Chapter I: Front Matter

Note: Project Gutenberg also has an HTML version of this
file which includes the original illustration.
See 48376-h.htm or 48376-h.zip:
(https://www.gutenberg.org/cache/epub/48376/pg48376-images.html)
or
(https://www.gutenberg.org/files/48376/48376-h.zip)

Images of the original pages are available through
Internet Archive. See
https://archive.org/details/completeworks11sumnuoft

Statesman Edition VOL. XI

CHARLES SUMNER

HIS COMPLETE WORKS

With Introduction by Hon. George Frisbie Hoar

Boston Lee and Shepard MCM

Copyright, 1873 and 1874, By Charles Sumner.

Copyright, 1900, By Lee and Shepard.

Statesman Edition. Limited to One Thousand Copies. of Which This Is No. 565

Norwood Press: Norwood, Mass., U.S.A.

CONTENTS OF VOLUME XI.

PAGE

EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR. Report in the
Senate, of the Committee on Slavery and Freedmen, February 29,
1864 1

THE MISSION TO BELGIUM. Speech in the Senate, on an Amendment
to the Consular and Diplomatic Appropriation Bill, March 15,
1864 43

CONSULAR PUPILS. Speech in the Senate, on an Amendment to the
Consular and Diplomatic Appropriation Bill, March 15, 1864 49

THE LATE HON. OWEN LOVEJOY, OF THE HOUSE OF REPRESENTATIVES.
Speech in the Senate, on the Resolutions upon his Death, March
29, 1864 54

COLORED SUFFRAGE IN THE TERRITORY OF MONTANA. Speeches in the
Senate, on an Amendment to the Bill for a Temporary Government
of that Territory, March 31 and May 19, 1864 62

CLAIMS ON FRANCE FOR SPOLIATIONS OF AMERICAN COMMERCE PRIOR
TO JULY 31, 1801. Report in the Senate, of the Committee on
Foreign Relations, April 4, 1864 70

NO PROPERTY IN MAN: UNIVERSAL EMANCIPATION WITHOUT
COMPENSATION. Speech in the Senate, on the Constitutional
Amendment abolishing Slavery throughout the United States,
April 8, 1864 173

CASTE AND PREJUDICE OF COLOR. Letter to the Young Men’s
Association of Albany, April 16, 1864 228

FINAL REPEAL OF ALL FUGITIVE SLAVE ACTS. Speech in the Senate,
on a Bill for this Purpose, April 19, 1864 229

THE NATIONAL BANKS AND THE CURRENCY. Speeches in the Senate, on
Amendments to the Bill providing a National Currency, April 27
and May 5, 1864 245

BRANCH MINTS AND COINAGE. Speech in the Senate, on the
Proposition to create a Branch Mint in Oregon, April 29, 1864 263

REFORM IN THE CIVIL SERVICE. Bill in the Senate, April 30, 1864 278

COLORED SUFFRAGE IN WASHINGTON. Remarks in the Senate, on Bills
to amend the City Charter, May 12, 26, 27, 28, 1864 284

VOTE OF BOTH HOUSES OF CONGRESS NECESSARY TO READMISSION OF
REBEL STATES. Resolution in the Senate, May 27, 1864 296

NO TAX ON BOOKS. Remarks in the Senate, on Amendment of the
Internal Revenue Bill, June 2 and 6, 1864 297

CREATION OF THE FREEDMEN’S BUREAU: A BRIDGE FROM SLAVERY TO
FREEDOM. Speeches in the Senate, on Bills and Conference
Reports creating a Bureau of Freedmen, June 8, 14, 15, 1864,
and February 13, 21, 22, 1865 301

MAKE HASTE SLOWLY: IRREVERSIBLE GUARANTIES. Speech in the
Senate, on the Recognition of Arkansas, June 13, 1864 351

MEANS FOR THE WAR THE TRUE OBJECT OF THE TARIFF. Remarks in the
Senate, on an Amendment to the Tariff Bill, June 16, 1864 376

NO TAX ON EDUCATION. Remarks in the Senate, on a Proposed Duty
on Philosophical Instruments for Colleges, June 17, 1864 378

ABOLITION OF THE COASTWISE SLAVE-TRADE. Speeches in the Senate,
on an Amendment to the Civil Appropriation Bill, June 24 and
25, 1864 380

OPENING OF THE UNITED STATES COURTS TO COLORED WITNESSES.
Speech in the Senate, on an Amendment to the Civil
Appropriation Bill, June 25, 1864 389

RECONSTRUCTION, AND ADOPTION OF PROCLAMATION OF EMANCIPATION BY
ACT OF CONGRESS. Remarks in the Senate, July 1, 1864 397

NATIONAL ACADEMY OF LITERATURE AND ART; ALSO OF MORAL AND
POLITICAL SCIENCES. Remarks in the Senate, on a Bill creating
these Two Academies, July 2, 1864 401

NO FINAL ADJOURNMENT OF CONGRESS WITHOUT INCREASED TAXATION.
Speech in the Senate, on the Resolution of Final Adjournment,
July 2, 1864 405

REJOICING IN THE DECLINE OF THE REBELLION. Remarks at a Public
Meeting in Faneuil Hall, September 6, 1864 414

REPUBLICAN PARTY AND DEMOCRATIC PARTY. Speech at a Public
Meeting at Faneuil Hall, to ratify the Republican Nominations
for President and Vice-President, September 28, 1864 418

SLAVERY AND THE REBELLION ONE AND INSEPARABLE: ISSUES OF THE
PRESIDENTIAL ELECTION. Speech before the New York Young Men’s
Republican Union, at Cooper Institute, November 5, 1864 433

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.

Before making a change in our laws, it is important 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 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.”[3] 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.”[4] Under these injunctions it was very easy, if not natural, for the national 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.”[5] 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.”[6] 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.”[7] With this exception, the free negro or mulatto is disqualified as a witness against a white person.[8] But colored testimony is admissible in a case between colored persons, or against a colored person where the other party is white.[9]

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, 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.[10] 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.[11]

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.[12] So, also, in an action against a stage-coach proprietor for aiding in the escape of a slave, the admission of the latter that he is slave of the plaintiff cannot be received.[13] 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 ground that “it would be idle [for the law] to recognize in persons of color the right to hold property, and to obtain redress in law and equity for injuries to person or property, if the means of this redress be denied them.”[14]

Prior to the statute originally passed in 1799, where a white person committed an assault on a colored woman, and there was no third person present, the latter was held as a witness;[15] but where several white persons were present, the colored person was held incompetent.[16]

(2.) In Maryland, the Act of 1717, Ch. 13, § 2, provides that “no negro or mulatto slave, free negro, or mulatto born of a white woman during his time of servitude by law, or any Indian slave, or free Indian natives of this or the neighboring provinces, be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any Christian white person is concerned.” Yet, nevertheless, according to this same Act, § 3, where other sufficient evidence is wanting against any negro, in such case the testimony of any negro may be heard and received in evidence, according to the discretion of the several courts of record or magistrate before whom such matter or thing against such negro shall depend, provided such testimony do not extend to depriving them of life or member.

The same system is pursued in the later Act of 1796, Ch. 67, § 5, which provides that manumitted slaves shall not be allowed “to give evidence against any white person,” nor be received “as competent evidence to manumit any slave petitioning for freedom.” But by Act of 1808, Ch. 81, § 1, it is provided, that, in all criminal prosecutions against any negro or mulatto, slave or free, the testimony of any negro or mulatto, slave or free, “may be received in evidence for or against them, any law now existing to the contrary notwithstanding.”

The original Act of 1717 does not in terms extend to free mulattoes, and the Act of 1796 does not extend to the issue of manumitted slaves. But where “a free-born white Christian man” was convicted of felony on the testimony of a mulatto born of a manumitted negro, there was among the judges in the Court of Appeals such diversity of opinion on the legality of the testimony that no decision was ever given.[17] In another case it was decided, that, where both parties are “free white Christian persons,” a free colored person is incompetent,[18] although a mulatto descended in the female line from a white woman is competent.[19]

(3.) In Virginia, the Code declares positively that “a negro or Indian shall be a competent witness in a case of the Commonwealth for or against a negro or Indian, or in a civil case to which only negroes or Indians are parties, _but not in any other case_.”[20] The decisions of the courts illustrate this proscription. Thus, it has been adjudged that a free colored person cannot testify for a white person, even against a colored person.[21] In another case a question was incidentally raised on the competency of a colored convict as a witness against another convict, with regard to an offence committed in the penitentiary, and it was suggested that convicts generally might be witnesses against each other.[22] This question, however, was subsequently disposed of by a provision declaring, that, on the prosecution of a convict, “all other convicts in the penitentiary shall be competent witnesses for or against the accused, _except that negroes shall not be allowed as witnesses against a white person_.”[23] They may, however, testify in his favor.

(4.) In Kentucky, the Revised Statutes provide that “a slave, negro, or Indian shall be a competent witness in a case of the Commonwealth for or against a slave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, _but in no other case_. This shall not be construed to exclude an Indian in other cases, who speaks the English language and understands the nature and obligation of an oath.”[24] Under this provision, as under that of Virginia, it has been decided that a free colored person cannot be a witness for a white person against a colored person.[25]

(5.) In North Carolina, the Revised Statutes provide that “all negroes, Indians, mulattoes, and all persons of mixed blood descended from negro and Indian ancestors to the fourth generation inclusive, (though one ancestor of each generation may have been a white person,) whether bond or free, shall be deemed and taken to be _incapable in law to be witnesses in any case whatsoever_, except against each other.”[26] Under this statute they cannot testify for each other in a criminal case. But the decisions furnish curious illustrations. Thus, when a colored person was convicted on colored testimony as a principal felon, it was subsequently held, on trial of the white accessory, that the record of the conviction was only _primâ facie_ evidence of guilt.[27] In another case it was held that a free colored woman could not make affidavit charging a white man as father of her illegitimate child,[28] although the contrary has been decided in Kentucky, on the assumption that the act is merely preliminary to the real controversy.[29]

(6.) In Tennessee, the Act of 1794, Ch. 1, § 32, provides that “all negroes, Indians, mulattoes, and all persons of mixed blood descended from negro and Indian ancestors to the third generation inclusive, (though one ancestor of each generation may have been a white person,) whether bond or free, shall be taken and deemed to be incapable in law to be witnesses in any case whatever, _except against each other_: _Provided_, That no person of mixed blood in any degree whatsoever, who has been liberated within twelve months previously, shall be admitted as a witness against a white person.” Under this Act, evidently borrowed from the earlier statute of North Carolina, it was decided that a colored person could not be a witness _for_ another colored person. The judge who pronounced the opinion of the court seems to confess the harshness of the rule, when he says: “The cases under this Act in which these disqualified persons can be witnesses for each other are when, plaintiff and defendant both being men of color, the witnesses may at the same time be said to be reciprocally witnesses against each of the parties. Perhaps the practice in Tennessee may have been heretofore much more liberal than the statute. With that we have nothing to do. As the law speaks, so it is our duty to speak.”[30] To remedy this gross injustice, the Act of 1839, Ch. 7, § 1, was passed, providing that such parties, “whether bond or free, shall be taken and deemed to be good witnesses for each other in all cases, where, by the provisions of said Act [viz. Act of 1794], they are made competent witnesses against each other in criminal prosecutions.”[31]

(7.) In South Carolina there appears to have been no statute expressly excluding the testimony of a slave against a white person, although the early Act of 1740, § 39, necessarily implies this exclusion.[32] But the rule was autochthonous. It sprang from the soil without statute. Judge O’Neall, in an Essay on the Slave Laws, declares that “a slave cannot testify, except as against another slave, free negro, mulatto, or mestizo, and that without oath.”[33] But the exclusion did not bear merely upon slaves. The judge announces that “free negroes, mulattoes, and mestizoes cannot be witnesses or jurors in the superior courts; … they cannot even be witnesses in inferior courts, with the single exception of a magistrate’s and freeholder’s court, trying slaves or free negroes, mulattoes or mestizoes, for criminal offences, and then without oath.”[34] It appears that the Act of 1740, §§ 13, 14, on which this custom was founded, applies only to free Indians and slaves;[35] so that, strictly, free negroes, mulattoes, and mestizoes are not despoiled of their right at Common Law to be heard under oath, but the uniform practice under the Act, according to the judge, has been otherwise.[36] On another occasion, another judge of South Carolina says: “There is no instance in which a negro has been permitted to give evidence, except in cases of absolute and indispensable necessity; nor, indeed, has this court ever recognized the propriety of admitting them in any case where the rights of white persons were concerned.”[37] In still another case it was decided that a free person of color is not competent in any case in a court of record, although both parties are of the same class with himself.[38]

The rule thus rigorously declared has given rise to some strange illustrations. Thus, for instance, in a suit to recover certain slaves as part of a gang named, evidence was admitted that other negroes of the defendant were accustomed to speak of those in question as belonging to the gang.[39] In another case, where the book of a tradesman was made up from the entries of a negro workman on a slate, and notice was affixed to the door of the shop that all credits there would be charged according to the negro’s entries, the Court doubted whether the book could be evidence at all,--but if at all, only as to the amount of work done, and then only against a person otherwise proved to be a customer.[40]

(8.) In Georgia, as in South Carolina, there is no statute expressly excluding the testimony of a slave where white persons are parties. But they are excluded. The Act of 1770, declaring slaves to be chattels personal to all intents and purposes whatsoever, provides further, “that the evidence of any free Indians, mulattoes, mestizoes, or negroes, or slaves, shall be allowed and admitted in all cases whatsoever for or against another slave accused of any crime or offence whatsoever, the weight of which evidence, being seriously considered and compared with all other circumstances attending the case, shall be left to the justices and jury.”[41] But where white persons are parties, the rule of exclusion seems implied. And the same exclusion seems also implied in the later Act of December 19, 1816, § 5, where the rule, that “any witness shall be sworn who believes in God and a future state of rewards and punishments,” is restricted to “the trial of a slave or free person of color.”[42]

(9.) In Alabama the exclusion stands on positive statute. The Code provides that “negroes, mulattoes, Indians, and all persons of mixed blood descended from negro or Indian ancestors to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, must not be witnesses in any cause, civil or criminal, except for or against each other.”[43]

(10.) In Mississippi, the Act of June 28, 1822, is nearly the same in language with the Code of Alabama on this subject.[44] But by Act of January 19, 1830, free Indians are placed on the same footing as white persons, and consequently can testify.[45]

(11.) In Florida the law is brief and explicit. The Act of November 21, 1828, § 16, provides that “any negro or mulatto, bond or free, shall be a good witness in the pleas of the State for or against negroes or mulattoes, bond or free, or in civil cases where free negroes or mulattoes shall alone be parties, and in no other cases whatever.”[46]

(12.) In Missouri, the Revised Statutes provide that “no negro or mulatto, bond or free, shall be a competent witness, except in pleas of the State against a negro or mulatto, bond or free, or in civil cases in which negroes or mulattoes alone are parties.”[47] But it has been decided, that, if a free negro is party to the record, even though he vouches in a white person to defend his title, colored testimony is admissible.[48]

(13.) In Arkansas, the Revised Statutes provide that “no negro or mulatto, bond or free, shall be a competent witness in any case, except in cases in which all the parties are negroes or mulattoes, or in which the State is plaintiff and a negro or mulatto, or negroes or mulattoes, are defendants.”[49]

(14.) In Louisiana, the Revised Statutes provide that “no slave shall be admitted as a witness, either in civil or criminal matters, for or against a white person”; and also, “no slave shall be admitted as a witness, either in civil or criminal matters, for or against a free person of color, except in case such free individual be charged with having raised, or attempted to raise, an insurrection among the slaves of this State, or adhering to them by giving them aid or comfort in any manner whatsoever.”[50]

The Civil Code declares “absolutely incapable of being witnesses to testaments” “women of what age soever,” and “slaves.”[51] But the Civil Code has provided expressly that “the circumstance of the witness being a free colored person is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility”;[52] so that a free colored person in Louisiana may be a witness for or against a white person, subject to inquiry as to the value of his testimony.

(15.) In Texas, the Act of May 13, 1846, provides that “all negroes and Indians, and all persons of mixed blood descended from negro ancestry to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable of being a witness in any case whatever, except for or against each other.”[53]

SUMMARY STATEMENT OF THE RULE.

From this review of the provisions in the different States it appears, that, with slight differences, there is nevertheless a prevailing resemblance, such as becomes the sisterhood of Slavery.

“Facies non omnibus una,
Nec diversa tamen; qualem decet esse sororum.”[54]

If the recital seems weary, it has not been superfluous, for it has disclosed the disgusting terms of that proscription. It is difficult to read the provisions in a single State without impatience; but the recurrence of this injustice, expressed with such particularity in no less than fifteen States,[55] makes impatience swell into indignation, especially when it is considered that in every State this injustice is adopted and enforced by the courts of the United States.

Slaves cannot testify in any of the States for or against a white person in any case, either civil or criminal,--unless, perhaps, in Maryland they may be allowed to testify against a white person who is not a Christian.

Free persons of color are also, like slaves, incompetent to testify for or against white persons, except in Delaware and Louisiana, where, under circumstances already stated, they may testify, even though a white person is a party.

It may be observed, also, that the statutes of Delaware, Virginia, Kentucky, South Carolina, Georgia, Florida, Missouri, Arkansas, Louisiana, and Texas do not expressly include Indian slaves; but probably only a few slaves are of pure Indian blood. Those of mixed Indian descent would undoubtedly be classed with mulattoes, and share their incapacity.

ECCENTRICITIES OF JUDICIAL DECISIONS.

The rule is seen also in judicial decisions, which may be classed among the eccentricities of jurisprudence. Subtilty is a common attribute of courts, but in these cases subtilty at times becomes fantastic. Reading them, we may well confess that truth is stranger than fiction.

Thus, although slaves are not permitted to testify, their conversation or declarations may, under certain circumstances, be admitted in evidence. For instance, according to a decision in Missouri, if a white person converses with a slave, the conversation, being otherwise admissible, may be proved by any other white person who heard it. In this case, Judge Scott said: “That negroes cannot testify against white persons is clear; but this rule cannot be carried so far as to exclude the conversation of a negro with a white person, when the conversation on the part of the negro is merely given in evidence as an inducement and in illustration of what was said by the white person. If the conversation of the negro had been proved by herself, then it would clearly have been illegal. Here the State proved by competent witnesses that certain remarks were made to the plaintiff in error in order to show what her reply was. It is a matter of indifference by whom they were made. All that was required was to prove by competent evidence that they were made. That they were made is a fact which may be proved like any other fact in the cause.”[56]

On the same principle, it has been decided that any remarks by a slave to a white person, calling for some reply on the part of the latter, may be proved by the testimony of white persons, in order to show the nature of that reply, or that none was made. The question arose on an indictment for enticing a slave, when Judge Goldthwaite said: “The question which the Court is called upon to determine is simply whether the admission of a white man to the truth of any statement made by a slave in his presence and hearing can be inferred from his silence. The rule in relation to evidence of this character, so far as we are able to deduce it from adjudged cases and the best elementary writers, is, that the statement must be heard and understood by the party affected by it, that the truth of the facts embraced in it must be within his knowledge, and that the statement must be made under such circumstances and by such persons as naturally to call for a reply. To reject the evidence in the case under consideration, solely on the ground that the party making the declaration was a slave, would be in effect to decide that under no conceivable circumstances could a statement made by a slave call for a response from a white man,--a proposition in direct opposition to our daily observation and experience. That the declaration was made by a person whose condition rendered him incompetent as a witness does not in the slightest degree affect the principle on which evidence of this character rests. If the declaration was made by a slave, and the party affected by it had made by his reply a direct admission of its truth, there could be no doubt of the admissibility of the statement and reply; and in cases of implied admissions, the admission, instead of being made by language, is made by the silence of the party.”[57]

There seems no end to the illustrations of this exclusion; as, for instance, when a colored woman acted as interpreter between a testator and the person who drafted the will. In this case, Judge Lumpkin said: “We hold, that, if a negro interpreter, incapable by law of being sworn, is the _only_ channel of communication between the testator and writer of the will, and there be no other evidence of the testator’s knowledge of its contents or his assent thereto than that which is derived through this medium, the will cannot be executed. But if the will be written in the presence of the testator, and, in a language which he understands, it is read over to him, and his dictation and approval of the instrument are interpreted by a negro in his hearing, and in the hearing of others interested in its contents, and he signifies no dissent thereto by signs or otherwise, but, on the contrary, is understood to express himself satisfied, the will may be established, especially if it appears to have been made in conformity to the previously declared intentions of the testator as to the disposition of his property.”[58]

It has been decided that the incapacity of a free colored person will not prevent him, even in a proceeding against a white person, from making an affidavit required to obtain a continuance, a new trial, absent testimony, or bail, or from swearing to a plea of _non est factum_. He may also bind a white person to keep the peace, or make affidavit for a writ of _Habeas Corpus_; and generally he may make such affidavits as may be necessary to commence a suit, or to procure such orders or steps to be taken therein as may be required to bring on a trial.[59] Without this capacity, he would, according to Chief Justice Robertson, of Kentucky, “be virtually disfranchised.” But the Chief Justice adds, that, when he is swearing to facts against a white man, to compel him to keep the peace, “he is not a witness, but a party swearing to what any other party may.”[60] And thus his incapacity as witness is still recognized.

In another class of cases, where it became necessary to show the mental condition or bodily health of the slave, his declarations have been held to be admissible, even in a suit against a white person; but they must be proved by white testimony. Thus, in an action for breach of covenant in not teaching a slave bound apprentice to the business of coach-making, the defendant having offered to prove, that, when he wished to instruct the slave, and threatened to punish him, if he did not apply himself, the latter, as soon as the defendant was out of the way, would declare “that he did [not] care about learning the trade, it was no profit to him, and if he could avoid the lash, it was all he cared for,”--it was held by that prominent magistrate, Mr. Justice Gaston, of North Carolina, that the declarations of the slave were admissible, “because his disposition and temper are subjects of investigation, and these cannot be ascertained but through the medium of such external signs.”[61] In another case the same question occurred under these circumstances: A slave was hired by his master to work in certain gold mines; but, while busy at the bottom of a shaft one hundred and eighty feet deep, he was struck on the head by an iron drill weighing five pounds, which fell from the top, and his skull was fractured so that trepanning became necessary, and “a large piece of the skull-bone was cut out.” In an action by the master for damages, Judge Pearson commented on this rule of evidence: “It being material to ascertain the bodily condition of the slave, his complaints of headache when exposed to the sun, and his declarations that he was unable to work in the sun or to endure hard labor are admissible.… The statute excluding the testimony of a slave or free person of color against a white man has no application. The distinction between natural evidence and personal evidence, or the testimony of witnesses, is clear and palpable. The actions, looks, and barking of a dog are admissible as natural evidence upon a question as to his madness. So the squealing and grunts or other expression of pain made by a hog are admissible upon a question as to the extent of an injury inflicted on him. This can in no sense be called the testimony of the dog or the hog. The only advantage of this natural evidence, when furnished by brutes, over the same kind of evidence, when furnished by human beings, whether white or black, is, that the latter, having intelligence, may possibly have a motive for dissimulation, whereas brutes have not; but the character of the evidence is the same, and the jury must pass upon its credit.”[62]

The same principle has been recognized in still another case, where the slave died of mortification in the bowels, and no physician was called in until the day before his death, although his illness had continued for three weeks. On this occasion Judge Green said: “The statement of a sick slave as to the seat of his pain, the nature, symptoms, and effects of his malady, is as well calculated to illustrate the character of his disease as would be the statements of any other person. They are, therefore, equally admissible for that purpose. But whether expressions indicating the nature and effects of a disease uttered by the sick person are real or feigned is for the jury to determine.”[63] And this principle has also been recognized in suits for breach of covenant in the warranty of a slave, or for fraud in the sale of a slave.[64] But if the master distinctly warrants the slave sound, he is not allowed to relieve himself of liability for this false warranty by declarations of the slave to the purchaser that he is diseased. A curious case occurred in Kentucky, which illustrates this principle, and also the brutality of Slavery. A poor slave woman was very ill, when her master formed “the intention of selling her, lest he should lose her value by death.” Notwithstanding her pitiable condition, he succeeded in disposing of her for two hundred dollars, one quarter in a note and the remainder in saddle-trees, on the representation that she was “hearty and sound, and fit for business.” Although the slave woman, before the sale, told the purchaser of her sickness, the Court annulled the sale, and directed the note and the price of the saddle-trees to be given up, saying: “The slave herself told the purchaser of her sickness before the sale; and after the sale, when informed by him that he had bought her, she stated she could not be of any use to him, as she was near death. When it is recollected that frequently, on such occasions, there is a strong indisposition in such creatures to be sold, and that by stratagem, to avoid a sale, they may frequently feign sickness, or magnify any particular complaint with which they are affected, the purchaser might well disbelieve her story, especially when the words of the master assured him to the contrary. For his own statements the master is responsible, and ought not to be permitted to release himself of responsibility for his own falsehoods by showing that the slave at the time so far corrected him as to tell the truth.”[65]

The principle underlying the admission of the declarations of a slave is plainly, but brutally, expressed by Judge Pearson, of North Carolina. We have already seen, that, according to this learned judge, who was for the time the voice of the law, the declarations of the slave are not to be regarded as his _testimony_, any more than the barking of a dog or the grunting of a hog “can be called the testimony of the dog or the hog.” The slave complains of his sickness in words, the dog moans, the hog squeals; but the law regards these expressions of suffering alike. They may be proved as facts by competent evidence; but the slave himself cannot testify what his complaints were, any more than the dog or the hog.[66]

Such are eccentricities of judicial opinion on this important question. They are not to be regarded merely as curiosities, for they are all adopted and enforced in the national courts; so that even the most brutal language becomes not merely the voice of the law, but the voice of the nation also.

CONSEQUENCES OF THIS EXCLUSION.

Thus do decisions of courts, as well as statutes, conspire to exhibit this rule in revolting features. If we glance for one moment at its consequences, there will be new occasion to condemn it.

Looking at it in a single aspect, consequences appear which baffle the imagination to picture. Throughout the States where this exclusion prevails, any white person may torture and maltreat a slave in any conceivable manner and to any extent, or he may overwork and starve him, or he may whip him to death, murder him in cold blood, or burn him alive; and so long as he is the only white person present, the laws afford him the most complete immunity from punishment, except in Delaware and Louisiana, where also he is safe, if only slaves are present. It is true that the same laws profess to punish the murder of a slave as a capital offence, and also to punish severely any mutilation or other cruel treatment of him. But such laws are nothing. So long as the slave himself is not allowed to testify, so long the laws will be justly obnoxious to the charge of actually authorizing a white person to inflict any outrage upon him, even to the extent of taking life with impunity. Every white person with only slaves about him, or, it may be, with only colored persons, slave or free, has _a letter of license_ to commit any outrage which passion or wickedness may prompt.

The exposed condition of slaves, on account of incapacity to testify, was recognized in the early legislation of South Carolina. The preamble to Section 39 of the Act of 1740 begins as follows: “And whereas, by reason of the extent and distance of plantations in this Province, the inhabitants are far removed from each other, _and many cruelties may be committed on slaves, because no white person may be present to give evidence of the same_.”[67] Thus, even out of the mouth of South Carolina, before this State had learned to sacrifice everything to Slavery, we learn that “many cruelties may be committed on slaves” under operation of this rule. But no such confession was needed. The truth is apparent to the most superficial observer. Had South Carolina, at that early day, followed the suggestion of her own statute, she would have begun a career of civilization under which Slavery itself must have disappeared.

The exposed condition of slaves on this account is curiously attested by other statutes of the Slave States, showing that plantations far removed from cities, and at considerable distance from each other, are committed to the direction of _a single white overseer_, who, from the circumstance that he is the only white person present, is placed beyond all restraint or correction. Thus, in South Carolina,[68] in Florida,[69] in Georgia,[70] and in Louisiana,[71] the statutes exact the continued residence of _one white person_ on every plantation, with a specified number of working slaves. These statutes had their origin in no sentiment of justice or humanity, but, as appears in early declarations, in a desire to prevent the harboring of fugitive slaves, who might find asylum among those exclusively of their own color. If, however, it was thought necessary for any purpose to require by penalties the continued residence of _even one white person_ on a slave plantation, it is reasonable to infer that there must be many plantations where there is only one white person. And to one white person thus situated, and thus removed from all check or observation, the law commits the government and guardianship of slaves on a plantation, and promises him in advance the most complete impunity for all that he does, even to the extent of cold-blooded murder, provided only that he is careful to let no white person see the deed.

This proscription is not confined to slaves. Free colored persons, under operation of this rule, are exposed to the same fearful wrongs. A white person may treat them as he treats a slave, and they are absolutely without remedy. It would be difficult to point out any law, the spawn of cruelty or tyranny, in ancient or modern times, exceeding in atrocity that by which a free population is thus despoiled of protection on account of color. It was one of the boasts of Magna Charta that justice should be denied to no person,--“_Nulli negabimus justitiam_”; but under this rule it is denied to a whole race.

Of course, the race, whether bond or free, which is thus despoiled, suffers. But this is not all. Justice itself also suffers. Crime, even against white persons in the presence of colored persons, must go unpunished.

And yet this proscription is adopted and enforced in the courts of the United States.

There are other aspects of this subject which invite attention. History has her lessons. Reason also speaks with a voice that must be heard. It becomes important, therefore, to consider this proscription, first, in its origin and the examples of history, and, secondly, in the grounds on which it is founded.

EXAMPLES OF HISTORY.

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.

The offensive rule seems to have found less acceptance in the possessions of other countries than with us. It has been inferred, after careful inquiry, that slaves in the Spanish and Portuguese settlements are not always incompetent as witnesses, while the _Code Noir_ of Louis the Fourteenth, amidst ungenerous prohibitions, allowed their evidence to be heard, “as a suggestion, or unauthenticated information, which might throw light on the evidence of other witnesses,” and afterwards, by later edict, sanctioned the testimony of slaves, “when white witnesses were wanting, except against their masters.”[93] But the rule is the natural complement of Slavery; and it cannot be disguised that it has prevailed, with corresponding degrees of force, wherever Slavery has been recognized. Its prevalence with us is only another illustration of the power of Slavery.

If you would find the country where slaves have been most completely despoiled of the right of testimony, you will not go to Greece or Rome, for in these classic lands the slaves were admitted to testify in certain cases; nor will you linger even in the Dark Ages, for there were then excepted cases; nor will you search English precedents, for the villein was incompetent only against his lord, and not always against him; nor will you look to the colonies of Spain, Portugal, or France, for in all of these the cruel rule was mitigated; but you will turn to those States of our Republic where the slave is not permitted to testify against his master or any other white person, and where even free colored persons, having no master, are smitten with the same incapacity to testify against any white person.

GROUNDS FOR THIS INJUSTICE.

From examples of history the way is easy to an inquiry into the grounds on which this proscription is founded.

The true reason may be traced to the unhappy prejudices engendered by Slavery, and to the policy of sustaining this wrong. Indeed, it is hardly less essential to Slavery than the lash itself. An early statute of Virginia places the rule on the ground that none but Christians should be witnesses, and even among these “Popish recusants convict” were inadmissible.[94] But it is generally vindicated by dwelling on _the degraded condition of the slave, and the interest he may have to conceal or deny the truth_.[95] A careful examination will show that this apology is baseless as Slavery itself.

Of course, if a witness is too degraded to feel the sanction of an oath, his testimony should not be received. Such is the unquestionable suggestion of reason; nor can it make any difference that the witness is white or black. But the slave is not necessarily and universally so degraded as to merit exclusion, nor is his interest to conceal or deny the truth different materially from that of other persons,--although it is undoubtedly true, that, under the instinct of self-defence, and against the exactions of Slavery, he learns to deceive. But in every State except South Carolina _the oath of the slave is received against colored persons_, which could not be done, if he could not be trusted under oath. A judge of South Carolina has vindicated the capacity of the slave in this respect, and thus unintentionally repelled the rule of exclusion. “Negroes, slaves or free,” says Judge O’Neall, “will feel the sanction of an oath with as much force as any of the ignorant classes of white people in a Christian country. They ought, too, to be made to know, if they testify falsely, they are to be punished for it by human laws. The course pursued on the trial of negroes, in the abduction and obtaining testimony, leads to none of the certainties of truth. Falsehood is often the result, and innocence is thus often sacrificed on the shrine of prejudice.”[96] But this learned judge of South Carolina is not alone in vindicating the propriety of examining the slave on oath. Judge Clayton, of the High Court of Errors and Appeals in Mississippi, in delivering the opinion of the Court, thus expressed himself: “It is also objected, that there ought, in the case of slaves, to be some evidence of a sense of religious accountability, upon which the validity of all testimony rests, and that the same presumption of such religious belief cannot be indulged in reference to them as in regard to white persons. As to the latter, it is said the presumption is in favor of their proper religious culture and belief in revelation and a future state of rewards and punishments; as to slaves, it is contended the presumption does not arise, because of a defect of religious education. It is true, that, if the declarant had no sense of future responsibility, his declarations would not be admissible. But the absence of such belief must be shown. The simple elementary truths of Christianity, the immortality of the soul and a future accountability, are generally received and believed by this portion of our population. From the pulpit many, perhaps all, who attain maturity, hear these doctrines announced and enforced, and embrace them as articles of faith.”[97]

But if slaves generally have a sufficient amount of religious belief to supply the sanction of an oath, it is clear that they are not so degraded as to justify their exclusion as sworn witnesses. And the Slave States, while excluding them, have practically recognized their fitness. Not only is the oath of a slave received in all the Slave States except South Carolina, but he is liable to punishment for perjury,[98] and sometimes the punishment inflicted is diabolic. In Virginia,[99] and also in Maryland,[100] the punishment formerly was “cropping.” In Florida, the statute appoints that the offender “shall have his or her ears nailed to posts, and there to stand for one hour, and, moreover, receive thirty-nine lashes on his or _her bare back_.”[101] In Mississippi, if a colored person is found to have given false testimony, he is “to have one ear nailed to the pillory, and there to stand for the space of one hour, and then the said ear to be cut off, and thereafter the other ear nailed in like manner, and cut off at the expiration of one other hour; and, moreover, to receive thirty-nine lashes on his or _her bare back_, well laid on, at the public whipping-post, or such other punishment as the court shall think proper, not extending to life or limb.”[102] But every recognition of the oath of a slave on any occasion, and especially every punishment of a slave for perjury, testifies to his capacity as a witness. The barbarism of the punishment testifies also against Slavery. It is vain to say that a slave is incompetent, when, in certain cases, he is already accepted as witness, and visited with fiendish punishment, if he violates his oath.

The absurdity of this pretension is illustrated by a provision in the statutes of Kentucky, by which a slave in the penitentiary may be a competent witness against a white convict.[103] Such was early the law of Virginia, and even now he is competent for the white convict. Thus, so long as a slave commits no crime, his oath is not received in court to affect a white person even with the smallest pecuniary liability; but let him be sent to the penitentiary as a convict for crime, and forthwith his capacity as a witness is enlarged, and on his testimony a white convict may be deprived of life! But, obviously, the commission of a crime carrying with it the doom of the penitentiary must impair rather than increase confidence in the veracity of the criminal. Such is the absurd inconsistency in the application of this rule.

Although the rule may be properly traced to Slavery, of which it is an important ally, yet, from considerations already presented, it seems to follow that it is founded on a reason broader than Slavery, suggested, however, by Slavery. According to the logic of these considerations, the disqualification of the slave as a witness against white persons is not founded on the fact that he is a slave, because the disqualification, except in Delaware and Louisiana, attaches also to free colored persons; nor is it founded on want of that religious belief required in a sworn witness, nor on any actual disregard of his testimony under oath, because the slave in certain cases is sworn, and his testimony under oath is accepted in the administration of justice, and he is punished for perjury; but it is simply, in the last analysis, _an incapacity attached by law to persons of color_. Indeed, the obvious inference from the remarks of Judge O’Neall[104] is, that, in his opinion, it is not slavery, but color, which is the ground of exclusion. But the Committee have already shown the pernicious consequences of such proscription, and especially that the disfranchisement of the African race operates as a liberty to all white persons, not excepting, in most of the States, even white convicts, to do as they please, and commit any crime in the Decalogue, “unwhipped of justice,” if nobody but a colored person is present. It needs no argument to establish the unreasonableness of a disqualification which, according to the confession of its advocates, attaches to the shading of the human skin, especially in view of the fearful cruelty that is its natural consequence.

In Delaware and Louisiana the disqualification rests on the fact of Slavery. In many other States the free colored persons are so few in number that the fact of Slavery seems still to overshadow the whole race. Assuming, then, that the disqualification is traced not merely to the shading of the skin, but to the fact of Slavery, it is none the less to be rejected, not only as part of Slavery, but as essentially irrational and inhuman.

The slave feels the sanction of an oath hardly less than many white persons of inferior condition. On grounds of reason, therefore, and independently of prejudice, the two classes at the outset would be entitled to an equal degree of confidence,--modified, of course, and decreasing, as there was a manifest interest or temptation to testify falsely. But the slave is exposed to such corrupting power less than a white person. He can have no pecuniary interest, since he has no right of property. And, except where his master is a party or otherwise interested, he must be alike without hope of gain or fear of punishment to make him swerve from the truth. Accordingly, in all cases where his master stands indifferent, the reason for excluding the slave is not so strong as for excluding white persons of inferior condition, since the slave may feel the sanction of an oath as much as they, while he is less exposed to any disturbing influence. Such, certainly, is the conclusion justified by the facts.

The dependence of the slave upon his master must naturally subject him peculiarly to his influence, whether from hope of reward or fear of punishment; so that his testimony in favor of his master would always be viewed with suspicion. If, contrary to this active interest, the slave testifies _against_ his master, his testimony would seem to be worthy of peculiar consideration. But even where he testifies _for_ his master, there can be no more reason for excluding his testimony than for excluding that of a child for a father or a mother, or of excluding that of a father or a mother for a child. Unquestionably, in each of these cases the bias is stronger than any that can exist on the part of a slave, as love is stronger than fear. Therefore there is no valid reason why a slave should not be permitted to testify _for_ or _against_ his master. The same considerations which determine the value of other testimony will suffice with regard to him; and thus, in every respect, the rule of exclusion becomes irrational and arbitrary.

But this rule, whether applicable to slaves or free colored persons, is still more irrational and unwarranted when it is considered that the testimony is submitted to the scrutiny of a jury of white persons, under the watchful observation of a court of white persons likewise, and that it can have no effect whatever except through assent of their judgment. The motive which actuates the slave, whatever it may be, whether revenge or interest or fear, must be open to discovery. It is therefore preposterous to argue that any white person, at any time or anywhere, especially in a Slave State, can be prejudiced by colored testimony, or that he can be convicted by a white jury under the eye of a white court, unless that testimony is strictly worthy of belief. The rule of exclusion is not only an expression of tyranny and prejudice, but an insult to the understanding, and even to common sense.

If this rule were only irrational and eccentric, it might be pardoned to immeasurable madness, and handed over to the derision of mankind. But even its absurdity disappears in its appalling injustice. Two things are obvious to the most superficial observation: first, that under its influence the slave is left absolutely without legal protection of any kind, the victim of lawless outrage; and, secondly, that even crimes against white persons may escape unpunished: so that in these two important cases justice must fail. But this failure of justice becomes intolerable, when it is considered that it is not from accident or temporary weakness, but that it is absolutely organized by law. Nor is it confined to slaves. It embraces in its ban free colored persons also, without regard to intelligence, property, or relations in life.