Charles Sumner: his complete works, volume 11 (of 20)

by Charles Sumner

EXCLUSION OF COLORED TESTIMONY IN THE SLAVE STATES.

The Committee begin with the statutes of the States where this proscription prevails. Each State will be considered by itself.

(1.) In Delaware the rule assumes its mildest form, yet even there it is indefensible. It has been expressed by Chief Justice Bayard, who, in an opinion of the court, said: “On the introduction of Negro Slavery into this country, it became a settled rule of law that slaves should not be suffered to give evidence in any matter, civil or criminal, affecting the rights of a white man.”[5] In this spirit the Revised Code of Delaware has provided that “to give evidence against any white person” is one of the “rights of a freeman.”[6] But the rule is thus applied: “In criminal prosecutions, a free negro, or free mulatto, if otherwise competent, may testify, if it shall appear to the court that no competent white witness was present at the time the fact charged is alleged to have been committed, or that a white witness, being so present, has since died, or is absent from the State, and cannot be produced: Provided, that no free negro or free mulatto shall be admitted as a witness to charge a white man with being the father of a bastard child.”[7] With this exception, the free negro or mulatto is disqualified as a witness against a white person.[8] But colored testimony is admissible in a case between colored persons, or against a colored person where the other party is white.[9]

The subtilties in the application of this rule appear in a decided case, where one of three accomplices was indicted for kidnapping a colored boy. The latter was opposed as a witness, on the ground that a competent white witness, an accomplice who had not been indicted, might be produced. But the court, considering that the statute was originally enacted to remedy injustice to free persons of color, construed it liberally, and admitted the testimony of the colored boy, on the ground that the commission of an offence by two or more persons ought not to render a witness incompetent, who would be competent, if the offence had been committed by only one person. It was further said, that the statute, when it speaks of a competent white witness, means not merely his competency in the common sense of the term, but the sufficiency of his evidence under ordinary circumstances to produce conviction,—although a jury was directed to acquit the prisoner, unless part of the accomplice’s testimony was confirmed by unimpeachable evidence.[10] In another case, where two white witnesses, not accomplices, were present at an assault, the court at first excluded the testimony of the colored person; but when it afterwards appeared that one of them was drunk and the other did not see the whole transaction, although both knew that a blow was struck, the testimony of the colored person was admitted.[11]

Still further, it has been declared in Delaware, that, on indictment of a white man for kidnapping a free colored person, the latter is not competent to prove his freedom.[12] So, also, in an action against a stage-coach proprietor for aiding in the escape of a slave, the admission of the latter that he is slave of the plaintiff cannot be received.[13] But a free colored person may make oath to his book of original entries, and thus make it evidence even against a white person, on the declared ground that “it would be idle [for the law] to recognize in persons of color the right to hold property, and to obtain redress in law and equity for injuries to person or property, if the means of this redress be denied them.”[14]

Prior to the statute originally passed in 1799, where a white person committed an assault on a colored woman, and there was no third person present, the latter was held as a witness;[15] but where several white persons were present, the colored person was held incompetent.[16]

(2.) In Maryland, the Act of 1717, Ch. 13, § 2, provides that “no negro or mulatto slave, free negro, or mulatto born of a white woman during his time of servitude by law, or any Indian slave, or free Indian natives of this or the neighboring provinces, be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any Christian white person is concerned.” Yet, nevertheless, according to this same Act, § 3, where other sufficient evidence is wanting against any negro, in such case the testimony of any negro may be heard and received in evidence, according to the discretion of the several courts of record or magistrate before whom such matter or thing against such negro shall depend, provided such testimony do not extend to depriving them of life or member.

The same system is pursued in the later Act of 1796, Ch. 67, § 5, which provides that manumitted slaves shall not be allowed “to give evidence against any white person,” nor be received “as competent evidence to manumit any slave petitioning for freedom.” But by Act of 1808, Ch. 81, § 1, it is provided, that, in all criminal prosecutions against any negro or mulatto, slave or free, the testimony of any negro or mulatto, slave or free, “may be received in evidence for or against them, any law now existing to the contrary notwithstanding.”

The original Act of 1717 does not in terms extend to free mulattoes, and the Act of 1796 does not extend to the issue of manumitted slaves. But where “a free-born white Christian man” was convicted of felony on the testimony of a mulatto born of a manumitted negro, there was among the judges in the Court of Appeals such diversity of opinion on the legality of the testimony that no decision was ever given.[17] In another case it was decided, that, where both parties are “free white Christian persons,” a free colored person is incompetent,[18] although a mulatto descended in the female line from a white woman is competent.[19]

(3.) In Virginia, the Code declares positively that “a negro or Indian shall be a competent witness in a case of the Commonwealth for or against a negro or Indian, or in a civil case to which only negroes or Indians are parties, but not in any other case.”[20] The decisions of the courts illustrate this proscription. Thus, it has been adjudged that a free colored person cannot testify for a white person, even against a colored person.[21] In another case a question was incidentally raised on the competency of a colored convict as a witness against another convict, with regard to an offence committed in the penitentiary, and it was suggested that convicts generally might be witnesses against each other.[22] This question, however, was subsequently disposed of by a provision declaring, that, on the prosecution of a convict, “all other convicts in the penitentiary shall be competent witnesses for or against the accused, except that negroes shall not be allowed as witnesses against a white person.”[23] They may, however, testify in his favor.

(4.) In Kentucky, the Revised Statutes provide that “a slave, negro, or Indian shall be a competent witness in a case of the Commonwealth for or against a slave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, but in no other case. This shall not be construed to exclude an Indian in other cases, who speaks the English language and understands the nature and obligation of an oath.”[24] Under this provision, as under that of Virginia, it has been decided that a free colored person cannot be a witness for a white person against a colored person.[25]

(5.) In North Carolina, the Revised Statutes provide that “all negroes, Indians, mulattoes, and all persons of mixed blood descended from negro and Indian ancestors to the fourth generation inclusive, (though one ancestor of each generation may have been a white person,) whether bond or free, shall be deemed and taken to be incapable in law to be witnesses in any case whatsoever, except against each other.”[26] Under this statute they cannot testify for each other in a criminal case. But the decisions furnish curious illustrations. Thus, when a colored person was convicted on colored testimony as a principal felon, it was subsequently held, on trial of the white accessory, that the record of the conviction was only primâ facie evidence of guilt.[27] In another case it was held that a free colored woman could not make affidavit charging a white man as father of her illegitimate child,[28] although the contrary has been decided in Kentucky, on the assumption that the act is merely preliminary to the real controversy.[29]

(6.) In Tennessee, the Act of 1794, Ch. 1, § 32, provides that “all negroes, Indians, mulattoes, and all persons of mixed blood descended from negro and Indian ancestors to the third generation inclusive, (though one ancestor of each generation may have been a white person,) whether bond or free, shall be taken and deemed to be incapable in law to be witnesses in any case whatever, except against each other: Provided, That no person of mixed blood in any degree whatsoever, who has been liberated within twelve months previously, shall be admitted as a witness against a white person.” Under this Act, evidently borrowed from the earlier statute of North Carolina, it was decided that a colored person could not be a witness for another colored person. The judge who pronounced the opinion of the court seems to confess the harshness of the rule, when he says: “The cases under this Act in which these disqualified persons can be witnesses for each other are when, plaintiff and defendant both being men of color, the witnesses may at the same time be said to be reciprocally witnesses against each of the parties. Perhaps the practice in Tennessee may have been heretofore much more liberal than the statute. With that we have nothing to do. As the law speaks, so it is our duty to speak.”[30] To remedy this gross injustice, the Act of 1839, Ch. 7, § 1, was passed, providing that such parties, “whether bond or free, shall be taken and deemed to be good witnesses for each other in all cases, where, by the provisions of said Act [viz. Act of 1794], they are made competent witnesses against each other in criminal prosecutions.”[31]

(7.) In South Carolina there appears to have been no statute expressly excluding the testimony of a slave against a white person, although the early Act of 1740, § 39, necessarily implies this exclusion.[32] But the rule was autochthonous. It sprang from the soil without statute. Judge O’Neall, in an Essay on the Slave Laws, declares that “a slave cannot testify, except as against another slave, free negro, mulatto, or mestizo, and that without oath.”[33] But the exclusion did not bear merely upon slaves. The judge announces that “free negroes, mulattoes, and mestizoes cannot be witnesses or jurors in the superior courts; … they cannot even be witnesses in inferior courts, with the single exception of a magistrate’s and freeholder’s court, trying slaves or free negroes, mulattoes or mestizoes, for criminal offences, and then without oath.”[34] It appears that the Act of 1740, §§ 13, 14, on which this custom was founded, applies only to free Indians and slaves;[35] so that, strictly, free negroes, mulattoes, and mestizoes are not despoiled of their right at Common Law to be heard under oath, but the uniform practice under the Act, according to the judge, has been otherwise.[36] On another occasion, another judge of South Carolina says: “There is no instance in which a negro has been permitted to give evidence, except in cases of absolute and indispensable necessity; nor, indeed, has this court ever recognized the propriety of admitting them in any case where the rights of white persons were concerned.”[37] In still another case it was decided that a free person of color is not competent in any case in a court of record, although both parties are of the same class with himself.[38]

The rule thus rigorously declared has given rise to some strange illustrations. Thus, for instance, in a suit to recover certain slaves as part of a gang named, evidence was admitted that other negroes of the defendant were accustomed to speak of those in question as belonging to the gang.[39] In another case, where the book of a tradesman was made up from the entries of a negro workman on a slate, and notice was affixed to the door of the shop that all credits there would be charged according to the negro’s entries, the Court doubted whether the book could be evidence at all,—but if at all, only as to the amount of work done, and then only against a person otherwise proved to be a customer.[40]

(8.) In Georgia, as in South Carolina, there is no statute expressly excluding the testimony of a slave where white persons are parties. But they are excluded. The Act of 1770, declaring slaves to be chattels personal to all intents and purposes whatsoever, provides further, “that the evidence of any free Indians, mulattoes, mestizoes, or negroes, or slaves, shall be allowed and admitted in all cases whatsoever for or against another slave accused of any crime or offence whatsoever, the weight of which evidence, being seriously considered and compared with all other circumstances attending the case, shall be left to the justices and jury.”[41] But where white persons are parties, the rule of exclusion seems implied. And the same exclusion seems also implied in the later Act of December 19, 1816, § 5, where the rule, that “any witness shall be sworn who believes in God and a future state of rewards and punishments,” is restricted to “the trial of a slave or free person of color.”[42]

(9.) In Alabama the exclusion stands on positive statute. The Code provides that “negroes, mulattoes, Indians, and all persons of mixed blood descended from negro or Indian ancestors to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, must not be witnesses in any cause, civil or criminal, except for or against each other.”[43]

(10.) In Mississippi, the Act of June 28, 1822, is nearly the same in language with the Code of Alabama on this subject.[44] But by Act of January 19, 1830, free Indians are placed on the same footing as white persons, and consequently can testify.[45]

(11.) In Florida the law is brief and explicit. The Act of November 21, 1828, § 16, provides that “any negro or mulatto, bond or free, shall be a good witness in the pleas of the State for or against negroes or mulattoes, bond or free, or in civil cases where free negroes or mulattoes shall alone be parties, and in no other cases whatever.”[46]

(12.) In Missouri, the Revised Statutes provide that “no negro or mulatto, bond or free, shall be a competent witness, except in pleas of the State against a negro or mulatto, bond or free, or in civil cases in which negroes or mulattoes alone are parties.”[47] But it has been decided, that, if a free negro is party to the record, even though he vouches in a white person to defend his title, colored testimony is admissible.[48]

(13.) In Arkansas, the Revised Statutes provide that “no negro or mulatto, bond or free, shall be a competent witness in any case, except in cases in which all the parties are negroes or mulattoes, or in which the State is plaintiff and a negro or mulatto, or negroes or mulattoes, are defendants.”[49]

(14.) In Louisiana, the Revised Statutes provide that “no slave shall be admitted as a witness, either in civil or criminal matters, for or against a white person”; and also, “no slave shall be admitted as a witness, either in civil or criminal matters, for or against a free person of color, except in case such free individual be charged with having raised, or attempted to raise, an insurrection among the slaves of this State, or adhering to them by giving them aid or comfort in any manner whatsoever.”[50]

The Civil Code declares “absolutely incapable of being witnesses to testaments” “women of what age soever,” and “slaves.”[51] But the Civil Code has provided expressly that “the circumstance of the witness being a free colored person is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility”;[52] so that a free colored person in Louisiana may be a witness for or against a white person, subject to inquiry as to the value of his testimony.

(15.) In Texas, the Act of May 13, 1846, provides that “all negroes and Indians, and all persons of mixed blood descended from negro ancestry to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable of being a witness in any case whatever, except for or against each other.”[53]