of course
need not prove that he is judicial
ao1tite man, that is less than half black.
1t may be objected that the oath OF tbe
person himself is not taken without 9TH
er proof. But the right to require fact
to be proved is the right to require it to
be proved by witnesses, and it is a
very recent thingto regard an interested
person as witness for any purpose, and
when the statute only requires fact to
be believed by witness it is not un-
reasonable to require that more than one
person in the community should have
the same belief


But requiring two witnesses to fact
has never been regarded as such an
abuse of legislative discussion as to au-
thorize judicial interference.


Under general power to naturalize
foreigners Congress required facts to be
proved by "citizens of the United
States" and this language was construed
to mean at least two. Brightley's
Digest 36 sec. Is. This law was on the
statute books for many years, and no
question was ever raised as to its pro-
priety, much less as to the power of
Congress to pass it.


Section excludes opinions of wit
nesses founded merely on appearance
without facts of parentage.


1t is enough to say of this that at
common law the opinions of witnesses
are excluded altogether, and the Su-i
preme Court has taken away even the
foundation of these opinions by making
it question of blood and not of appear
ance. 1t also excludes reputation as toI
parentage without proof of marriage or
cohabitation from which marriage is in
ferred.


But we have already seen that mar