State v. Bender

1 Del. Cas. 660

Opinion

Bassett, C. J.

The Court would have been desirous of more time in settling their opinion on a subject of so much importance, especially as this is the first case of the kind which has come before the Court since the passage of the Act of 1787. But this is one of those cases which arise during the trial of the cause, and without the determination of which the business cannot proceed. The question which the Court are now to decide is whether in the trial of a criminal charge, where an injury has been done to the person or property of a free Negro, when no white witness was present, the Negro who was injured and who is prosecutor may be sworn? And a majority of the Court are of opinion against the objection.

We do not say that a free Negro may be generally admitted as a witness, or in any cases between two white persons, or in a case where a free Negro is a prosecutor, as the present, if a white person were present, or other evidence could be procured. It is upon the particular circumstances of this ease, that the decision must be understood to be made, and its circumstances are totally different from the case of Collins v. Hall, lately adjudged in the Supreme Court. That was a. cause between two white persons, and there appeared no existing necessity for the admission of that witness. Here it is otherwise; if this prosecutrix be not sworn, the offender against the laws of the state will remain unpunished, and injustice will be the consequence. This is certainly one mode of redress, among many others, to those who receive personal injuries. It may indeed be considered, in a great degree, as the only mode of redress in the contemplation, of the legislature. The consequences of prohibiting the use of this, particular method of free blacks’ doing justice to themselves by being heard on a criminal prosecution, when they have no other witnesses, are too numerous and too important to escape consideration.