ECCENTRICITIES OF JUDICIAL DECISIONS.
The rule is seen also in judicial decisions, which may be classed among the eccentricities of jurisprudence. Subtilty is a common attribute of courts, but in these cases subtilty at times becomes fantastic. Reading them, we may well confess that truth is stranger than fiction.
Thus, although slaves are not permitted to testify, their conversation or declarations may, under certain circumstances, be admitted in evidence. For instance, according to a decision in Missouri, if a white person converses with a slave, the conversation, being otherwise admissible, may be proved by any other white person who heard it. In this case, Judge Scott said: “That negroes cannot testify against white persons is clear; but this rule cannot be carried so far as to exclude the conversation of a negro with a white person, when the conversation on the part of the negro is merely given in evidence as an inducement and in illustration of what was said by the white person. If the conversation of the negro had been proved by herself, then it would clearly have been illegal. Here the State proved by competent witnesses that certain remarks were made to the plaintiff in error in order to show what her reply was. It is a matter of indifference by whom they were made. All that was required was to prove by competent evidence that they were made. That they were made is a fact which may be proved like any other fact in the cause.”[56]
On the same principle, it has been decided that any remarks by a slave to a white person, calling for some reply on the part of the latter, may be proved by the testimony of white persons, in order to show the nature of that reply, or that none was made. The question arose on an indictment for enticing a slave, when Judge Goldthwaite said: “The question which the Court is called upon to determine is simply whether the admission of a white man to the truth of any statement made by a slave in his presence and hearing can be inferred from his silence. The rule in relation to evidence of this character, so far as we are able to deduce it from adjudged cases and the best elementary writers, is, that the statement must be heard and understood by the party affected by it, that the truth of the facts embraced in it must be within his knowledge, and that the statement must be made under such circumstances and by such persons as naturally to call for a reply. To reject the evidence in the case under consideration, solely on the ground that the party making the declaration was a slave, would be in effect to decide that under no conceivable circumstances could a statement made by a slave call for a response from a white man,—a proposition in direct opposition to our daily observation and experience. That the declaration was made by a person whose condition rendered him incompetent as a witness does not in the slightest degree affect the principle on which evidence of this character rests. If the declaration was made by a slave, and the party affected by it had made by his reply a direct admission of its truth, there could be no doubt of the admissibility of the statement and reply; and in cases of implied admissions, the admission, instead of being made by language, is made by the silence of the party.”[57]
There seems no end to the illustrations of this exclusion; as, for instance, when a colored woman acted as interpreter between a testator and the person who drafted the will. In this case, Judge Lumpkin said: “We hold, that, if a negro interpreter, incapable by law of being sworn, is the only channel of communication between the testator and writer of the will, and there be no other evidence of the testator’s knowledge of its contents or his assent thereto than that which is derived through this medium, the will cannot be executed. But if the will be written in the presence of the testator, and, in a language which he understands, it is read over to him, and his dictation and approval of the instrument are interpreted by a negro in his hearing, and in the hearing of others interested in its contents, and he signifies no dissent thereto by signs or otherwise, but, on the contrary, is understood to express himself satisfied, the will may be established, especially if it appears to have been made in conformity to the previously declared intentions of the testator as to the disposition of his property.”[58]
It has been decided that the incapacity of a free colored person will not prevent him, even in a proceeding against a white person, from making an affidavit required to obtain a continuance, a new trial, absent testimony, or bail, or from swearing to a plea of non est factum. He may also bind a white person to keep the peace, or make affidavit for a writ of Habeas Corpus; and generally he may make such affidavits as may be necessary to commence a suit, or to procure such orders or steps to be taken therein as may be required to bring on a trial.[59] Without this capacity, he would, according to Chief Justice Robertson, of Kentucky, “be virtually disfranchised.” But the Chief Justice adds, that, when he is swearing to facts against a white man, to compel him to keep the peace, “he is not a witness, but a party swearing to what any other party may.”[60] And thus his incapacity as witness is still recognized.
In another class of cases, where it became necessary to show the mental condition or bodily health of the slave, his declarations have been held to be admissible, even in a suit against a white person; but they must be proved by white testimony. Thus, in an action for breach of covenant in not teaching a slave bound apprentice to the business of coach-making, the defendant having offered to prove, that, when he wished to instruct the slave, and threatened to punish him, if he did not apply himself, the latter, as soon as the defendant was out of the way, would declare “that he did [not] care about learning the trade, it was no profit to him, and if he could avoid the lash, it was all he cared for,”—it was held by that prominent magistrate, Mr. Justice Gaston, of North Carolina, that the declarations of the slave were admissible, “because his disposition and temper are subjects of investigation, and these cannot be ascertained but through the medium of such external signs.”[61] In another case the same question occurred under these circumstances: A slave was hired by his master to work in certain gold mines; but, while busy at the bottom of a shaft one hundred and eighty feet deep, he was struck on the head by an iron drill weighing five pounds, which fell from the top, and his skull was fractured so that trepanning became necessary, and “a large piece of the skull-bone was cut out.” In an action by the master for damages, Judge Pearson commented on this rule of evidence: “It being material to ascertain the bodily condition of the slave, his complaints of headache when exposed to the sun, and his declarations that he was unable to work in the sun or to endure hard labor are admissible.… The statute excluding the testimony of a slave or free person of color against a white man has no application. The distinction between natural evidence and personal evidence, or the testimony of witnesses, is clear and palpable. The actions, looks, and barking of a dog are admissible as natural evidence upon a question as to his madness. So the squealing and grunts or other expression of pain made by a hog are admissible upon a question as to the extent of an injury inflicted on him. This can in no sense be called the testimony of the dog or the hog. The only advantage of this natural evidence, when furnished by brutes, over the same kind of evidence, when furnished by human beings, whether white or black, is, that the latter, having intelligence, may possibly have a motive for dissimulation, whereas brutes have not; but the character of the evidence is the same, and the jury must pass upon its credit.”[62]
The same principle has been recognized in still another case, where the slave died of mortification in the bowels, and no physician was called in until the day before his death, although his illness had continued for three weeks. On this occasion Judge Green said: “The statement of a sick slave as to the seat of his pain, the nature, symptoms, and effects of his malady, is as well calculated to illustrate the character of his disease as would be the statements of any other person. They are, therefore, equally admissible for that purpose. But whether expressions indicating the nature and effects of a disease uttered by the sick person are real or feigned is for the jury to determine.”[63] And this principle has also been recognized in suits for breach of covenant in the warranty of a slave, or for fraud in the sale of a slave.[64] But if the master distinctly warrants the slave sound, he is not allowed to relieve himself of liability for this false warranty by declarations of the slave to the purchaser that he is diseased. A curious case occurred in Kentucky, which illustrates this principle, and also the brutality of Slavery. A poor slave woman was very ill, when her master formed “the intention of selling her, lest he should lose her value by death.” Notwithstanding her pitiable condition, he succeeded in disposing of her for two hundred dollars, one quarter in a note and the remainder in saddle-trees, on the representation that she was “hearty and sound, and fit for business.” Although the slave woman, before the sale, told the purchaser of her sickness, the Court annulled the sale, and directed the note and the price of the saddle-trees to be given up, saying: “The slave herself told the purchaser of her sickness before the sale; and after the sale, when informed by him that he had bought her, she stated she could not be of any use to him, as she was near death. When it is recollected that frequently, on such occasions, there is a strong indisposition in such creatures to be sold, and that by stratagem, to avoid a sale, they may frequently feign sickness, or magnify any particular complaint with which they are affected, the purchaser might well disbelieve her story, especially when the words of the master assured him to the contrary. For his own statements the master is responsible, and ought not to be permitted to release himself of responsibility for his own falsehoods by showing that the slave at the time so far corrected him as to tell the truth.”[65]
The principle underlying the admission of the declarations of a slave is plainly, but brutally, expressed by Judge Pearson, of North Carolina. We have already seen, that, according to this learned judge, who was for the time the voice of the law, the declarations of the slave are not to be regarded as his testimony, any more than the barking of a dog or the grunting of a hog “can be called the testimony of the dog or the hog.” The slave complains of his sickness in words, the dog moans, the hog squeals; but the law regards these expressions of suffering alike. They may be proved as facts by competent evidence; but the slave himself cannot testify what his complaints were, any more than the dog or the hog.[66]
Such are eccentricities of judicial opinion on this important question. They are not to be regarded merely as curiosities, for they are all adopted and enforced in the national courts; so that even the most brutal language becomes not merely the voice of the law, but the voice of the nation also.