The legal situation and the rights of Negroes in this State is an inquiry of great importance, and is entitled to the most deliberate consideration. It has received all the attention during the present argument which could possibly be devoted to it, and upon the fullest investigation of the question, the Court are of opinion that the witness cannot be admitted.
In the consideration of this question, we should not place out of view reasons of policy and public convenience. Though policy should not control law, it is frequently of service in the construction and proper explanation of it. Long before the passage of the Act of February 3, 1787, there were several laws of this state passed under the old government, which eontemplatéd and seemed to admit the different classes in our society formed by *657the whites and blacks, and the possession of superior privileges and rights by the former. Negro slaves are denied the right of trial by jury, and are directed to be tried by two justices and six freeholders. They are to be punished differently from whites for attempting to commit rapes, stealing, carrying arms, and meeting in companies, 1 Body Laws 71, 72, 73. There is an additional punishment on white women who have mulatto children, and also, on the negro or mulatto man, who is the father of such children, and on white men committing fornication with negro or mulatto women, 1 Body Laws 77. No Negro or mulatto can be employed to whip or inflict any corporal punishment on any white person, in any case whatever, [1 Body Laws 307]. By the Constitution of this state, Article 4, s. 1, all elections are directed to be by ballot; and “in such elections every white freeman of the age,” etc., “shall enjoy the right of an elector.” Thus the laws of Delaware appear to have drawn a visible dividing line between white persons and Negroes. Indeed the present situation of the community and the unalterable state of things require something of the kind. The present case seems to come within the intention and spirit of the Act of 1787, and therefore the witness must be rejected.