EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR.

REPORT, IN THE SENATE, OF THE COMMITTEE ON SLAVERY AND FREEDMen, February 29, 1864.

FEBRUARY 8, 1864, on the day of introducing his Amendment of the Constitution, declaring that "all persons are equal before the law," Mr. Sumner asked, and by unanimous consent obtained, leave to bring in a bill to secure equality before the law in the courts of the United States, which was read the first and second times by unanimous consent, and, on his motion, referred to the Committee on Slavery and Freedmen. This was in harmony with other efforts on an earlier day.1 February 29th, he reported the bill to the Senate without amendment, accompanied by the following report, of which three thousand extra copies were ordered to be printed for the use of the Senate. The success of this measure appears at a later date.2

THE Committee on Slavery and the Treatment of Freedmen, to whom was referred Senate Bill (No. 99) entitled “A Bill to secure equality before the law in the courts of the United States," have had the same under consideration, and ask leave to report.

EFORE making a change in our laws, it is import

BEFORE

ant to consider the nature and extent of what is proposed; especially is this the case, if the change will be far-reaching in influence. Therefore the Committee. have thought best, in proposing to prohibit all exclusion

1 Ante, Vol. VI. pp. 442, 502; Vol. VII. p. 152.

2 Post, Vol. IX. pp. 39–46.

of colored testimony in the courts of the United States, to exhibit with some particularity the considerations bearing on the subject.

EXCLUSION OF COLORED TESTIMONY RECOGNIZED BY

CONGRESS.

CONGRESS has never, in formal words, declared that witnesses in the courts of the United States shall be incompetent to testify on account of color. The abuse has arisen indirectly. But it is none the less fastened upon the national jurisprudence. By Act of July 16, 1862, it was provided "that the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at Common Law, in Equity, and Admiralty." And this rule, thus authoritatively declared, had been practically recognized by the courts of the United States from the beginning of the Government. It appears from the Judiciary Act of 1789, under which the national courts were organized, that jurors in these courts "shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens"; and still further, “that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at Common Law in the courts of the United States, in cases where they apply."2 Under these injunctions it was very easy, if not natural, for the national

Acts 37th Cong. 2d Sess., Ch. CLXXXIX. Sec. 1: Statutes at Large, Vol. XII. p. 588.

2 Acts 1st Cong., Ch. XX. Sec. 29, 34: Ibid., Vol. I. pp. 88, 92.

courts to adopt the law of evidence in the States where they were respectively held; and thus the incapacity of colored testimony in those States where it prevailed became a rule of evidence in the national tribunals.

It is plain that such a system made the administration of justice differ in different States. The same statute might be successfully administered in a State where there was no exclusion of colored testimony, and miserably fail in another State where such exclusion prevailed; and the same judge might be called in one court to admit the testimony, and in another court to reject it. But the least objection to this system is its want of uniformity. In lending the sanction of the United States, even indirectly, to an exclusion founded on color, all the people have been made parties to injustice.

To appreciate the true character of this proscription, we must repair to the Slave States, where it is declared, and consider it in the very language, legislative and judicial, by which it is maintained, not neglecting the eccentricities of judicial opinion by which it has been illustrated. From the statement of the rule its consequences will become apparent. It may be proper afterwards to glance at the associate examples of history, and also to endeavor to comprehend the reasons on which the proscription has been vindicated.

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."1 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." 2 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."8 With this exception, the free negro or mulatto is disqualified as a witness against a white person. But colored testimony is admissible in a case between colored persons, or against a colored person where the other party is white.5

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,

1 State v. Whitaker, 3 Harrington, R., 550.

2 Ch. 52, § 12.

3 Ch. 107, § 4.

4 Ch. 52, § 12.

Elliott v. Morgan, 3 Harrington, R., 317.

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.1 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.2

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. So, also, in an action against a stagecoach proprietor for aiding in the escape of a slave, the admission of the latter that he is slave of the plaintiff cannot be received.4 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

1 State v. Whitaker, 3 Harrington, R., 549.

2 State v. Cooper, Ibid., 571.

8 State v. Jeans, 4 Ibid., 570.

4 Redden v. Spruance et als., Ibid., 217.