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[[preprinted]] 478 [[/preprinted]] [[Footnote 1]] by our Courts, whereas "no U.S. Court can inflict the punishment of whipping", and that "white men charged with larceny and other crimes are for the most part reserved for trial by Military Commission" and therefore not whipped then I misapprehend your meaning. You have not been charged with saying that unjust discriminations against the negro race have been made "by the adjudications of our Courts". I have merely called your attention to the fact that no such discriminations have been made, and cited you to the proof. Unless such discrimination is made, there is no reason why our Courts, administered according to the rules of the Common Law, so far as negroes are concerned, permitting them to introduce every witness white or black, who knows any thing important for the defence, should be excluded from trying offences committed by negroes, because "under existing orders certain white criminals" are "to be tried by Military Commission. As you disclaim intending to complain "that any civil court had made unjust discrimination against the negro race in its adjudications", and as it is your duty to see that justice is done the negro race, the inference is, that experience has satisfied you that there has been no such discrimination. I deem it right and proper to state, that our people, whom I believe to be sincerely desirous of discharging faithfully their duties to the United States Government, and whose character for honesty and impartiality in the jury box has almost passed into a proverb feel acutely the degradation to which they have been subjected, in being held amenable for criminal offences, to a tribunal, established in violation of the fundamental principles of Magna Charta, guaranteeing to every freeman a trial by jury, and awarded punishment, in many instances by men totally unversed in the laws, which they have assumed to administer. In regard to the question propounded as to the admission of negro evidence against white persons, I presume that you are not aware that a Judge is never expected to express an opinion in advance, upon a question that may soon be brought before him for judicial decision. I feel, however, justified in saying that if the chief difficulty in the way of yielding the exclusive jurisdiction in criminal matters to our Courts, consists in the apprehension that any unjust discrimination against the negro race would be made in regard to the right to testify, such apprehension ought to be removed, by the recent act to which you refer, inasmuch as by section 9th it is declared, that whenever matters relating to freedmen shall be fully committed to the Courts of this State, "That persons of color, not otherwise incompetent, shall be capable of bearing evidence in all controversies at law and in equity, where the rights of persons or property of persons of color shall be put in issue and would be concluded by the judgment or decree of Court; and also in pleas of the State where the violence, fraud or injury alleged shall be charged to have been done by or to persons of color. In all other civil and criminal cases such evidence shall be deemed inadmissable unless by consent of the parties to the record." As this provision extends to negroes "all common law rights" in every possible contingency in which their rights of person or property shall be put in issue, I [[Footnote 1]] Howard [[end page]] [[start page]] [[preprinted]] 479 [[/preprinted]] [[Footnote 1]] trust that your influence will be exerted for the purposes of putting an end to that unusual and irritating tribunal, which has been established for the trial of freemen, and yet entirely ignores that foundation stone of Anglo-Saxon Liberty, to wit: Trial by Jury, and which our people believe not unfrequently makes unjust discrimination against the white race, and in favor of the negro. If not permitting the negro to testify in cases affecting white persons alone, where the parties interested refuse to consent to their being admitted at witnesses, is to be considered a reason for interference with the administration of the Laws of North Carolina, all right minded citizens will hail with delight the coming of that hour, in which a tribunal, thus perpetuated, shall be numbered with the things that were. Very Respectfully, (Sd) Daniel G. Fowle. Judge Sup. Ct. of Laws Bureau Refugees, Freedmen &c Raleigh N.C. April 7th, 1866. D.G. Fowle Judge Sup. Court of Law, Sir, Your communication of the 5th inst., was received last evening. I regret that it is not consistent with your duty to express an opinion upon the question propounded in my note as to the admission of negro testimony, against white persons, for, were the uncertainty on this point removed, I could suggest to the Commissioner of this Bureau, such changes in the orders under which we now act, as might possibly lead to satisfactory settlement of the question of jurisdiction. I trust an occasion may soon be given for a judicial decision which will leave no doubt as to the status of the negro. It does not become me to enter into any discussion of the character of military tribunals established by the United States Government, as I am no more responsible for their existence than I am for the condition of the country where their jurisdiction has been deemed necessary. Thanking you for your patience and courtesy, and sorry to have given you so much trouble. I remain, Yours very respectfully, (Sd) E. Whittlesey, Assistant Commissioner. The foregoing correspondence was induced as you will observe by the action of the Courts reviving the practice of public whipping. Knowing that this action was exciting much ill feeling among the freedmen, who regard it as a relic of the old system of slavery, and fearing that it might incite violence, I felt it my duty to use my influence to stay such proceedings. The law which punishes larceny by whipping it is true, makes no distinction between whites & blacks; and it is claimed that no partiality has been shown in its administration. But as the courts have discretion in the matter [[Footnote 1]] Howard
