State v. Bender

1 Del. Cas. 478

Opinion

Bassett, C. J.

The Court have found themselves involved in embarrassment as to the questions before them and could have wished for more time. It is however the opinion of a majority of the court that the witness is admissible — his credit to be left to the jury. The objection arises upon the Act of Assembly; at common law the witness would be competent. In order to form a proper construction of any Act the whole must be taken together. The first part of the 8th section enacts that “no slave manumitted agreeably to the laws of the state or made free in consequence of this Act, or the issue of any such slave shall give evidence against any white person,” etc. The latter part of the same section gives them certain rights of freemen, “to hold property, to obtain redress in law and equity for any injury to their persons or property.” The latter part controls or qualifies the former.

Negroes are allowed the same redress for injuries to their persons with whites. Indictment is one mode — principally useful when the party injured is the only witness to the facts necessary to be proved. The Act must be so construed as to allow the means absolutely necessary to obtain the redress, the right to which is given in express terms.

We still allow sufficient operation to the first part of the section, for we do not mean to say that a Negro is a competent witness between two whites, or in cases where other proof can be obtained, but only in cases where justice must otherwise fail.

Rodney, J., concurring. McDonough, J., dissenting.

Witness admitted.