AS WITNESS
When one comes to the Negro as a witness, he finds much legislation and many judicial decisions, but they are confined largely to the first years after Emancipation; that is, to the years during which the rights and privileges of the Negro as a freeman were being defined and fixed. The Negro slave had been either deemed incompetent as a witness, or, if deemed competent, his testimony was admitted only in certain actions.
In 1866, a white man in Kentucky was indicted for entering the house of a Negro and committing larceny. At the time a Negro in that State could not testify against a white man. A Circuit Court[[594]] of the United States decided that it could take jurisdiction of this case under the Civil Rights Bill of 1866, holding that the Negro, as a citizen, had the right to be a witness in court. This appears to be the only case in which the Federal court has adjudicated upon the right of a Negro to testify.
A law of Alabama[[595]] of 1865 made Negroes competent to testify only in open court and only in cases, civil or criminal, to which a freedman, free Negro, or mulatto, was a party. This was reënacted in 1867.[[596]] In 1886, a white man in Mobile was tried for the murder of a Negro. All the witnesses for the prosecution were Negroes, and all for the defendant, white people. The question of the color of witnesses was raised, and the city court of Mobile charged: “... it is immaterial whether the witnesses were white or black, if you believe beyond a reasonable doubt that black witnesses are telling the truth, it is as much your duty to convict on their evidence as though they were white.” There was an exception to this charge, but the Supreme Court of Alabama[[597]] overruled the exception. The present law of Alabama seems to be that the color of the witness is immaterial in determining his competency.
The Supreme Court of Arkansas,[[598]] in 1869, held that by the Civil Rights Bill of 1866 the laws prohibiting Negroes from testifying became inoperative. No other case on the point seems to have arisen in the State.
The Constitution[[599]] of Florida of 1865 permitted Negroes to testify only in proceedings founded upon injury to a Negro or in cases affecting the rights and remedies of Negroes. A statute[[600]] of the same year, relative to testimony in general, provided that the testimony of Negroes should not be taken by deposition in writing or upon written interrogation, or “otherwise than in such manner as will enable the court or jury to judge the credibility of the witness.”
The Constitution[[601]] of Georgia of 1865 made it the duty of the general assembly to provide laws prescribing in what cases the testimony of Negroes should be admitted in the courts. This is the only reference to the Negro as a witness found in the Georgia statutes or court reports.
Kentucky,[[602]] in 1865, provided that Negroes and mulattoes should be competent witnesses in all civil proceedings in which Negroes or mulattoes were the only parties interested in the issue, and in all criminal proceedings in which Negroes or mulattoes were the defendants. In 1867, the Court of Appeals of Kentucky[[603]] held that the law of Kentucky prohibiting a Negro from testifying against a white person was still in force and was not rendered inoperative by the Civil Rights Bill of 1866.
The Constitution[[604]] of Maryland of 1867 provided that no person should be incompetent as a witness on account of race or color unless thereafter so declared by an act of the general assembly. The general assembly appears not to have acted.
Mississippi,[[605]] in 1865, provided that freedmen, free Negroes, and mulattoes, should be competent in all civil cases to which a freedman, free Negro, or mulatto was a party, and in criminal cases in which the crime charged was alleged to have been committed by a white person upon a freedman, free Negro, or mulatto. But in 1867, Negroes were given the right to testify on the same terms as white people.[[606]] In 1865, South Carolina[[607]] declared that Negroes might testify in cases to which a person of color was a party. Tennessee,[[608]] the same year, provided that Negroes and Indians should be competent as witnesses “in as full measure as such persons are by an act of Congress competent witnesses in all the courts of the United States.”
The Constitution[[609]] of Texas of 1866 contains the following section: “Africans and their descendants shall not be prohibited, on account of their color or race, from testifying orally, as witnesses, in any case, civil or criminal, involving the right of injury to, or crime against, any of them in person or property, under the same rules of evidence that may be applicable to the white race; the credibility of their testimony to be determined by the court or jury hearing the same; and the legislature shall have power to authorize them to testify as witnesses in all other cases, under such regulations that may be prescribed, as to facts hereafter occurring.” In pursuance of this authority, the legislature[[610]] enacted that persons of color should not testify except where a prosecution was against a person of color or where the alleged offence was against the person or property of a person of color. But in 1868, the Supreme Court[[611]] of Texas held that the first section of the Civil Rights Bill gave Negroes the right to testify, and in 1871 the legislature[[612]] said that in the courts of that State there shall be no exclusion of any witness on account of color.
Virginia,[[613]] in 1866, provided that Negroes and Indians should be competent to testify in cases in which a Negro or Indian was a party. The testimony of Negroes had to be “ore tenus, and not by deposition.” The next year, this law was repealed and a statute[[614]] enacted that colored persons should be competent to testify “as if they were white.”
Thus far the legislation on Negro testimony in the Southern States only has been given. Similar questions have arisen in some of the other States. Thus, by an early statute of California[[615]] “no Indian, or person having one-half or more Indian blood, or Mongolian, or Chinese,” was permitted to give evidence in favor of or against a white person. The Supreme Court[[616]] of the State held in 1869 that this statute violated the Civil Rights Bill and was therefore null and void. A minority of the court, however, dissented on the ground that the Civil Rights Bill itself was unconstitutional as interfering with the domestic relations of citizens.
A law of Indiana[[617]] of 1865 provided that all persons of competent age, without distinction as to color or blood, should be competent as witnesses, but provided that no Negro or mulatto who had come, or who should thereafter come into this State in violation of the thirteenth article of the Constitution of the State (prohibiting the immigration of free Negroes) should, while said article continued in force, be competent as a witness in any case in which a white person was a party in interest. It also provided[[618]] that where a Negro, Indian, or person excluded on account of mixed blood was a party in the case, his opponent should be excluded. Nevada,[[619]] the same year, gave Negroes the right to testify, but not in favor of or against a white person, and also provided that the credibility of such Negro, black, or mulatto person should be left entirely with the jury. Washington,[[620]] in 1866, provided that no one should be incompetent as a witness “by reason of having Negro blood.” But in 1869, the legislature[[621]] said that Indians or persons having over one-half Indian blood should not be competent to testify in an action or proceeding to which a white person was a party. West Virginia[[622]] passed a law in 1866 that no person should be incompetent as a witness on account of race or color.
During the first years after Emancipation, the States were very doubtful of the Negro’s fitness as a witness. In saying, as many of them did, that he could be a witness only in cases in which a Negro was a party, they were following the “Black Laws” before the War, to which reference was made in the chapter on “The Black Laws of 1865–68.” That they were doubtful of the testimony of the Negro is shown by the provision of the act that the Negro’s credibility should be the subject of a special charge by the court and that his testimony should be given orally. It has been seen that some of the States soon repealed their laws discriminating against the Negro as a witness, and that others enacted statutes allowing him to testify upon the same terms and conditions as a white person. In some of the States, the records do not show that the right to testify in court has yet been given to the Negro. But it must be taken as settled that, even in those States which are silent on the subject, the Negro does have the same right to testify as the white person. How much weight is actually given to his testimony is a matter not of law, but of fact, to be determined by the trier of fact, or jury, as the case may be. It may be said, in short, that, at present, the right of the Negro to testify in court is precisely co-extensive with the right of the white person.