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