Excerpted From: Eric Eisner, Free Black Witnesses in the Antebellum Upper South, 42 Law and History Review 297 (May, 2024) (141 Footnotes) (Full Document)

EricEisnerSlavery permeated Southern life and law, as racial hierarchies pervasively shaped society. Southern judges and legislators crafted numerous doctrines to maintain slavery. Enslaved people were legally property. As a general rule, they could not sue and be sued, they could not contract, and they could not testify against whites in court. In this context, it would be natural to assume that free Black Southerners would likewise be categorically barred from providing testimony in cases involving whites--and several historians have assumed so. *298 While every slave state except Louisiana limited free Black testimony in cases involving white litigants, and most barred it completely, several jurisdictions where slavery was legal, including three in the Upper South--Delaware, Maryland, and D.C.--allowed at least some free Black testimony in cases involving whites at least some of the time. Why would a slave state ever allow a free Black witness to testify in a case involving whites?

The competing forces at play in deciding whether to admit free Black witness testimony in cases involving white litigants reflect disagreement among the white elites. Creating pressure to include free Black testimony was the centuries-long doctrinal shift that George Fisher has called the rise of the jury as lie-detector. English common law evidentiary rules in the mid-sixteenth century were highly restrictive, but increasing faith in the powers of lawyer-conducted cross examination and the jury's ability to assess credibility led to the gradual decline of restrictions on who could testify over the following centuries. In states with large free Black populations, their blanket exclusion from cases with white litigants limited the relevant evidence that juries could hear, impeding the truth-seeking function of trials. Working against these pressures--successfully in most slave states before the Civil War--was the white elite's desire to maintain the racial hierarchy. Excluding free Black witnesses from testifying was a potent tool of white supremacy.

One cause of the gradual loosening of witness competency rules from seventeenth-century England to the Reconstruction South is the discrepancy between public knowledge (what people in the community know) and legal verdicts (what the court decides) that excluding testimony could produce. Truth-seeking human institutions, like the jury, are not the only source of legitimacy for a trial verdict. Trial by ordeal, trial by combat, and oaths called upon divine authority. But courts have usually made some appeal to the rational effort to uncover truth, and it does not take any sophisticated theory to think that refusing to hear witnesses who saw the crime might obstruct the effort to get to the bottom of what really happened. Noting that the English common law once prevented the defense from presenting sworn witnesses at all, Fisher remarks, “[L]ong before Bentham and long before the Enlightenment or the Scientific Revolution, ordinary people must have shaken their heads in wonderment at a system designed to find truth that permitted only one party to the cause to present any sworn evidence at all.”

Similarly, it was incongruous when white community members knew that disinterested third parties had witnessed a crime, but their testimony could not be admitted in court because of their race. Often, this exclusion benefitted  whites. Other times, it did not. In states with large Black populations, the restrictions on Black witnesses prevented a considerable amount of testimony from being admitted in court. Restrictions on Black testimony may have reinforced a white supremacist system that white Southerners wanted to protect, but these restrictions on Black testimony could also inconvenience the slave-owner. For example, when enslaved people gambled with poor whites, the state often struggled to convict the white gamblers for lack of competent witnesses. Some slave states even relaxed prohibitions of enslaved testimony against whites in cases where white defendants were accused of committing interracial crimes. The same forces that propelled the centuries-long decline of witness competency rules--the increasing confidence in the jury's ability to determine credibility and the decreasing willingness to tolerate the delegitimizing effect of keeping credible testimony out of the courtroom--also illuminate the considerably more marginal phenomenon of free Black witnesses in the slave South. Barring a witness from testifying could produce glaring conflicts with a trial's ostensible purpose of determining the truth.

Previous scholarship on Black testimony in the South has mostly focused on the relatively swift end of race-based witness competency rules in the wake of the Civil War. After the Civil War, as the federal government forced Southern states to allow Black testimony, white supremacists acted quickly to avoid the unpalatable circumstance of Black witnesses testifying as white parties in interest listened in silence. Southern states soon changed their witness competency rules--though they took longer than the North to allow criminal defendants to testify. Cases in Delaware, Maryland, and D.C., however, demonstrate that the tensions created by the exclusion of free Black testimony long preceded the Civil War.

Historical investigations of the relationship between slavery, Black communities, and the law have examined how slavery and the presence of enslaved and free Black populations shaped Southern law. Historians have also uncovered the claims making of Black communities. Enslaved people made claims to property ownership and developed complex informal economies in the absence of any formal legal recognition of their right to do so. Free Black communities also made creative use of the law to assert their rights and citizenship. Black litigants brought suits in Southern courts to protect their property *300 rights, sometimes winning cases against white defendants. In freedom suits, enslaved people often relied on white witnesses, but some states allowed enslaved people to sign their “X” on an affidavit. Southern juries often decided questions of racial identity, incorporating complex local judgments about race. As Ariela Gross cautions, “[L]aw as it is actually experienced is created by a variety of lawmakers: not only by judges and legislators, but by the litigants, witnesses, and jurors in the courtroom.”

While information supplied by Black witnesses surely made its way into Southern courts through both informal and formal means even in the absence of a Black witness in the witness stand, the evidence that follows centers on the formal admission of free Black witnesses in court, reflecting doctrinal developments rather than practical concessions or workarounds. The official acceptance of Black testimony in cases involving white litigants demonstrates that the consideration of free Black testimony in the South did not arise only out of ad hoc attempts to resolve particular problems; rather, certain white elites in the Upper South believed that free Black witnesses, in at least some cases involving whites, should have the right to testify.

Given the pervasive nature of racial hierarchy in Southern society, these judges and lawmakers either must have thought that this limited acceptance of free Black testimony would further, rather than subvert, the racial order, or, if they saw a potential threat to white supremacy in admitting free Black testimony, they must have valued some other principle highly enough to accept this tension. Kimberly Welch argues that free Blacks were sometimes able to bring--and win--court cases in the South because the slave-owning elite valued the rights of property more than the privileges of whiteness, and when the two values came into conflict--when, for example, a free Black creditor sued a white borrower to recover a debt--Southern courts chose to uphold property and the rights of the creditor over the status privilege of the white Southerner. In most cases, property worked hand in glove with racial hierarchy to maintain slavery and protect the rights of the slaveholding class, so the slave-owning elite was willing to make the occasional concession to the Black litigant to maintain the conceptual coherence of the legal system. This hypothesis, however well it explains the phenomenon of Black litigants in the slave South, cannot explain the full extent of the much more *301 marginal circumstance of the free Black witness. Allowing free Black witnesses to testify against white defendants in criminal cases bears no obvious connection to the rights of property. The puzzle remains: why did a line of cases in the Upper South allow free Black testimony in cases involving whites while the bulk of the South did not embrace this expansion of witness eligibility until Reconstruction?

Historians and legal scholars have not attempted to explain why free Black witnesses testified in cases involving white litigants in the antebellum Upper South in large part, perhaps, because the existence of free Black testimony in the slave South outside of Louisiana has mostly been overlooked. Welch characteristically writes, “Every southern state except Louisiana denied free blacks the ability to testify in court in cases involving whites.” Louisiana, indeed, was the only place in the South that categorically allowed free Black witnesses to testify in cases involving whites, but Louisiana is better seen as the far end of a spectrum than as a lone outlier.

Some historians, in an echo of the Tanenbaum thesis, explain the difference between Louisiana and the other slave states as a result of Louisiana's inheritance of Roman law. According to the original Tanenbaum thesis, Iberian America (and to a lesser extent, French America) had laws that--in contrast to English and Dutch America--treated enslaved people as people. Defenders of Louisiana exceptionalism, in a similar vein, argue that “free colored people in antebellum Louisiana” possessed “uncommon legal rights and privileges,” including, “perhaps most important, [to] sue and testify in court against whites.” Critics of Louisiana exceptionalism, however, point out that facts on the ground differed less than laws on the statute books, and “despite Louisiana's unusual Roman law heritage and its Civil Code, its cases exhibit struggles over the character of slaves and masters remarkably similar to those in common law states.”

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The law has often proved a tool of dispossession, and in the antebellum South, it was frequently a tool of white supremacy. But refusing to admit Black testimony created the same problems that other witness competency restrictions created: publicly known eye-witness accounts could not be admitted as sworn testimony. It was harder for courts to arrive at the truth, or, perhaps more importantly, it was harder for courts to convincingly present themselves to the public as arriving at the truth. The admission of free Black witnesses into court sometimes served the immediate interests of the white elite and sometimes it did not, but it always alleviated the friction created by having two public narratives, one widely known in the community but legally inadmissible, and another, narrower narrative, presentable at court. The legitimacy of the law, partly resting on its self-presentation as truth-seeking, benefitted from the minimization of this tension.

The exceptions to the general bar against Black testimony in cases involving whites demonstrate the diversity of legal trends in the antebellum South. Competing pressures to administer a well-functioning legal system and to maintain racial hierarchy exerted force on the white elite. Southern elites, even before the great convulsion of the Civil War, sometimes divided on how best to administer a white supremacist legal regime.

Eric Eisner is a Ph.D. student in the Department of History at Johns Hopkins University. He obtained a J.D. from Yale Law School in 2023 and an M.Phil. (American History) from the University of Cambridge in 2020