This witness is a Negro, and it has always been
the policy of the State to exclude Negroes from the rights of citizenship and from giving evidence where whites are concerned.
There are several instances in which the situation and rights of Negroes and mullattoes are rendered by the laws of the state different from those of whites. By the Act of Assembly contained in the first volume of our laws [1 Body Laws]: page 72, the trial by jury even in capital cases is taken from them; page 77, fornication between blacks and whites is more severely punished than between persons of the same color; page 307, a black cannot be appointed to inflict any corporal punishment upon a white. Article four of the Constitution gives a right to vote only to white freemen. The Act of ’87 [2 Del.Laws 887] denies to Negroes the privilege of voting at elections, of being chosen or ap*329pointed to any office of trust or profit, or giving evidence against any white person.
There is no doubt but this man must be taken to be the issue of a slave and, though he were made free by the laws of Maryland, he is clearly within the spirit of the Act of ’87. It would be absurd to suppose that the legislature intended to discriminate the capacity of freed black men according to the place from which they came; and that it would bestow rights on those emancipated by the laws of other states which it denied to such as were freed by its own.
Robinson, J., of same opinion.
Per Curiam.Witness is incompetent and must be rejected.