This proscription, or its equivalent, is traced to the earliest age. It belongs to the Barbarism of Slavery. Even as applied to free colored persons, it must be considered as a relic of Slavery not yet removed out of sight.
The rule may also be treated as belonging to that system of evidence which, in defiance of reason, undertook to declare in advance that certain classes of witnesses were incompetent to testify,—or, in other words, that the court and jury should not be permitted to hear what they had to say on the issue. In the early Common Law numbers were excluded who are now admitted to testify; and the Committee cannot err, when they declare that the plain tendency of recent legislation, and also of judicial decisions, in England and in the United States, has been to limit the exclusion of witnesses, allowing the court and jury, on hearing their testimony, to estimate its weight and value. The whole system of exclusion was covered with ridicule by Jeremy Bentham,[72] who exposed its irrational character. In our own country it has been treated in a similar spirit, in a series of masterly essays on the Rules of Evidence, by the present learned Chief Justice of Maine, Hon. John Appleton.[73] Its origin may be traced to ignorance and prejudice. There was a time, when, in Great Britain, at least on the borders of England and Scotland, “an Englishman could not be a witness against a Scot, nor a Scot against an Englishman, by reason of the enmity between the two nations; … so that, if never so many Englishmen should with their open eyes see a Scot commit murder, their testimony would signify nothing, unless some Scot or other testified the same thing.”[74] But their exclusion in this historic case was identical in principle and consequence with that still receiving the sanction of Congress.
This whole body of cases has been despatched by Jeremy Bentham in these words: “Exclusion put upon all persons of this or that particular description includes a license to commit, in the presence of any number of persons of that description, all imaginable crimes.”[75] The Psalmist exclaims: “I said in my haste all men are liars.” But the malediction of the Psalmist in his haste is gravely adopted in this proscription, which undertakes to blast “all men” of a specified description as “liars.” Assuming that all of a certain class or race or color cannot be believed on oath, it practically says, that, though present in point of fact at any crime, they are absent in point of law.
By the Mohammedan Law, no person could be convicted of adultery without the testimony of four male witnesses,—a requirement which was called by Gibbon “a law of domestic peace.”[76] The extravagance of this requirement rendered it practically a law to prevent conviction, not unlike the law excluding testimony. It is a disguised exclusion. But of the two, the Mohammedan Law is the least irrational. At all events, it does not assume the form of proscription.
The rule of exclusion, when founded on race or color, is something more than a rule of evidence from which justice may suffer. It is a proscription, which finds prototypes in other countries and times, kindred in character to the persecution of the Moors in Spain, and to that cruelty which for ages pursued the Jews everywhere, while it reveals that insensibility to the claims of a common humanity which has so slowly yielded to the demands of a just civilization. In France, during the last century, even after politeness had begun to prevail, it is recorded of a most intellectual lady, the commentator upon Newton, Madame du Châtelet, that she did not hesitate to undress before her male domestics, as it did not seem clear that such persons were men.[77] But it is in the irreligious system of Caste, as established in India, that we find the most perfect parallel. Indeed, the late Alexander von Humboldt, in speaking of colored persons, has designated them as a Caste;[78] and a political and juridical writer of France has used the same term to denote not only the distinctions in India, but those in our own country, which he characterizes as “humiliating and brutal.”[79] But the Caste of India, by which the Brahmins and Sudras have been kept apart, is already repudiated by Christian civilization as “part and parcel of idolatry.” Bishop Heber, of Calcutta, says of this injustice, it is “a system which tends more than anything else the Devil has yet invented to destroy the feelings of general benevolence, and to make nine tenths of mankind the hopeless slaves of the remainder.”[80] But the language with which this accomplished bishop condemns the heathen Caste of India is not inapplicable to that other Caste in our own country, which, in one of its incidents, despoils the colored person of his right to testify.
If we go back to the ancient Greeks, we find an interesting distinction. A slave was not believed on oath; so that one is recorded as exclaiming, in words which might be adopted in our day: “I know I am a slave: I don’t know even what I do know.”[81] But, though not believed on oath, his evidence was always taken with torture. On this account his testimony appears to have been considered of more value even than that of a freeman. Isæus, in arguing a case, said: “When slaves and freemen are at hand, you do not make use of the testimony of freemen; but, putting slaves to the torture, you thus endeavor to find out the truth of what has been done.” Any person might offer his own slave to be examined by torture, or demand the same thing of his adversary, and the refusal of the latter was regarded as a strong presumption against him.[82] Thus cruelly did this sharp people seek to counteract the senseless rule of exclusion. Torture was recognized, but justice was not absolutely sacrificed.
The Romans seem to have borrowed the practice from the Greeks, or they were inspired to kindred cruelty. Not only slaves, but even free persons of an inferior condition, were seldom examined except under torture. Any person who wished the testimony of a slave might obtain it on giving sufficient security to the master for full reparation on account of damage from his torture. Mr. Jefferson states mildly our own practice, in contrast with that of Rome, when he says: “With the Romans, the regular method of taking the evidence of their slaves was under torture; here it has been thought better never to resort to their evidence.”[83] In the latter days of the Empire, a general rule made the slave inadmissible as witness for or against his master or his master’s children, except in cases of treason, where the danger of the crime overruled ordinary considerations, and also in cases of incest and adultery, for the good reason that in a society where all domestics were slaves any other evidence could hardly be procured.[84] But the latter reason might obviously exist in the case of any crime; so that, on principle, when other proofs were wanting, resort might be had to the testimony of slaves. Indeed, a learned commentator on the Roman Law has distinctly said that this law did not admit slaves to be witnesses, unless the cause was difficult, looking to the welfare of the republic, or other proofs were wanting: “Servos lex civilis non patitur testes esse, … nisi causa sit ardua, ad rei publicæ spectans utilitatem, aut aliæ desint probationes.”[85] It became customary, in civil matters, to admit the testimony of slaves as to their own acts, although affecting the interests of their masters; and after the establishment of Christianity, when heresy took its place as a crime to be dreaded as much as treason, the testimony of slaves was received equally with regard to each.
The rule of exclusion during the Dark Ages naturally took its character from the prevailing darkness. The Barbarians did not, in this respect, soften the law of ancient Rome. Amidst the cares of empire this task was attempted by Charlemagne; but how little he accomplished may be seen in his Capitularies, where slaves are rejected as witnesses against their masters, except in cases of treason, and even freedmen, unless in the third generation, are not admitted to testify against freemen.[86] And the same intolerance is attributed to the Canon Law: “Item placuit, ut omnes servi vel proprii liberti ad accusationem non admittantur.”[87] But it appears that at this time, among some races, it was the prerogative of royal serfs, and of others not of base condition, to have their testimony received against freemen, especially in cases of childbirth, violence, or death by accident.[88] And the influence of the clergy seems to have overruled this exclusion in certain specified districts. Thus, in 1109, on the petition of the ecclesiastics of Paris, Louis the Sixth conceded to the serfs of the latter a perfect liberty of testifying and combating (testificandi et bellandi) against freemen as well as slaves; and this important concession was confirmed by the Pope, who declared, however, that there ought to be a difference in the conditions governing a family of the Church and the slaves of secular persons.[89] Although this concession was made for the sake of the Church rather than its humble dependants, it was an example by which the world became accustomed to receive the testimony of slaves.
In England, under the Common Law, the rule of exclusion on account of Slavery was never fully recognized. The villein seems to have been admitted as a witness in all cases except against his lord. “I do not know,” says Mr. Hallam, “that their testimony, except against their lord, was ever refused in England.”[90] It was only in respect of his lord that he was without rights. But he was sometimes received, although the lord himself was a party;[91] and in criminal cases generally it was no exception to a witness that he was a bondman.[92] Such, even at the beginning, was the voice of the Common Law. But with the disappearance of villenage all pretence of exclusion on this account vanished in England, never to return.