CONCLUSION.

To all this there is one simple answer, and Congress must make it.

A clause of the Constitution, contrary to all commanding rules of jurisprudence, has been interpreted to sanction the hunting of slaves; and the same clause, thus interpreted, has been declared, contrary to all testimony of history, to have been an original compromise of the Constitution and a corner-stone of the Union. On this clause, thus misinterpreted and thus misrepresented, an Act of Congress is founded, which, even assuming that the clause is strictly applicable to fugitive slaves, is many times unconstitutional, but especially in three several particulars: (1.) as a usurpation by Congress of powers not granted by the Constitution; (2.) as a denial of trial by jury in a case of personal liberty and a suit at Common Law; and (3.) as a concession of the case of personal liberty to the unaided judgment of a single petty magistrate, without any oath of office, constituting no part of the judicial power, -appointed, not by the President with the consent of the Senate, but by the court, holding office, not during good behavior, but merely during the will of the court,- and receiving, not a regular salary, but fees according to each individual case. But even if this Act were strictly constitutional in all respects, yet, regarding it in its painful consequences and in its Rebel authors, it is none the less offensive; for from the beginning it was a scourge to the African race and a grievance to the whole country, a scandal abroad and a dead-weight upon the Union at home, while it was the arch contrivance of men who at the time were rebel at heart and are now in open

rebellion, devised as an insult to the Free States and as a badge of subjugation. Such a statute, thus utterly unconstitutional in every respect, and utterly mischievous in all its consequences and influences, while peculiarly obnoxious in its well-known authors, ought to be repealed without delay. If possible to parliamentary usage, it ought to be torn from the volumes of the law, so that there should be no record of such an abuse and such a shame.

Unhappily, the statute must always remain in the pages of our history. But every day of delay in its repeal is hurtful to the national cause and to the national name. Would you put down the Rebellion ? Would you uphold our fame abroad? Would you save the Constitution from outrage? Would you extinguish Slavery? Above all, would you follow the Constitution and establish justice? Then repeal the statute

at once.

EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR.

REPORT, IN THE SENATE, OF THE COMMITTEE ON SLAVERY AND FREEDMEN, FEBRUARY 29, 1864.

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

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

EFORE making a change in our laws, it is import

BE

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

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

2 Post, Vol. IX. pp. 39–46.

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

EXCLUSION OF COLORED TESTIMONY RECOGNIZED BY

CONGRESS.

CONGRESS has never, in formal words, declared that witnesses in the courts of the United States shall be incompetent to testify on account of color. The abuse has arisen indirectly. But it is none the less fastened upon the national jurisprudence. By Act of July 16, 1862, it was provided "that the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at Common Law, in Equity, and Admiralty."1 And this rule, thus authoritatively declared, had been practically recognized by the courts of the United States from the beginning of the Government. It appears from the Judiciary Act of 1789, under which the national courts were organized, that jurors in these courts "shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens"; and still further, "that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at Common Law in the courts of the United States, in cases where they apply."2 Under these injunctions it was very easy, if not natural, for the national.

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

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

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

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

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

EXCLUSION OF COLORED TESTIMONY IN THE SLAVE

STATES.

THE Committee begin with the statutes of the States where this proscription prevails. Each State will be considered by itself.