Hearsay evidence is incompetent to establish any specific fact
which is in its nature susceptible of being proved by witnesses who
speak from their own knowledge. Claims to freedom in Maryland are
not exempt from that general rule.
There are some exceptions to the general rule excluding hearsay
testimony 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.
After a juror is sworn, no exception can be taken to him on
account of his being an inhabitant of another county. If a juror be
challenged for favor, and upon examination before the triers he
declares that if the evidence should be equal, he should give a
verdict in favor of that party upon whom the burden of proof lies,
the court, in the exercise of a sound discretion, ought to reject
him although the bias should not be so strong as to render it
positively improper to allow him to be sworn.
At the trial, several bills of exception were taken.
Page 11 U. S. 291
1. The first was for the rejection of part of the deposition of
Caleb Clarke, who deposed to a fact respecting the ancestor of the
petitioners which he had heard his mother say she had frequently
heard from her father.
2. The second was for overruling part of the deposition of
Freeders Ryland which stated what he had heard Mary, the ancestor
of the petitioners, say respecting her own place of birth and
residence.
3. The third exception stated that after a juror was sworn the
petitioners excepted to him because he was not an inhabitant of the
county, but the court overruled the exception.
4. The fourth exception stated that, a talesman being challenged
for favor, and having, upon being questioned, avowed his
detestation of slavery to be such that in a doubtful case he would
find a verdict for the petitioners, and that he had so expressed
himself with regard to this very case, and that if the testimony
were equal, he should certainly find a verdict for these
petitioners, the court instructed the triers that he did not stand
indifferent between the parties.
5. The fifth exception was similar to the second.
6. The sixth exception stated that the petitioners, having read
the deposition of R. Disney stating that he had heard a report from
divers persons respecting the manner of the importation of the
ancestor of the petitioners, &c., the court instructed the jury
that if it should believe from the evidence that the existence of
the report was not stated by the deponent of his own knowledge, but
from what had been communicated to him respecting the existence of
such a report 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 or the truth of it.
The principal exception is to the opinion of the court that in
tracing a pedigree, the hearsay of hearsay is
Page 11 U. S. 292
not admissible. Caleb Clarke's deposition as to what he heard
his mother say was admitted, but as to what he heard his mother say
her father said was rejected. If this opinion be correct, it will
be impossible to prove any ancient fact.
Hearsay is only admissible on the ground of necessity and
antiquity. 1 Wash 123; 2 Wash. 148. There was no evidence of the
death of the person whose declarations were given in evidence.
Hearsay of hearsay is analogous to a copy of a copy. The witness
ought at least to state from whom he heard the report.
Every claim to freedom ought to be supported by the same kind of
evidence as is necessary to support other claims. There is no rule
of law that exempts it from the general principles of evidence. In
the present case, the hearsay was not introduced to prove pedigree,
nor prescription, nor custom, but to prove that a certain ancestor
came from England. It was the neglect of the parties that they did
not urge their claim while they had legal evidence to support it. 5
T.R. 121;
Oatram v. Morewood. Although a general right may
be proved by traditional evidence, a particular fact cannot, except
in tracing a pedigree. The admission of hearsay is an exception to
the general rule of evidence, and therefore must be confined
strictly to the excepted cases, which are prescription, custom and
pedigree, cases in which the strength of the claim depends upon its
antiquity. He who would use hearsay as evidence must first prove
all the facts which would entitle him to use it, and must satisfy
the court that better evidence cannot be had. The hearsay must be
of such a fact as, if the person were living, could be given in
evidence by him. Hearsay evidence of a general reputation of a fact
is not admissible. The witness himself must know the fact of
general reputation.
There are two objections to Disney's deposition: 1, that he does
not state who informed him, so that it may be known whether that
person be living or not so
Page 11 U. S. 293
as himself to be a witness, and 2, that a general reputation of
a fact is not evidence.
The general rule of evidence is that if the evidence offered be
the best which the nature of the case admits and leaves no
presumption that there is better behind, it is admissible.
Such evidence as this is always admitted in the courts of
Maryland, under whose laws this case was tried, and its use had
been sanctioned by the authority of the highest court of that
state. The case cited by the opposite counsel shows that it is
admitted not only in cases of prescription, custom, and pedigree
but in all cases of the like nature. So it has been received in
settlement cases, in all cases of paupers, and in questions of
ancient boundaries in ejectment. The evidence taken upon
commissions to mark and bound lands under the statute of Maryland
generally consists of testimony of this kind. 1 Harris &
McHenry's Reports 84, 85. After a lapse of 100 years, better
evidence than this cannot be expected. The general reputation of
the fact that the ancestor was free is sufficient to rebut the
presumption arising from color, and throws the burden of proof on
the other side.
MR. CHIEF JUSTICE MARSHALL 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.
Page 11 U. S. 294
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
deposition 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 it found 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
Page 11 U. S. 295
was free and was brought into this country by Captain Larkin,
and was sold for seven years. The court instructed the jury that if
it 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
Page 11 U. S. 296
of its exclusion. Its intrinsic weakness, its incompetency to
satisfy the mind of the existence of the fact, and the frauds which
might be practiced 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 eyewitnesses to that fact are
dead. But if other cases 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, 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.
Page 11 U. S. 297
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 triers 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
Page 11 U. S. 298
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 has 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
Page 11 U. S. 299
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.
