102

103

he doubted the power of the states to exclude Negroes from the bench, because if a state could not discriminate in voting qualifications, it could not make race or color "a test for office under the amendments to the Constitution." ,, 101 Morton failed to mention that such a provision specifically prohibiting racial discrimination in public office was defeated in the Third Session of the Fortieth Congress when the Fifteenth Amendment was debated, after a bitter fight, in which he took a prominent part.' Morton analogized the right to serve on a jury with the right to testify, which was protected by the Fourteenth Amendment and the Civil Rights Act of 1866. Once again, he referred to the Privileges and Immunities Clause as the source of Congress' power." To this Carpenter replied: "The right to serve in the jury-box strikes me as a political right like that of serving on the bench. It is not inherent in a citizen. If it was, a woman would have as much right to serve in the jury-box as a man. A woman is as much a citizen as a man, and always has been under this Government. The political right to be a judge, the political right to be a sheriff, the political right to be the clerk of a court, the political right to serve as a juror, seem to me to fall into the same class and belong to those political rights as to which the States always have discriminated and may still discriminate. The right to testify in court is undoubtedly one of those inherent privileges that belong to a citizen which the State cannot impair; but that is different from the political right to serve as a juror or judge; ***"104

Sumner then arose to deny Carpenter's distinction between civil and political rights as far as jury service was concerned. He said that "the distinction is obvious" between judges and jurors. Sumner reasoned:

"He knows well the history of trial by jury; he knows that at the beginning the jurors were witnesses from the neighborhood, afterward becoming judges, not of the law, but of the fact. They were originally witnesses from the vicinage, so that if you go back to the very cradle of our jurisprudence you find jurors nothing but witnesses, and now I insist that they should come under the same rule as witnesses. If the courts are opened to colored witnesses. I insist by the same title they must be opened to colored jurors. . . . The right to be a juryman is identical in character with the right to be a witness. I know not if it be political or civil; it is enough for me that it is a right to be guarded by the nation. It might be noted that Sumner was building on the function of a jury which had long since ceased. A jury is supposed to render its verdict based on the evidence placed before it,' and while at that time a juror was not incompetent merely because he was a witness in the cause, a rule which still obtains unless changed by statute." if the juror had formed a fixed or settled opinion in the case he could be challenged for cause." Today, it is not improbable that the Supreme Court would hold that a jury which obtained its information from outside sources was so biased that a trial held on this basis would deny due process of law."

110

108

106

100

107

Sumner also declared that justice could not be obtained for Negroes in the South unless they were placed on juries. He stated that he was constantly receiving letters from the South complaining that because Negroes were excluded from juries, they could not obtain justice."11

101 Ibid.

102 Cong. Globe, 40th Cong., 3rd Sess. 1623-29, 1639-41 (1869).

103 Globe 42/2, 820.

104 Globe 42/2, 821.

105 Globe 42/2.822.

106 State v. McClear, 11 Nev. 39 (1876); State v. Voorhies, 12 Wash. 53, 40 Pac. 620 (1895). See also Lamb v. Lane, 4 Ohio St. 167, 179 (1854).

107 Bell v. State, 44 Ala. 393 (1870); Rondeau v. New Orleans Improvement & Banking Co., 15 La. 160 (840): In re. Fellows, 5 Me. (5 Greenl.) 333 (1828); Howser v. Commonwealth, 51 Pa. 332 (1865). Cf. Commonwealth v. Joliffe, 7 Watts 585 (Pa. 1838).

108 50 C.J.S.. Juries, § 209.

109 United States v. Burr, 25 Fed. Cas. 49 No. 14, 692g (C.C.D.Va., 1807); People v. Williams, 6 Cal. 206 (1856); Wright v. State, 18 Ga. 383 (1855); Willis v. State, 12 Ga. 414 (1853); State v. Shelledy, & Iowa 477 (1859): State v. George, 8 Rob. 535 (La 1844); People v. Honeyman, 3 Denio 121 (N.Y. 1846): Osiander v. Commonwealth. 3 Leigh 780, 24 Am. Dec. 693 (Va. 1831): Sprouce v. Commonwealth. 2 Va. Cas. 375 (Va. 1823). 110 See Turner v. Louisiana, 379 U.S. 466 (1965). See also the opinion of Chief Justice Marshall in United States v. Burr, supra, at p. 50: "I have always conceived, and still conceive, an impartial jury as required by the common law, and as secured by the constitution, must be composed of men who will fairly hear the testimony which may be offered to them, and bring in that verdict according to that testimony, and according to the law arising on it."

111 Globe 42/2, 822-3.

625

A bit later on, Carpenter took the occasion to deride Sumner's constitutional base for the jury clause as well as the other clauses, which was the Declaration of Independence."

Carpenter said:

"The Senator from Massachusetts does not seem to be very anxious to secure civil rights unless it can be done in a way that will strike at the vital provisions, of the Constitution. The dish of civil rights, in his estimation, is tasteless unless it be flavored with some unconstitutional ingredient. . . . A bill which does not provoke some one's fears that it is violative of the Constitution cannot in his opinion be very beneficial to colored citizens. If our colored citizens have no more respect for the Constitution than the Senator from Massachusetts has exhibited in this debate, then may God have mercy upon the Constitution and upon the people of this country." 113

Carpenter also asserted that there was a large distinction between jurors and witnesses. He mentioned that jurors must be male citizens over twenty-one years of age in some states, while witnesses did not need to be male, or citizens, He stated that it was a privilege of all parties to call or over twenty-one. witnesses which a state could not abridge under the Fourteenth Amendment. Carpenter also noted that such a universal privilege had to be distinguished from political rights or franchise which a state was entitled to deny even after enactment of the Fourteenth Amendment. He averted to the fact that the original draft of the Fifteenth Amendment had included the right to hold office, a point which Sumner conceded. Carpenter therefore suggested that since Sumner was going to travel outside of the Constitution and rely on the "more general atmosphere of the Declaration of Independence," he should include the right to be a state judge along with a state juror in the bill. Carpenter concluded by once again pointing out that the Privileges and Immunities Clause of the Fourteenth Amendment drew a distinction between civil and political rights, including jury service in the latter."11

Senator John Sherman, an Ohio Republican lawyer who had voted for the Fourteenth Amendment, likewise justified the jury clause of the bill on the Privileges and Immunities Clause. He declared:

"He [Carpenter] says that the right to be summoned as a juryman is not a privilege and immunity of an American citizen. At first view that appears to be plausible. It may be difficult to distinguish between the right to vote claimed by some women of our country, because they are citizens, and the right to sit upon a jury, assumed to be a privilege under the fourth section of this amendment. Perhaps a right to be summoned on a jury is not in strict terms a privilege or an immunity which a man may claim as a matter of right; but that is not the question. The right to sit upon a jury is a right which no man will claim as a matter of right. It is rather a burden, rather a duty.

"But there is another view in which this section becomes to my mind clearly constitutional. The Constitution of the United States declares that every man shall have an impartial trial by jury. That is a constitutional right. . . . The very word 'jury' implies a trial by a man's peers of the vicinage, of the neighborhood. Now what kind of a trial would that be to which you would subject four millions of the people of the United States in the southern States, where by the law of some of them every man of that race is excluded from sitting as a juryman on a trial? Is that an impartial jury? . . . the right to be tried by an impartial jury is one of the privileges included in the fourteenth amendment; and no State can deprive any one by a State law of this impartial trial by jury."

115

Carpenter stated that the right to trial by jury was simply a limitation in the Bill of Rights on the federal government, but Sherman replied that such a right was one of the privileges and immunities of every American citizen protected 116 When Carpenter retorted that the right under the Fourteenth Amendment." to be tried by a judge with life tenure was also a privilege of common law, Sumner chimed in by reading the Due Process and Equal Protection Clauses, and declaring that an exclusion of Negroes from juries violated these clauses. But Sherman adhered to his argument about privileges and immunities. He said that only Kentucky and Delaware excluded Negroes any longer from juries. Sherman said that excluding Negroes was against "fair play." He added:

"No man can defend the exclusion by law of black men from a jury-box when you try the black man by a jury. If the black man is too degraded to sit upon a jury, he is too degraded to be tried by a jury; he ought to be disposed of in some other way. . . . It does seem to me, not that it is the right of a man to serve on a jury, but that it is the right of all men to have a fair law and rule by which men of their own race and occupation and color may serve on a jury. It is the right of the accused and not the right of the trier; it is the right of the accused that is abridged by these State laws. . . . I put it rather on the right of the accused, than on the right of the juror."

117

Morrill then interjected that Sherman was confusing the rights belonging to all men with the rights of American citizens. To this, Sherman replied that he claimed that the right to trial by jury was a right of American citizens. Morrill then brought up the fact that women were not allowed to sit on juries. Sherman declared this "a mere matter of municipal regulation." Morrill then pointed out that Congress could not, by a parity of reasoning, interfere when Negroes were excluded by juries because it, too, was a "matter of municipal regulation." Sherman could only reply that although he saw no reason to bar women from voting, holding office, or serving on juries, he would not vote to allow them to do so because it would disturb family relations."

118

Next, Senator Allen G. Thurman, an Ohio Democrat and a former chief justice of the state supreme court, attacked Sherman's theory. Thurman said that the privileges of citizens protected by the Fourteenth Amendment were those in the original Constitution and the Bill of Rights, and asked: "Where is there any provision in the Constitution that gives him a right to sit upon a jury in a State court?" 110 Morton then arose to defend the jury clause once again under the Equal Protection Clause. He said that this clause did not require a state to institute jury trials, but if it did, "whatever law a State may have, the protection and benefit of that law shall extend to all classes." He contended that the word "protection" must be used in a broad sense to include any benefit provided by law. Morton then gave as an illustration a Negro in Kentucky being tried by a jury of white men "that have prejudices of race against him," from which all Negroes are excluded, for a crime against another white man. Morton contended that such a Negro would not have "the equal protection, the equal benefit of the law." Morton concluded:

It is not sufficient to say that the right to sit upon a jury is not a privilege that belongs to a citizen of the United States. That is not the question that we are discussing now. If you say that a man shall not sit upon a jury unless he has so much property, you have a right to say that, because that applies to men of all races alike; but if you say he shall not sit upon a jury because he is a colored man, that becomes class legislation at once, and that class of people are not entitled and do not receive the equal protection or benefit of the laws."

9120

At this point, Thurman asked whether Morton was relying exclusively on the Equal Protection Clause of the Fourteenth Amendment, and the latter replied in the affirmative. The following colloquy then occurred:

"Mr. THURMAN. Then I ask the Senator whether the law of Ohio and the law, I believe of his own State, which requires that a juror shall be an elector is a denial of the right of the persons in Indiana and Ohio who are not electors? Is it a denial of the right of aliens who are not yet naturalized and who cannot sit on a jury?

"Mr. MORTON. No, sir.

"Mr. THURMAN. Then I wish to call the attention of the Senator to the fact that this right is not limited to persons who are citizens. The clause reads: 'Nor shall any State deprive any person'-whether a citizen or not-'of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction'-whether citizen or not-'the equal protection of the laws.' How, then, on the Senator's argument does he keep an alien or a woman off a jury?

"Mr. MORTON. The Senator misses the very idea involved in this amendment; he misses the idea of class legislation. Persons may suffer disabilities; they may sometimes suffer disabilities under a State law for want of property; they may

117 Globe 42/2, 845.

118 Ibid.

119 Globe 42/2. App. 26. Senator George Vickers, a Maryland Democratic lawyer. also said that the Privileges and Immunities Clause did not include the right to sit on a jury. Globe 42/2. App. 41.

120 Globe 42/2, 847.

suffer it for want of legislation; but still there is no class legislation about it; there is no inequality about it. If we read the history of this amendment we shall understand precisely what was meant by it, that it was intended to promote equality in the States, and to take from the States the power to make class legislation and to create inequality among their people. Therefore it provides that no person shall be deprived in the jurisdiction of the State of the equal protection of the laws, of the equal benefit of the laws.

"So far as rights depending upon citizenship are concerned, that is another question not involved at all in this discussion. There are certain rights that do depend upon citizenship, political and civil rights; but they are not involved in this matter, nor do they amount to class legislation . . . where a quarter of a million of people in a State are deprived of the right to sit upon a jury because of their color, are excepted from the equal benefits of the law because of race, I ask whether it would not be broad nonsense to say that they have the equal protection of the laws?"

121

Senator Frederick T. Frelinghuysen, a New Jersey Republican and a former attorney general of that state, also supported the jury clause, adding: “I do not understand that it is the right of a man to be a juror, but that it is the right of a large class that their whole class shall not be excluded from the jury box." 122 The next day, Senator Joshua Hill, a Georgia Republican lawyer, objected to the jury clause on the ground of the penalty. He stated that in his state jurors were selected by local judges, court clerks, or sheriffs, from "upright and intelligent persons," and in some counties there were colored jurors, while in other counties there were none, depending on the opinion of the local officials as to whether there were competent colored persons in the county. He feared that colored persons would sue sheriffs if the judge told them not to summon them as jurors.' Carpenter also once again reiterated his constitutional objections to the jury clause.124 He received support from Senator Henry W. Corbett, an Oregon Republican who wanted to keep Chinese in the West Coast off juries." But Morton once again reiterated his view that Congress could constitutionally prevent racial discrimination in jury selection, which he described as “class legislation" denying equal protection of the laws."

125

123

126

Senator George F. Edmunds, a Radical Republican lawyer from Vermont who had voted for the Fourteenth Amendment, then joined the fray with a rebuttal of Carpenter. He said that it was immaterial that the Fifteenth Amendment had omitted the right to hold office because a juror was not an office-holder, but rather one who performs a public duty like working on highways." Edmunds also analogized the right to be a juror with the right to be a witness, protected under the Civil Rights Act of 1866. He mentioned both the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment as justification for the jury clause. He said that such a law was necessary in southern states because otherwise the jurors who would judge the Negroes would be hostile to them.128 He also declared that it was not necessary for the federal government to organize the state juries itself, in order to enforce the bill, since under the Supremacy Clause of the Constitution a defendant in a state trial where the judge disregarded the law could have his conviction overturned on appeal. Edmunds finally observed:

"I agree that a colored man has no right because he is a colored man, and that a white man has no right because he is a white man, to be called on a particular jury, for one reason which I have already stated, that it is not a place that anybody is entitled to hold; but the point is this: that every citizen otherwise qualified has a right to stand in that class where the law may call him to perform the duty of a citizen in the administration of justice. There is the distinction; and therefore this provision of the amendment of the Senator from Massachusetts does not declare that black men shall be jurors, but it declares that no statute, ordinance, or regulations whatever, shall exclude men because they are

128 Globe 42/2, 900. He said: "Where would be the value of declaring that a colored man should have equal rights of trial by jury and equal rights of judgment by his peers, if you are to say that the jurors are to be composed of the Ku Klux. . . . You are to put him into the hands of his enemies for trial."

black from the common right of all citizens otherwise qualified and in conformity to law to be called on a proper occasion."

129

Edmunds was answered generally, and not in specific relation to the jury clause, by Senator Lyman Trumbull, the veteran Illinois lawyer and legislator who, as Republican Chairman of the Senate Judiciary Committee, had shepherded to passage the Civil Rights Act of 1866, the forerunner of the Equal Protection Clause of the Fourteenth Amendment, and had frequently acted as spokesman and leader of the Senate Republicans in the Thirty-Ninth Congress. Trumbull confined civil rights to those enumerated in the 1866 law.130

131

After some debate the next day on naturalization, during which some of Sumner's Republican supporters readily agreed that Chinese should be kept out at the request of Western equalitarian Republicans,' Senator John W. Stevenson, a Kentucky Democratic lawyer, chided his Republican colleagues for inconsistency. He said that the Senate proposed to make jurors of Negroes but not of Chinese immigrants, and that southern Negroes were lacking in the education, knowledge, experience, and intelligence sufficient to make competent jurors.' Stevenson also endorsed Carpenter's constitutional objections. He rejected Morton's Equal Protection argument, saying:

132

"The Senator from Indiana justifies the constitutionality of this amendment on the ground that the fourteenth amendment demands an equal protection of law to every citizen. He then asks, what show of justice could a black man in Kentucky expect from a jury of twelve white men? *** The life, liberty, and rights of the Negroes have ever been safe in the keeping of Kentucky judges and Kentucky juries. No complaint can be justly had on this score. But if the argument of the honorable Senator be sound, what becomes of a Chinaman who commits murder to-day in San Francisco or Sacramento? What right of justice can he expect from twelve white men prejudiced against him and opposed bitterly to the immigration of his people? And yet the Senator from Indiana was unwilling to extend to the Chinaman the same need of justice which he insists shall be extended to the freedman. To make the honorable Senator's argument sound, there could be by his standard of construction no just protection of law unless white men were tried by white juries and colored men by colored juries; but experience shows the views of the honorable Senator to be unsound and fallacious."

133

134

The Senate then rejected a motion by Stevenson to confine the jury clause to federal courts." A vote on the Sumner amendment to the amnesty bill was then taken, and it resulted in a tie, 28 to 28. The Vice-president then cast an affirmative vote. 155 However, a member of the amnesty bill supporters considered Sumner's measure unconstitutional, and voted against the combined measure for that reason.' The ultimate vote on the combined measure was 33 to 19, less than the necessary two-thirds which amnesty required."

130

On February 19, a bill similar to Sumner's amendment was introduced in the House of Representatives, 138 Congressman Henry D. McHenry, a Kentucky Democratic lawyer, protested the unconstitutionality of the jury clause on the ground that since a state had plenary power to prescribe the qualifications of jurors, it could limit them to white men. Congressman John M. Rice, another Kentucky Democratic lawyer, in the course of a lengthy harangue, protested

129 Ibid.

130 Globe 42/2, 901. Trumbull said:

139

"I believe that any freeman has a right to make a contract. The Senator has been reading from the civil rights bill. It was passed years ago. It was based upon this principle confined exclusively to civil rights and nothing else, no political and no social rights. Here were millions of people in this country who by an amendment to the Constitution of the United States had been made free men, They had no right to buy or sell, to go or come, to contract or be contracted, and no right to enforce contracts; but they had been declared free. What was their condition? Is that a free man? I thought it was not, and I thought under the constitutional amendment which made these persons who had been mere chattels men, we were bound to give them the rights of men. But that did not extend to political rights or to social rights. It was confined exclusively to the rights appertaining to man as man.'