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tor Samuel Pomeroy, a Kansas Republican, indicated that the right of Negroes to testify, which Kentucky denied, was an important "civil right."

On January 29, 1866, Trumbull made a lengthy speech tying his Civil Rights Bill to the Interstate Privileges and Immunities Clause. He expressly disclaimed the idea of giving the freemen any political rights, but said that since the Thirteenth Amendment made them free they were entitled to the fundamental rights which that constitutional provision protected, and Congress could legislate to enforce the privileges and immunities of Article 4, Section 2, under the Second Section of the Thirteenth Amendment. Several days later, he again emphasized that this bill was not concerned with political rights."

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Meanwhile, the House of Representatives also debated the Civil Rights Bill. Congressman Samuel S. Marshall, an Illinois Democratic lawyer and an opponent of the bill, said: "I suppose the right to sit upon juries is a civil right.' But his colleague, who supported the bill, Congressman Samuel W. Moulton, replied: "I deny that it is a civil right for anybody to sit on a jury ***." He added: "So far as the matter of sitting on juries is concerned, it is not a civil right, and why? Because you cannot enforce it by a civil writ. I understand that the civil rights referred to in the bill are not of the fanciful character referred to by the gentleman, but the great fundamental rights that are secured by the Constitution of the United States *** the right to personal liberty, the right to hold and enjoy property, to transmit property, and to make contracts." 4

The limited nature of the Civil Rights Bill and the companion Freedman's Bureau Bill even gained support for its objectives from a Democrat, Senator Johnson of Maryland, although he stated that he could not support it for want of power in Congress to pass it." Trumbull also urged the passage of this legislation because in Kentucky, where Negroes could not testify against white men, they were murdered with impunity and the criminals escaped punishment because the evidence of Negro witnesses was not received."

When Bingham introduced the first draft of an amendment which was later to become the First Section of the Fourteenth Amendment into the House of Representatives, he stated that the Privileges and Immunities Clause was simply designed to re-enact and give Congress the power to enforce the rights guaranteed by Article 4, Section 2, of the original Constitution, while the Due Process Clause gave Congress the power to enforce the similar provisions of the Fifth Amendment against the states." Congressman William Higby, a California Republican lawyer, also endorsed this view.

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During the same period, Congressman James F. Wilson, an Iowa Republican lawyer and Chairman of the House Judiciary Committee, introduced Trumbull's Civil Rights Bill into the House. He said that the term "civil rights" in the bill did not include suffrage, nor "do they mean that all citizens shall sit on the juries * * *" but rather they included only the rights protected by Article 4, Section 2 of the original Constitution. Likewise, Congressman Martin R. Thayer, a Pennsylvania Republican lawyer and a supporter of the bill, said that political privileges were not included in the term "civil rights." In response to a question, Wilson later reiterated that the bill did not confer the right to be jurors on Negroes.

42 Globe 39/1, 337.

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4 Globe 39/1, 474-5. Trumbull added in response to questioning: "This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man." See also id. at 600,

1835-6.

Globe 39/1, 599, 606.

45 Globe 39/1.629. See also id. at 541.

4 Globe 39/1, 632. Senator William P. Fessenden, Senate Chairman of the Joint Committee on Reconstruction and a Maine Republican lawyer, said that jury duty was a political right like holding office. Globe 39/1, 704.

Globe 39/1, 747. Even Rogers said that Negroes should be allowed to testify in court, but he opposed allowing them to hold office. Globe 39/1, App. 134.

45 Globe 39/1, 941.

*Globe 39/1, 1033-4, 1088-1090, 1095, 2542.

50 Globe 39/1, 1054.

51 Globe 39/1, 1117.

Globe 39/1, 1151. See also id. at 1154 (Hill), 1159 (Windom). 1162 (Wilson). 1263 (Broomall), 1367 (Wilson). In a lengthy brief filed to support the bill, Rep. William Lawrence, a Republican ex-judge from Ohio, declared that. "It does not affect any political right as . the right to sit on juries. Globe 39/1. 1832.

53 Globe 39/1, App. 156–7. He said: "I do not believe it confers that right upon the emanicpated people, nor upon any portion of the people of the United States, who are not under the laws of the several states qualified to act as jurors." Id. at 157. Representative George F. Miller, a Pennsylvania Republican lawyer, noted that not even the right to vote carried with it the right to be a juror. Globe, 39/1, app. 305.

Wilson, however, justified the bill giving Negroes the right to be witnesses on the ground that it was necessary for the protection of his liberty, security. and property that he not be prevented from giving evidence in his own behalf. He declared that "this is one of the great protective remedies which must run with these great civil rights belonging to every citizen." " He asked rhetorically: "Suppose that the only person witnessing a state of facts necessary to be given in court for the protection of life, liberty, and property should be a black man. has the State the right to say that that man, the only person living who has a knowledge of the facts to protect a citizen, should have no right to testify?”* At the end of the debate, Wilson stated that when an opponent of the bill "talks of setting aside the . jury laws . . . by the bill now under consideration, he steps beyond what he must know to be the rule of construction which must apply here," because the bill was designed only "for the protection of rights."

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In his veto message of the Civil Rights Bill, President Andrew Johnson reasoned that if "Congress can declare by law *** who shall testify, *** then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or judge, to hold any office, and, finally, to vote #19 57 In answering the President for the Senate Republican majority, Trumbull observed: "The granting of civil rights does not, and never did in this country, carry with it *** political privileges. A man may be a citizen in this country without a right to vote or without a right to hold office. The right to vote and hold office in the States depends upon the legislation of the various States *** so that the fact of being a citizen does not necessary qualify a person for an office, nor does it necessarily authorize him to vote. Women are citizens; children are citizens; but they do not exercise the elective franchise by virtue of their citizenship. Foreigners *** before they are naturalized are protected in the rights enumerated in this bill, but because they possess those rights in most, if not all, the States, that carries with it no right to vote."

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When the final draft of the First Section of the Fourteenth Amendment was introduced into the House of Representatives by Congressman Thaddeus Stevens, the Radical Republican leader and Chairman on the part of the House of the Joint Committee on Reconstruction, wherein it was framed," he advocated the Equal Protection Clause in the very words of the Civil Rights Bill, and by enumerating the rights set forth therein, including the right to testify in court. He said that the reason for proposing a constitutional amendment was that the bill might be repealed if the Democrats took control of Congress. Other Congressmen likewise discussed the First Section as a constitutional embodiment of the Civil Rights Bill.

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In a long political harangue, Congressman Andrew T. Rogers, a New Jersey Democratic opponent of the bill, suggested that the right to be a juror, judge, or President of the United States was a privilege protected by the Privileges and Immunities Clause. But his bombast and exaggeration of the amendment, in asserting that it "saps the foundation of the Government," creates "one Imperial despotism," "will result in a revolution," and will "rock the earth like the throes of an earthquake" by creating a "despotism and tyranny," was so wild that no Republican even bothered to answer him.62 However, the next speaker, Congressman John F. Farnsworth, an Illinois Republican lawyer who supported the Fourteenth Amendment, noted that the Privileges and Immunities Clause and the Due Process Clause were already in the Constitution, and only the Equal Protection Clause was new."

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When the Fourteenth Amendment was introduced into the Senate by Senator Jacob M. Howard, a Michigan Republican member of the Joint Committee on

54 Globe 39/1, App. 157.

55 Globe 39/1, App. 157.

56 Globe 39/1, 1294.

See also id. at 2505, where Wilson again said that the Civil Rights Bill did not include the right to be a juror or vote.

57 Globe 39/1, 1680.

58 Globe 39/1, 1757.

59 Globe 39/1, 2286.

eo Globe 39/1, 2459.

See Globe 39/1, 2462 (Garfield). 2465 (Thayer): 2467 (Boyer): 2498 (Broomall): 2502 (Raymond): 2511 (Eliot): 2538 (Rogers): 2883 (Lathara): 2961 (Poland).

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also Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 47-8 (1955).

62 Globe 39/1, 2538.

63 Globe 39/1, 2539.

Reconstruction and a former state attorney-general, on behalf of that committee, he, too, said that the Privileges and Immunities Clause was designed to give Congress the power to enforce on the states the guarantees of Article 4, Section 2. He also said that political privileges were not included in the First Section. Senator Timothy O. Howe, a Wisconsin Republican and a former state supreme court judge, enumerated the rights in the Civil Rights Bill, including the right to testify, as the rights protected by the First Section of the Fourteenth Amendment. Senator John B. Henderson, a Missouri Republican lawyer who supported the Fourteenth Amendment, likewise declared that it and the predecessor Civil Rights Bill were designed to enforce the old Interstate Privileges and Immunities Clause, which did not include political rights.**

C. EARLY RECONSTRUCTION PERIOD VIEWS

Debate on jury qualifications during the early reconstruction period was sporadic. For example, during the debate on Negro suffrage in the District of Columbia, Hendricks remarked that as a lawyer he had addressed a large number of jurors who, although illiterate were intelligent.s In the First Session of the

Fortieth Congress, Senator Charles Sumner of Massachusetts sponsored a bill which was passed permitting Negroes to serve as office-holders and jurors in the District of Columbia. A point was made that these subjects were unrelated, but the Republicans rejected this point.

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Because the bill allowing Negroes to hold office and be jurors in the District of Columbia failed to become law because the President did not sign it, Sumner reintroduced his bill in the Second Session of the Fortieth Congress in December, 1867. Hendricks objected that the people of various states had voted against even letting Negroes vote, while Johnson of Maryland also objected that Negro judges and jurors might subjudicate the rights of white persons. In his opinion, Negroes were too ignorant to be entrusted with such a responsibility. To this Senator Samuel C. Pomeroy, a Radical Republican from Kansas who supported the measure, replied that to Negroes "it may be quite as objectionable to them to have their rights adjudicated by twelve ignorant white men as it is for white men to have their rights adjudicated by twelve ignorant black men.' Pomeroy added that since Negroes could vote in the District, they ought to be eligible to office, because voters are generally eligible to office. But Hendricks replied: "Now, this bill proposes not only that negroes shall be allowed to hold office, and I suppose any office in the District of Columbia, but that they shall be allowed to sit upon the juries. Of course it will follow that they may be judges. The spectacle will then be presented of negro courts to try cases. It is not in accord with my taste ***" 72

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However, the Senate passed the bill by a lop-sided party vote. Somewhat later in the session, Senator James R. Doolittle, an opponent of the Republican majority from Wisconsin, quoted the late President Abraham Lincoln as being opposed to letting Negroes hold office or serve on juries."

In the Third Session of the Fortieth Congress, an event occurred which was to alter considerably the Radical theory for giving Congress the power to provide that Negroes might sit on state juries. The original Senate draft of the proposed Fifteenth Amendment forbade racial discrimination not only in voting but also in the right to hold public office. However, the House version did not cover the right to hold office, a fact which caused much protest by senators." Senator Henry Wilson, a Radical Republican from Massachusetts who was four years later to be Grant's Vice-President, and an ardent advocate of including

* Globe 39/1, 2765-6.

Globe 39/1, 2766.
Globe 39/1, App. 219.

Globe 39/1, 3035.

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See also id. at 2961 (Poland); App. 240 (Davis).

Cong. Globe, 39th Cong., 2d Sess. 105 (1866).

Cong. Globe, 40th Cong., 1st Sess. 677, 726-7 (1867).

70 Cong. Globe, 40th Cong., 2nd Sess. 38-9 (1867).

Id. at 39.

72 Id. at 50.

Id. at 51. Because of a pocket veto, the bill had to be passed again.

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See Globe 40/3,

1080. It finally became law when Grant became President. 16 Stat. 3 (1869). See Globe 41/3, 1055 (Sumner). 1056 (Carpenter), 1058 (Sawyer) (1871).

74 Globe 40/2, 2869. (1868).

Cong. Globe, 40th Cong., 3rd Sess. 854 (1869).

76 Id. at 726.

Id. at 1291-2.

the right to hold office in the proposed amendment, asked: "suppose we submit this imperfect proposition which says to seven hundred and fifty thousand colored men in this country, 'You shall have the right to vote, but you shall not have the right to sit upon a jury or the right to hold office,' how will they feel in regard to it?" However, the conference committee between the two houses struck out the right to hold office." Many senators were very dissatisfied," but ultimately the House version was approved.$1

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The following year, an attempt by the Joint Committee on Reconstruction to attach a fundamental condition to the admission of Virginia, that all persons be allowed to hold office and be jurors without racial discrimination, at first failed but ultimately succeeded. Aside from a few casual remarks on southern jurors, that was all that was said relative to jury duty during this period.

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D. SUMNER'S AMNESTY BILL AMENDMENT

On May 13, 1870, Senator Charles Sumner, the ultra-equalitarian Radical Republican from Massachusetts, introduced in the Senate a bill to supplement the Civil Rights Act of 1866. One of the sections of Sumner's bill read as follows:

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"That no person shall be disqualified for service as juror in any court, national or State, by reason of race, color, or previous condition of servitude: Provided, That such person possesses all other qualifications which are by law prescribed; and any officer or other persons charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any person for the reason above named, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than $1,000 nor more than $5,000."

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The bill was referred to the Judiciary Committee, reported adversely for the committee by Senator Lyman Trumbull of Illinois, its chairman, and died. On January 20, 1871, Sumner reintroduced his bill. Again it was referred to the Judiciary Committee, and once more, on February 12, 1871, it was reported adversely by Senator Trumbull for the committee, and died. In both cases, the adverse report, although oral, was unanimous. Some committee members thought that the bill was unconstitutional, while others thought it unnecessary.* At the opening of the First Session of the Forty-Second Congress, Sumner introduced his bill for the third time. Having been twice rebuffed by the Judiciary Committee, he asked that it not be buried in that legislative graveyard again. However, no other senator indicated much interest, and the bill once more expired of its own accord.9

78 Id. at 1296. See also id. at 1080 (District of Columbia bill).

7 Id. at 1623.

so Id. at 1623-29, 1639-41.

81 Id. at 1641.

8 The Joint Committee on Reconstruction reported out a bill readmitting Virginia on condition, inter alia, that it allow all persons to hold office and be jurors without racial discrimination. Cong. Globe, 41st Cong., 2d Sess. 362 (1870). Congressman John A. Bingham of Ohio, the Radical Republican lawyer who drafted the First Section of the Fourteenth Amendment, opposed it on the ground that the fundamental conditions were unconstitutional. Id. at 493. The House sustained Bingham's position by a narrow vote. Id. at 502. However, the Senate restored the condition as to the holding of office. Id. at 643-4. Congressman Samuel S. Cox. a New York Democrat, apparently equated this with the right to serve on juries. The House then passed the Senate version. Id. at 720. It was ultimately signed into law. See 16 Stat. 63 (1870). It might be noted that there were frequent references in the debate to the fact that Negroes in Virginia were excluded from juries. Id. at 490, 501. However, it should be noted that Congressman George W. Morgan, an Ohic Democrat lawyer, said that they were permitted to sit on juries there. Id. at 719. It is interesting to note that Bingham carefully refrained in his speech attempting to convince his fellow Republicans to rely on the Constitution without a fundamental condition from stating whether it protected the right to sit on a jury, a strong indication that in his view it did not. because if it did he would have said so. Id. at 495. Congressman Frederick Stone, a Maryland Democrat lawyer, said that Congress had no constitutional power to control juries. Id. at App. 58.

3 See e.g. Cong, Globe, 41st Cong., 2nd Sess. App. 394 (1870), where Cong. John C. Conner, a Texas Democrat, decried the ignorance of Negroes on southern juries, and Cong. Globe, 42nd Cong., 2nd Sess., App. 394 (1879), where Cong. Pierce M. B. Young, a Georgia Democrat, protested against the exclusion of ex-confederates from juries on federal courts in the south.

84 14 Stat. 27 (1866).

85 Cong. Globe. 41st Cong., 2d Sess. 3434 (1870). See also Cong. Globe, 42nd Cong., 2nd Sess. 244, 821 (1872) (hereinafter referred to as Globe 42/4).

S6 Cong. Globe, 41st Cong., 2d Sess. 5314 (1870).

87 Cong. Globe, 41st Cong.. 3rd Sess. 616 (1871).

88 Id. at 1263. See also Globe 42/2, 822.

89 Globe 42/2, 493, 731.

0 Cong. Globe, 42nd Cong., 1st Sess. 21 (1871).

In spite of these rebuffs, on December 20, 1871, Sumner moved to tack his proposal on as a rider to the amnesty bill, a proposal, authorized by the third section of the Fourteenth Amendment, to lift the remaining political disabilities of most of the ex-confederates, which that section had imposed." This bill was approved of by the President, enthusiastically supported by Southern Republicans and all Democrats, and acquiesced in, at least half-heartedly, by most Republicans. Passage by the necessary two-thirds majority therefore seemed assured. During the ensuing debate in the Committee of the Whole, other sections were considered but this one was ignored, and ultimately Sumner's amendment lost by 30 to 29.

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Sumner renewed his amendment in the whole Senate. He read letters from Negroes and other material supporting his bill. One Viriginia newspaper asked for "a measure to protect us, white and black, from a Ku Klux judge and jury.' Several senators attacked Sumner's bill generally as unconstitutional. One of these was Senator Lot M. Morrill, a Radical Republican lawyer from Maine and an erstwhile ally of Sumner who had voted for the Fourteenth Amendment." Sumner defended his amendment on the basis of the Declaration of Independence and the Thirteenth Amendment, along with almost every pore of the original Constitution, giving only scant consideration to the Fourteenth Amendment."7 The first major attack on the jury clause came from Senator Matthew H. Carpenter, a Wisconsin Republican lawyer of some note who had saved the Radical reconstruction measures from being declared unconstitutional by the Supreme Court by winning the celebrated McCardle Case." He said:

"Now, I doubt at least the constitutionality of that provision. We have already provided that colored persons may serve as jurors in common with white persons in the Federal courts. Can we go further? Can we fix the qualifications for serving as a juror in a State court any more than we can fix the qualification for serving upon the bench of a State court? No amendment of the Constitution, it is to be borne in mind, has taken away from the States the power of determining the qualification of those who shall hold office in the State. A constitutional amendment has taken away from them the power to discriminate between citizens as to the right to vote on the ground of race, color, or previous condition of servitude; but that amendment does not extend to holding office. Now, I am inclined to think, although I may be wrong in this, that this provision determining who shall be qualified to serve as a juror in the State courts is beyond the province of this Government to enact. We can pay that for our own courts, and we have said it; so that, so far as our courts are concerned, there is no necessity for this amendment, and so far as the State courts are concerned I doubt at least the power of the General Government to pass it." "

Several days later, Senator Oliver P. Morton, an Indiana Republican lawyer, defended the constitutionality of the jury clause based on the Privileges and Immunities Clause of the Fourteenth Amendment. Morton said:

"If we have the power to pass any part of this bill, or to enforce any of the privileges or immunities that belong to citizens of the United States as such, we have the right to enforce the provision contained in this section. It is the right of the State to prescribe the qualifictions of jurors, that they shall be householders, if you please, that they shall be of a certain age, that they shall be taxpayers the qualifications are different in different States- but it seems to me that it is a violation of the spirit and of the essence of the fourteenth amendment to say that a State may exclude a man from being a juror on account of his race or color; in other words, while he may be required to have all the other qualifications that the State has the right to prescribe in regard to white men, yet that he shall not be excluded if he has those qualifications because of his color."

9 100

Carpenter interrupted Morton to ask what the difference was between fixing the qualifications of jurors and those of judges in state courts. Morton replied that

91 Globe 42/2, 237, 240.

92 Globe, 42/2, 274.

83 Globe 42/2, 278, 381, 488.

Globe 42/2, 432.

See, e.g.. Globe 42/2, 495, 530-1, 703, 764–5.

Globe 42/2, App. 1-5.

See Globe 42/2, 727-730.

98 Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1867); 74 U.S. (7 Wall.) 506 (1868). Globe, 42/2, 760.

100 Globe, 42/2, 820.

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