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 The next year, this law was repealed and a statute[[614]] enacted that colored persons should be competent to testify “as if they were white.”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.
AS JUROR
Most of the legislation and suits concerning the Negro as a witness came during the years between 1865 and 1870. Since then, the right of the Negro to testify in court has been generally undisputed. With the Negro as a juror, it has been different. There has not been a great deal of legislation about the Negro as a juror, not even during the years 1865–70 which were so prolific of race legislation. But the court reports from 1865 have been abundantly supplied with cases that have to do with the Negro as a juror, not referring so much to his right to serve as to his actual service on the jury. First, reference will be made to the legislation on the topic, then a number of cases will be discussed, most of which have turned upon a few fundamental principles of constitutional law, and, finally, a word will be said of Negro jury service as it actually exists.
The fourth section of the Civil Rights Bill[[623]] of 1875 reads: “That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude, and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, upon conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.” As was seen in the previous chapter on the civil rights of Negroes, the first sections of the Civil Rights Bill were declared unconstitutional in 1883. But, as will be seen in the discussion of the cases that have arisen about the Negro as a juror, the section quoted above has stood the test of constitutionality and is still a part of our Federal statute law.
When the States outside the South saw, in 1883, that the Federal Government was impotent to secure civil rights to Negroes, they began to enact Civil Rights Bills of their own, which virtually copied the Federal statutes of 1875. The following States enacted statutes practically the same as the Federal law referring to jury service: Indiana,[[624]] in 1885; Michigan,[[625]] in 1885; New York,[[626]] in 1895; Ohio,[[627]] in 1884, and Rhode Island,[[628]] in 1885. The only difference between these State statutes and the Federal statute is in the punishment for keeping a person off the jury because of his race or color. Indiana and Michigan impose a fine of not less than one hundred dollars or imprisonment of not more than thirty days, or both; New York imposes a fine of from one hundred dollars to five hundred dollars or imprisonment from thirty to ninety days, or both; Ohio imposes a fine from fifty dollars to five hundred dollars or imprisonment between thirty and ninety days, or both; Rhode Island imposes a fine not to exceed one hundred dollars. This is practically all of the jury legislation outside the South, which has been found.
In Arkansas,[[629]] in 1867, a law granting certain rights to Negroes had the following provision: “That nothing herein contained shall be construed to repeal or modify any statute or common law usage of this State respecting ... service on juries.” Though nothing is said of it, one may infer that this meant that Negroes were not to sit on juries. A Louisiana[[630]] law of 1880 states that, in the selection of jurors, “there shall be no distinction made on account of race, color, or previous condition.” This State at the time was in the hands of the Reconstructionists. Mississippi,[[631]] in 1867, provided that freedmen should not be competent to serve as petit or grand jurors. A law of Tennessee[[632]] of 1866, giving Negroes the right to testify, had the provision that it should not be construed to give colored persons the right to sit on juries in that State. The same year, a law[[633]] repealing certain other acts had the provision that nothing in the act should be construed to admit persons of color to serve on the jury. But in 1868, the Negroes of Tennessee[[634]] were given full rights in this respect. This appears to be all of the legislation as to Negro jurors in the South between 1865 and the present.