tag="{http://www.w3.org/1999/xhtml}a">[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.