STATE v. SMITH AND WROTTON

Indictment for kidnapping against the Act of Assembly, June 14, 1793 [ 2 Del. Laws 1093]. One John Ralston was produced by Ridgely, Attorney General, to prove that he had manumitted the Negro on the ___ day of ___ 1790, as appeared by a manumission deed which he did not produce.

Miller, for defendants, objected to his testimony collectively with the Negroes, which he apprehended was also about to be offered. Ralston should have produced the deed of manumission — otherwise, his own testimony would be nothing and then the Negro for aught that appears is still a slave and cannot be a witness.

Secondly. Admitting for the sake of argument that the Negro is free, yet she is most clearly incompetent — and in this idea he was not unassisted by a judicial determination in his favor. In the case of Collins v. Hall, in Sussex County at October Term, 1793, the counsel for the plaintiff offered as a witness one Levin Thompson, a Negro; upon an objection made to his competency, it was proved that he came from the State of Maryland — that he was born there of free parents and ever since his residence here had been reputed a freeman. The counsel for the defendant still contended that he was incompetent: first, on principles of policy; secondly, on the construction of the Act of Assembly, February 3, 1787 — and it was determined by the court upon the grounds taken by the defendant's counsel, that the witness was incompetent and he was rejected. Secondly. He argued from the Act, 1787, "no slave manumitted etc. shall give evidence against any white person though he may obtain redress," etc., by which latter clause a free Negro may recover against a white or convict him in a criminal prosecution for an injury to his person or property, provided he substantiates the charges by legal and competent evidence. But it will most certainly infringe the wise principles of Collins v. Hall to admit the witness about to be offered in this cause.

Ridgely, Attorney General, contra. Mr. Ralston is no party now to be affected by any decision which is now about to be made. If according to the feudal system formerly prevailing in England he had come into court and declared that his villein was free, it amounted to an affranchisement of the villein. The evidence of Ralston therefore is sufficient, independent of any manumission that the Negro is free, for it is not denied that she has been his property. Secondly, the Negro is the only witness to prove the charge contained in the indictment against the defendants — therefore, she is admissible on the necessity of the case, independently of the Act of Assembly. Collins v. Hall was a civil case — and the parties both white — State v. Bender, ante, is in point which has ever since been acquiesced in. In State v. Beauchamp, this term, a Negro was admitted to prove that he was struck by Beauchamp to which there was no objection.