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.”