O Say Can You See

Error to the circuit court for the District of Columbia, sitting at Washington.

At the trial, several bills of exception were taken, the substance whereof is given in the opinion of the court.

F. S. Key and Morsell, for the plaintiffs in error.

Law and Jones, contrà.

Marshall, C. J., delivered the opinion of the court, as follows:—

This was a suit instituted by the plaintiffs in the circuit court of the United States for the county of Washington, in which they claim freedom. On the trial of the issue, certain depositions were offered by the plaintiffs which were rejected by the court, and exceptions were taken. The verdict and judgment being rendered for the defendants, the plaintiffs have brought the cause into this court by writ of error, and the case depends on the correctness of the several opinions given by the circuit court.

The first opinion of the court to which exception was taken, was for the rejection of part of the deposition of Caleb Clarke, who deposed to a fact which he had heard his mother say she had frequently heard from her father.

The second exception is to the opinion overruling part of the de-   position of Freeders Ryland, which stated what he had heard Mary, the ancestor of the plaintiffs, say respecting her own place of birth and residence.

The fifth exception is substantially the same with the second. The question is somewhat varied in form, and the testimony given by the defendant, to which no exception was taken, is recited, and the hearsay evidence is then offered as historical; but the court perceives no difference, in law, between the second and fifth exceptions. The sixth exception is taken to an instruction given by the court to the jury on the motion of the counsel for the defendants. The plaintiffs had read the deposition of Richard Disney, who deposed that he had heard a great deal of talk about Mary Queen, the ancestor of the plaintiffs, and has heard divers persons say that Captain Larkin brought her into this country, and that she had a great many fine clothes, and that old William Chapman took her on shore once, and that nobody would buy her for some time, until at last James Caroll bought her.

Whereupon the defendant's counsel moved the court to instruct the jury that if they find the existence of this report and noise was not stated by the witness from his knowledge, but from what had been communicated to him respecting the existence of such a report and noise many years after her importation, without its appearing by whom or in what manner the same was communicated to him, then the evidence is incompetent to prove either the existence of such report and noise or the truth of it; which instruction the court gave.

The plaintiffs also read the deposition of Thomas Warfield, who deposed that John Jiams, an inspector of tobacco, told him that Mary, the ancestor of the plaintiffs, was free, and was brought into this country by Captain Larkin, and was sold for seven years. The court instructed the jury that if they should be satisfied upon the evidence that these declarations of John Jiams were not derived from his own knowledge, but were founded on hearsay or report communicated to him many years after the importation and sale of the said Mary, without its appearing by whom or in what manner such communication was made to him; then his said declarations are not competent evidence in this cause. To these instructions the counsel for the plaintiffs excepted.

These several opinions of the court depend on one general principle, the decision of which determines them all. It is this: That hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible of being proved by witnesses who speak from their own knowledge.

 

However the feelings of the individual may be interested on the part of a person claiming freedom, the court cannot perceive any legal distinction between the assertion of this and of any other right, which will justify the application of a rule of evidence to cases of this description which would be inapplicable to general cases in which a right to property may be asserted. The rule, then, which the court shall establish in this cause will not, in its application, be confined to cases of this particular description, but will be extended to others where rights may depend on facts which happened many years past.

It was very justly observed by a great judge, that "all questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives, our liberty, and our property, are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded."

One of these rules is, that "hearsay" evidence is in its own nature inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case, is not the sole ground of its exclusion. Its intrinsic weakness its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practised under its cover, combine to support the rule that hearsay evidence is totally inadmissible. To this rule there are some exceptions which are said to be as old as the rule itself. These are cases of pedigree, of prescription, of custom, and in some cases, of boundary. There are also matters of general and public history which may be received without that full proof which is necessary for the establishment of a private fact.

It will be necessary only to examine the principles on which these exceptions are founded, to satisfy the judgment that the same principles will not justify the admission of hearsay evidence to prove a specific fact, because the eye-witnesses to that fact are dead. But if other eases standing on similar principles should arise, it may well be doubted whether justice and the general policy of the law would warrant the creation of new exceptions. The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule; the value of which is felt and acknowledged by all.

If the circumstance that the eye-witnesses of any fact be dead should justify the introduction of testimony to establish that fact, from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained.

 

This subject was very ably discussed in the case of The King against the Inhabitants of Eriswell, 3 T. R. 707, where the question related to the fact that a pauper had gained a residence, a fact which it was contended might be proved by hearsay evidence. In that case the court was divided, but it was afterwards determined that the evidence was inadmissible.

This court is of the same opinion.

The general rule comprehends the case, and the case is not within any exception heretofore recognized. This court is not inclined to extend the exceptions further than they have already been carried.

There are other exceptions taken which appear on the record, but were not much relied upon in argument.

The third exception is to the qualification of one of the jurors. He was called as a talesman, and was stated to be an inhabitant of the county of Alexandria, not of Washington. The court decided that he was a proper juryman, and he was sworn. After his being sworn the objection was made by the plaintiff's counsel, and an exception was taken to the opinion of the court.

Whatever might have been the weight of this exception if taken in time, the court cannot sustain it now. The exception ought to have been made before the juror was sworn.

The fourth exception also applies to an opinion given by the circuit court, respecting the service of one of the persons summoned as a juror. James Reed, when called, was questioned, and appeared to have formed and expressed no opinion on the particular case; but on being further questioned, he avowed his detestation of slavery to be such that, in a doubtful case, he would find a verdict for the plaintiffs; and that he had so expressed himself with regard to this very cause. He added, that if the testimony were equal, he should certainly find a verdict for the plaintiffs. The court then instructed the tryers that he did not stand indifferent between the parties. To this instruction an exception was taken.

It is certainly much to be desired that jurors should enter upon their duties with minds entirely free from every prejudice. Perhaps on general and public questions it is scarcely possible to avoid receiving some prepossessions, and where a private right depends on such a question, the difficulty of obtaining jurors whose minds are entirely uninfluenced by opinions previously formed is undoubtedly considerable. Yet they ought to be superior to every exception, they ought to stand perfectly indifferent between the parties; and although the bias which was acknowledged in this case might not perhaps have been so strong as to render it   positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way; and therefore the court exercised a sound discretion in not permitting him to be sworn.

There is no error in the proceedings of the circuit court, and the judgment is affirmed.

Duvall, J. The principal point in this case is upon the admissibility of hearsay evidence. The court below admitted hearsay evidence to prove the freedom of the ancestor from whom the petitioners claim, but refused to admit hearsay of hearsay. This court has decided that hearsay evidence is not admissible to prove that the ancestor from whom they claim was free. From this opinion I dissent.

In Maryland, the law bas been for many years settled, that on a petition for freedom, where the petitioner claims from an ancestor who has been dead for a great length of time, the issue may be proved by hearsay evidence, if the fact is of such antiquity that living testimony cannot be procured. Such was the opinion of the judges of the general court of Maryland, and their decision was affirmed by the unanimous opinion of the judges of the high court of appeals in the last resort, after full argument by the ablest counsel at the bar. I think the decision was correct. Hearsay evidence was admitted upon the same principle, upon which it is admitted to prove a custom, pedigree, and the boundaries of land; because, from the antiquity of the transactions to which these subjects may have reference, it is impossible to produce living testimony. To exclude hearsay in such cases, would leave the party interested without remedy. It was decided also that the issue could not be prejudiced by the neglect or omission of the ancestor. If the ancestor neglected to claim her right, the issue could not be bound by length of time, it being a natural inherent right. It appears to me that the reason for admitting hearsay evidence upon a. question of freedom is much stronger than in cases of pedigree, or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right of property.

And people of color, from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection. A decision that hearsay evidence in such cases shall not be admitted, cuts up by the roots all claims of the kind, and puts a final end to them, unless the claim should arise from a fact of recent date, and such a case will seldom, perhaps never, occur.