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THE

African Observer.

NINTH MONTH, 1827.

NEGRO SLAVERY.

(Continued from page 138.)

The slave is not admitted as a witness in any cause, either civil or criminal, where a white person is the defendant.

This incident appears as an axiom in the slaveholding systems of the British West Indies. The exclusion of servile testimony does not appear in the form of legislative enactments, but of established and general usage. The legislatures speak of the inadmissibility of servile testimony, as too obvious to require demonstration, and as constituting a part of the system in every age and country.* They talk of the fatal consequences which would ensue from its admission, not as reasons for the adoption of efficient substitutes, but as excuses for the nonexecution of the laws enacted for the benefit of the slaves. The evils resulting from this rigid extension of the Roman law, are admitted and deplored by those who seem not to have dreamed that the evils might possibly be re

This is the style of the Grenada legislature.

VOL. I.-21

|| moved, by the annihilation of the rule from which they were acknowledged to flow. Bryan Edwards observes, "the great, and I fear, incurable de||fect in the system of slavery is, that the evidence of the slave cannot be admitted against a white person, even in cases of the most atrocious injury. This is an evil, to which, on several accounts, I fear, no direct and efficacious remedy can be applied." The learned historian then proceeds to record some of the expedients which have been devised, and which, he says, it may be hoped, will, in most cases, have the good consequence of a solid protection. I can, however, so far agree with the opinion first expressed, as to admit that these expedients, at least furnish neither a direct nor an ef ficacious remedy. The reason or the origin of the rule is not to be found in the West Indian codes. The author to whose labours I am so largely indebted, attributes it to the buccaneers, who were too illiterate and too regardless of legislative theories, to wander far in search of precedents to justify

the course which their policy or prejudices suggested.*

But the insular legislatures, at least in several of the colonies, improving upon the barbarity of the buccaneers, have extended, by special enactments, this harsh rule of law, to the descendants of slaves; or rather, to persons of African extraction, how long soever they and their ancestors may have || been free. At the same time, the testimony of coloured persons is admitted against those of African extraction, without regard to the condition of either witness or defendant.

In the United States, the testimony of slaves is excluded from courts of law, when white persons are the defendants, either by special laws or by usages which have acquired the force of law, in all the states where slavery is tolerated. The exclusion of negro testimony, on account of colour alone, though common to most of the southern states, is nearly peculiar to them.

In New Jersey, slaves are not admitted as witnesses, except in criminal cases; in which, their testimony may be received for or against each other.† In Pennsylvania, the crimes of negroes and mulattoes, whether slaves or freemen, are tried and adjudged as those of other inhabitants of the state, except that a slave is not admitted to bear witness against a freeman.+ Thus far the condition, not the complexion, determines the competency of the witness. But in Delaware we find the colour, as well as the condition, a matter of importance. When it shall appear to the court that no competent white person was present, free blacks and mulattoes may be per

* Stephen, 108.

Laws of Jersey, 1798.
Law of 1780.

mitted to give evidence in criminal cases.* In Maryland, no negro or mulatto slave, free negro or mulatto born of a white woman, during his servitude by law,† is admitted to be a competent witness in any case wherein a christian white person is concerned; yet when other sufficient evidence is wanting, against a negro or mulatto slave, free negro, or mulatto born of a white woman, during his servitude by law, the testimony of this class of witnesses, may be heard, and if supported by other pregnant circumstances, may lead to conviction.‡

In Virginia and Kentucky, no negro or mulatto, bond or free, is a competent witness, except in pleas of the crown against negroes or mulattoes, bond or free, or in civil cases, where negroes or mulattoes alone are concerned.§ The legislature of Missouri has copied this provision almost verbatim. In these states every person having one-fourth negro blood, is declared by law a mulatto. In North Carolina, all negroes, Indians, mulattoes, and persons of mixed blood, descended from negro or Indian ancestors, to the fourth generation inclusive, (though one ancestor of each generation may have been white,) whether

*Laws of Delaware.

† A law passed in 1663, directed that all the issue of English, or other free born women, that had married negroes, should serve the master of their parents till they were 30 years of age. This law was repealed in 1681, but in 1715, it was enacted, that all mulatto children, born of white women, should be servants till 31 years of age. Harris and M'Henry's Reports, Vol. 1. Butler v. Boarman, and Kilty's Laws of Md. 1715.

Laws of Maryland, 1717, 1751. § Revised Code, 1819, Kentucky Laws, p. 1150.

Laws of Missouri, p. 600.

bond or free, are declared incapable in law of being witnesses, except against each other.* But the testimony of one negro or person of colour, is not sufficient to convict another of a capital offence, unless corroborated by other pregnant circumstances.†

Where so little credit is accorded to 'the testimony of the coloured race, we might suppose that deviations from the truth, would be regarded, in them, as very trivial offences. Whatever difference may exist, in a moral view, between perjury and simple falsehood, we readily perceive, that the former can be justly punished as a greater crime, than the latter, only on the supposition that more credit is allowed to an oath than to a simple declaration. Where no credit is given to an assertion, society can be little injured by falsehood. The more society is liable to be injured by false declarations, the more rigidly must attention to veracity be enforced. To allow none but the lowest degree of credit to the utterance of truth, and yet to punish its infraction with rigour, appears incompatible with just and liberal legislation. The legislatures of several of the states have, however, thought proper to visit the utterance of false testimony, by sable witnesses, with a very cruel and tremendous punishment. Any negro or mulatto, bond or free, upon due proof made, or pregnant circumstances appearing before a county court, being found to have given false testimony, is liable, without further trial, to have one ear nailed to the pillory for one hour, at the end of which time, that ear to be cut off; the other

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ear to be then nailed, in like manner, for an hour, and cut off; and to suffer thirty-nine lashes on the bare back,well (that is, severely) laid on, at the public whipping post.* This excessive severity in the punishment of those who are adjudged guilty of bearing false witness against their sable brethren, for against them only could they commit such an offence, may be supposed to indicate extraordinary care to preserve the coloured race from suffering by unjust convictions; but it unfortunately happens that negroes and mulattoes are the only victims of this legislative anxiety. Those who are the least competent to inflict an injury by the utterance of falsehood, are the most severely tortured for the attempt.

I am not prepared to determine whether these tremendous punishments are ever inflicted as prescribed by law; and therefore, hope they rarely or never are; yet the laws do not appear merely among the dust of antiquated and forgotten statutes, but are found in the recent publications. The Revised Code of Virginia, and the Manual of Haywood, were published in 1819, and the edition of the Laws of Maryland in 1799. In Kentucky, a slave convicted of giving false testimony, is punishable with thirty-nine lashes;† and in Georgia, the crime is visited with the punishment brought by such testimony on the accused. +

In South Carolina and Georgia, the

* Haywood's Manual of the Laws of North Carolina, p. 523. Revised Code of Virginia, p. 431. Kilty's Laws of Maryland, 1751. In the last of these states, the punishment is a little varied but not mitigated. † Laws of Kentucky, p. 1154. Prince's Digest, p. 448.

testimony of slaves and free coloured
persons would appear to have been
excluded by usage; for I find the ne-
cessity of bringing the crimes of slaves
and free coloured persons to light,
advanced as a reason, or perhaps, an
apology for admitting the testimony
of slaves. In the former state it is pro-
vided, that the evidence of any slave,
without oath, shall be admitted, in all
cases whatever, for or against another
slave accused of a crime; as,likewise
against any free negro, mulatto, or
mustizo; which evidence, being seri-
ously weighed and compared with
other circumstances attending the
case, shall be left to the consciences
of the justices and freeholders.* By
a previous law of the state, no person
can be admitted as a witness in behalf ||
of a person accused of treason or fe-
lony, without having taken the usual
oath to state the truth, &c. Hence
it appears, that according to law, a
slave may give his testimony, for or
against a slave, and against, but not
for a free coloured person, without
oath. In Georgia, any person who be-
lieves in a God and future state of re-
wards and punishments, is a compe-
tent witness in the trial of slaves or
free persons of colour.+

In South Carolina, we find the evils resulting from the exclusion of servile testimony fully recognized, but the expedient resorted to for redress strangely defective. "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, unless some method be

* Brevard, Vol. 2, p. 232.
† Ibid, 337. + Prince, 461.

provided for the better discovery of such offence; and as slaves are under the government, so they ought to be under the protection of masters and managers of plantations. Be it enacted, that if any slave shall suffer in life, limb, or member, or shall be maimed, beaten or abused, contrary to the directions and true intent and meaning of this act, when no white person shall be present, or being present, shall neglect or refuse to give evidence or be examined on oath, concerning the same; in every such case the owner or other person who shall have the care or government of such slave, and in whose possession and power such slave shall be, shall be deemed, taken, reputed, and adjudged to be guilty of such offence; and shall be proceeded against accordingly, without further proof, unless such owner or other person shall make the contrary appear, by good and sufficient evidence, or shall by his own oath, clear and exculpate himself; which oath, every court where such offence shall be tried, is hereby empowered to administer, and acquit the offender, if clear proof of the offence be not made, by two witnesses at least." "This law has been imitated in Louisiana.

From the foregoing preamble it appears, that the testimony of free coloured persons, as well as that of slaves, is deemed inadmissible in South Carolina, and therefore, the evils of this practice must be applicable to them as well as the slaves, with this addition, that the protection, such as it is, accorded by the law, does not reach them. For the law we observe, applies only to slaves.

• Brevard, Vol. 2, p. 242.

It is difficult to believe, that a legislative assembly would gravely enact a law which they did not intend should ever be executed; yet what must we think of the understandings of men who would expect that the hand of cruelty could ever be restrained by such cobweb meshes as these.*

Let us view the law a little more closely. In the first place, the offence must become known, and a suit be instituted against the supposed offender, where no white person, or in other words, no competent witness was privy to the offence. But how is this to be done, if the offender has the government of the person injured, and of his fellow slaves? Can a suit be commenced until probable evidence shall be obtained of the reality of the

* Since the slave codes of the British sugar islands have obtained the serious attention of the parent government, various laws have been passed by the insular governments, ostensibly designed to meliorate the condition of the slaves, which, however inadequate to the object professed, may be explained without impeachment of the sagacity, whatever may be said of the integrity, of the legislators. The interference of parliament may, perhaps, be prevented by an appearance, on the part of the local government, of a disposition to redress such evils as admit of remedy. This explanation, however, cannot apply to South Carolina or Louisiana.

It is worthy of remark, that on large plantations where the slaves are entrusted chiefly to overseers, the owners do not always know their own slaves: and, therefore, an owner prosecuting an overseer for the murder or mutilation of his slave, may be unable to fix with certainty, upon the person accused, the charge of having had the government of the injured slave, unless he can be allowed to call to his aid the local knowledge of his other slaves.

offence? But supposing a slave to have been barbarously mutilated, by a brutal owner or overseer, in the presence of a number of slaves or free coloured persons; and that some humane individual, becoming acquainted with the fact, institutes a suit, and brings the mutilated slave before the court; it may be very difficult in a sparsely peopled district, "where the plantations are far removed from each other," to prove, unless the testimony of his fellow slaves is admitted, that the slave in question was actually under the government of the defendant. Imagining, however, that this difficulty has been surmounted, and the reality of the offence, as well as the individual under whose government it was committed, clearly proved, then to evade the law, an unprincipled master has only to swallow a false oath, and all is over. This being once done, a single witness, however competent and respectable, cannot convict him. Yet in general, a jury may convict an indicted person on the evidence of one witness, provided the testimony is sufficiently consistent and credible to satisfy them of its truth. Here then the courts are authorised, or rather required, to allow, to the most dubious of all testimony, a greater weight than to a witness of unexceptionable cha

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