it could, by a parity of reasoning, prevent discrimination based on ignorance of English. 10 This Boutwell admitted, and pointed out that the bill was limited to racial discrimination because that is what was complained of. He placed the constitutional power to pass the bill squarely on the Privileges and Immunities Clause, saying that one of the privileges of national citizenship was the equal right to sit on a jury. He concluded: "all that is claimed under the fourth section of this bill is that you shall not say that a man shall not sit upon a jury because he is a black man or because he is of the German race or because he has been held in slavery, and I might say for other reasons. If for other reasons discriminations were made by the law of any of these States, we might under the 14th Amendment protect men from such discrimination." 101 Morton then answered Thurman by contending that a state could fix any qualifications it wanted for jury duty, but that if it excluded Negro jurors when a Negro was on trial it denied him equal protection of the laws which the 14th Amendment guaranteed because a white jury would be biased against him.** Under questioning, Morton said that a colored man would not be denied equal protection if a state by law provided for an all-colored jury, and a foreigner would not be denied equal protection if tried by a jury of foreigners. But he emphasized that all of the Negroes of a state do not enjoy the equal protection of the laws if a Negro is tried by a jury under a law which excludes Negroes from jury duty. He illustrated the point by reversing the proposition, and saying that if South Carolina excluded all whites from jury duty where white men were defendants, they would likewise claim a denial of equal protection because of prejudice against them on the part of Negroes.18 193 Thurman then rebutted Morton's argument by noting that all persons whatsoever were entitled to equal protection, including women, minors, aliens, Chinese. Indians not taxed, the insane, ignorant, and criminals, but that none of these were allowed to sit on juries. Thurman pointed out: "The Senator says that no class of persons receive equal protection of the laws if they are excluded from the jury-box. Now, the first thing that I have to say to that Senator is that not one woman in all the United States or the Territories thereof, outside of Wyoming Territory, is qualified to sit in a jury-box. Are they not equally protected? . . . When did it come that our mothers and wives and sisters were deprived of the equal protection of the laws? But that is not all. Do not our children under the age of twenty-one years receive the equal protection of the law? Yet not one of them is qualified to sit in a jury-box. 190 Cong. Rec. 43/2, 1792–3. 191 Cong. Rec. 43/2, 1793. 192 Ibid. Morton said: "A State may provide that no man shall sit upon a jury who is not thirty years old. or if you please fifty years old. The State may provide that no man shall sit upon a jury who cannot read or write: that no man shall sit upon a jury who is not worth $500 or $5,000. The State is left perfectly free to fix the qualifications of jurors as she sees proper but by this bill she is restrained from prohibiting any man from sitting upon a jury simply because of his race or color if he has all the other qualifications required by law. If the State requires a juror to be able to read and write, to have been a citizen of the State for two years, to be worth $1,000 in money, this bill would prevent that State from excluding a colored man from sitting upon a jury if he possessed all the other qualifications. That is the point. . . . No State shall deny to any person the equal protection of the laws. Does that simply mean that each man shall e equally protected or have an equal right to be proteeted from an assault and battery, from assassination? Is it confined to that? Not at all. It means in its broadest sense. . that no State shall deny to any man the equal advantage of the law, the equal benefit of the law, Does a State that gives the exclusive right to sit upon juries to white men, give the equal protection of the laws of that State to colored men? I say no. I say no upon the broadest principles of common sense. "Why, Mr. President, one of the most important principles of the common law that has come down to us from our fathers, established in England long ago, was that every man had a right to be tried by his peers. What is meant by that? Tried by his equals, those in the same general condition of society; that you cannot give a higher class the exclusive right to pass upon the rights of a lower class: that they have the right of trial by their peers. And we see how carefully this principle of trial by jury is guarded. We see that no man who has expressed an opinion is allowed to sit upon a jury, and sometimes weeks are spent in getting juries which are perfectly unprejudiced, who have never given an opinion on the case, who have no notion in regard to it. "Now, I ask if with the prejudices against the colored race entertained by the white race, even in some of the Northern States and certainly in all of the Southern States. the colored man enjoys the equal protection of the laws, if the jury that is to try him for a crime or determine his right to property must be made up exclusively of the white race?" 183 Cong. Rec. 43/2, 1794. "I will convince the Senator out of his own mouth. The Senator says that it is perfectly competent for the States to require a property qualification for the jury-box... that they may require, as was formerly required in many of the States and in England, a freehold qualification. But I take the Senator's own illustration: they may require a property qualification of $5,000 in order to entitle a man to be a juror. If they can do that, what becomes of the Senator's argument? Are all men who do not own $5,000 worth of property deprived of the equal protection of the laws?" 194 Thurman noted that if a $5,000 property qualification could be placed on the right to sit on a jury, 99% of the Negroes would be excluded, yet Morton admitted the right of states to do this. He concluded that the right to sit on a jury was in the nature of a political privilege which could be limited to residents or in other ways. Senator William T. Hamilton, a Maryland Democratic lawyer, also interjected that the overwhelming majority of Negroes were illiterate, and since Morton admitted that a literacy qualification could be imposed for jury duty, he wanted to know whether such illiterates were denied equal protection." 195 Morton replied that these points begged the question because property and literacy qualifications had to be imposed without racial discrimination under the 14th Amendment. Hamilton responded that race and color is not mentioned in the amendment. Morton then asked whether colored men had equal protection when the power to try them was placed in the hands of another race, and Thurman answered that they did, just as they had in England or France.196 To this Morton replied: "I ask him whether the colored men of North Carolina have the equal protection of the laws when the control of their right to life, liberty, and property is placed exclusively in the hands of another race of men, hostile to them, in many respects prejudiced against them, men who have been educated and taught to believe that colored men have no civil and political rights that white men are bound to respect. And yet the Senator would tell me that that is giving them the equal protection of the laws. I say no; the common sense of mankind will revolt at that proposition." 197 Morton went on to ridicule the argument of Thurman that because women and children were excluded from juries. Negroes could also be excluded. However, his only reasoning was that it "only requires that proposition to be stated in order that it may be decided." But when Morton turned to a suggestion that a state might prevent a man of foreign birth from sitting on a jury, he said: "And suppose a State should pass a law that no man of foreign birth shall sit upon a jury, what would be the outcry? It would be said that you were denying to men of foreign birth the equal protection of the laws, that you placed the juries exclusively in the hands of native Americans who have prejudices against foreigners, just as white men have prejudices against black men. Would it not be said in that case that you were denying to men of foreign birth the equal protection of the laws because their rights would be liable to the exclusive determination of native-born Americans who had some lingering prejudices against men of foreign birth?" 198 Thurman took Morton to task for being illogical and for making a stump speech instead of analyzing the Constitution. He once again pointed out that women, aliens, travelers, and even poor people could be excluded from jury duty, and yet they are constitutionally entitled to receive equal protection of the laws. He further emphasized that the 14th Amendment does not single out racial discrimination for any special condemnation." 199 Senator Augustus S. Merrimon, a North Carolina Democrat and a former state judge, then entered the fray by observing that no question of policy as to whether Negroes ought to be allowed to sit on juries was involved, but rather a "dry question of constitutional law" as to whether "the Government of the United States [has] any power to regulate the right and authority of the States to determine who shall sit upon juries in the State courts." He declared that Morton's argument did not even tend to establish federal power to prevent jury discrimination, because the right "to sit upon a jury is not a civil right, in a tech nical sense, any more than to hold an office is a civil right." Merrimon noted that the right to protection of life, liberty, and property was a civil right. Turning to Morton's argument that Negroes would not receive such protection from all-white juries because of prejudice, Merrimon declared: "But then the Senator asks, will it be pretended if juries are composed exclusively of white men that the colored people of the South have the equal protection of the laws? I answer without hesitation, 'yes.' What is meant by 'the equal protection of the laws' is this: That whoever administers the law through the courts or anywhere else must administer it to all people without distinction for any ease, according to the constitution and laws of the State where he does administer it. It is no matter whether the officer is a white man or a black man, he is bound to administer it fairly to every man, woman, and child. of every race and color, of every condition in life; and when the law is so administered by the judge or by the jury or by the other officer, whatever kind of officer he may be, that the persons to whom he administers have the equal protection of the law in the sense of the Constitution. "The Senator puts this case: He says suppose in South Carolina, where the colored race have the majority and can control, the Legislature should see fit to pass a law providing that none but negroes should sit on the juries, would there not be a great outcry on the part of the white people? I admit that there would be a great outcry in that case, and there ought to be. I think it would be a great outrage, because the white people are the more intelligent race and they are better qualified to administer the law or power. But if the Senator asks me whether they have power to do so, I answer yes, they have such power. They have the constitutional power to do it. They have not probably the moral right to do it; but they have the constitutional power to do it. Why? Because the right to sit in the jury-box is a political right; it is of that class of rights deemed political, it is in aid of the general administration of the Government. "But suppose that every judge in South Carolina was a negro, suppose that every officer in South Carolina was a negro, every white man would have the equal protection of the laws in the contemplation of the clause of the Constitution under consideration; and why? Because every negro judge, because every negro officer in the State would be bound to administer the law protecting life. liberty, and property to the white man just as he would be bound to administer it to the negro; and if he did not do that he would be guilty of a prostitution of his office, and would be subject to impeachment under the constitution and laws of that State." 200 Merrimon went on to point out that the Fourteenth Amendment protects civil rights but not political rights, and that the failure of the Fifteenth Amendment to protect the right to hold office means that a state may discriminate in the right to hold high state offices, and accordingly can "make a like discrimination as to the office or place of juror." He said that he personally did not believe it prudent to exclude Negroes from jury duty, and his state and most other southern states made no such distinctions. He further declared that Morton's concession that a state could try a Negro with an all-Negro jury or a foreigner with an all-foreign jury admitted the constitutionality of distinctions based on race or nativity. Merrimon concluded that if a colored judge alone could sit on a bench the Equal Protection Clause would not be violated if he administered impartial justice to all.201 Senator Thomas F. Bayard, a Deleware Democratic lawyer, briefly concurred that the jury clause was unconstitutional.202 The next day, February 27, 1875. was the last day of Senate debate. Carpenter arose to attack Morton's argument that exclusion of a class from jury 200 Cong. Rec. 43/2. 1796. 201 Cong. Rec. 43/2, 1796-7. He said: "It means that whoever administers the laws through the political instrumentalities of the Government, in administering the laws shall give him that equal protection for his life. his liberty, and property which every man is entitled to: and if the judge is a negro. he is bound because he is a judge-not because he is a negro-if I shall be brought before him to be tried in the matter of my life, liberty, or property, to administer the law the white man to me just as he would to one of his own color or any other color. could not say that he did not have the equal protection of the law in contemplation of law because all the officers were negroes. All he could ask would be that the negre judge should administer the law to him fairly and justly and if he should allow his color or a white man's color to prejudice his judgment unjustly, he would be a false officer and would be subject to impeachment and to be degraded from office and deserve the execration of every good man.' Id. at 1797. 202 Cong. Rec. 43/2, App. 105. 204 service violated the Equal Protection Clause of the Fourteenth Amendment. He, too, pointed out that if Morton's argument were valid "then this bill ought to be so amended as to provide that women and babes at the breast should be so eligible; because they are persons equally with colored citizens entitled under these two clauses of the amendment to everything secured to colored citizens." 203 Carpenter explained the distinction between privileges derived from national citizenship and those derived from state citizenship, and quoted with approval from the Slaughter-House Cases. He cited the then recently decided case of Bradwell v. State for the proposition that one has no right by virtue of being a citizen to practice law, and therefore be contended that one had no right to serve on a jury by virtue of his citizenship. Moreover, he pointed out that no residence requirement could be imposed for jury duty by the states if such right was derived from national citizenship."" As for the Equal Protection Clause, he endorsed Thurman's argument that aliens and convicts are also protected by it and would have to be allowed to serve on juries if Morton's argument were sound. In concluding that the bill was unconstitutional, Carpenter observed: 205 "And if the Senator's argument establishes the right of every person in the State to serve as a juror, is it not manifest that it also establishes his right to participate in making and construing the laws? And yet it is well known that in proposing the fifteenth amendment, *** Congress purposely excluded the right to hold office *** I can conceive of no argument based upon the fourteenth amendment establishing the right to serve as a juror which does not also establish the right to serve in the Legislature and hold any State office. And this, in view of the fifteenth amendment, must be regarded as a perfect reductio ad absurdum." ,, 200 Morton then retorted that he did not mean that every man was entitled to sit on a jury, or was denied equal protection if he was barred. He said that states could prescribe such qualifications as they might choose, as long as no discrimination was based on race or color, because that would place "the adjudication of their rights exclusively in the hands of another race, filled with a prejudice and passion in many States that would prevent them from doing justice." Morton noted that formerly in England Jews were not allowed to sit on juries, and they suffered great wrongs in the courts. He asserted that this denied English Jews the equal protection of the laws. He re-emphasized that states could prescribe such qualifications as they desired, as long as they applied to all racial groups. Morton observed in conclusion: 207 "I simply want to make one remark about the history of this question as applied to the Jews in England. The adjudication of their rights was placed exclusively in the hands of the Christians, at that time bitterly prejudiced against the whole Jewish sect and persecuting them upon all occasions. If they had had the right to sit upon juries, then indeed they would have had, so far as that was concerned, the equal protection of the laws. My friend said that my position required babies at the breast to be authorized to sit upon juries. I do not know how to answer an argument of that kind. I do not know how to meet that; but if there is any force in it, I may be allowed to say that if you allow a white baby to be placed upon a jury and do not allow that to the black baby, you are thereby creating an inequality. "But what force is there in such an argument about minors when it all countries there are laws fixing the time when they shall come to their majority and exercise civil and political rights? That results as of necessity from nature. Consequently there is no force in an argument of that kind. I come back to the simple proposition that in the State of South Carolina, with all the prejudice and passion of the whites against the colored men, to place the administration of the law exclusively in the hands of white men is to deny to colored men an equal protection of the laws. It is an argument so clear that it seems to me no argument whatever can be made against it." 208 Next, some colloquy occurred between Morton and two Democratic lawyers, Senators William W. Eaton of Connecticut and John B. Gordon of Georgia. Cong. Rec. 43/2, 1861-2. 294 16 Wall. 130 (1872). Carpenter noted that he had been the unsuccessful attorney in this case. 205 Cong. Rec. 43/2, 1862–3. Gordon asserted that the Privileges and Immunities Clause inhibits only state laws, and none discriminating against Negroes were in existence in Georgia. Morton said that under the Fifth Section of the Fourteenth Amendment Congress could prevent them from being enacted. Eaton observed that in Connecticut local officials could select such jurors as they pleased, and hence the civil rights bill was valueless. Morton replied that they might select some Negroes if a state law did not prevent them from doing so." Senator John A. Logan, an Illinois Republican lawyer who supported the bill, also told Eaton that if his state had no law preventing Negroes from serving as jurors, the bill "would have no effect in his state at all." 210 209 Senator William T. Hamilton, a Maryland Democratic lawyer, then spoke on the confusion in constitutional theory behind the bill. He noted that the first section used "citizen" and "person" interchangeably. Moreover, referring to the jury clause, he observed that Boutwell relied on the Privileges and Immunities Clause while Morton relied on the Equal Protection Clause. Averting to Boutwell's stand that Congress could prevent any discrimination in jury selection aside from race or nativity, Hamilton pointed to numerous grounds for discrimination, such as age, sex, education, commission of crime, and residence. The result of this reasoning would be that Congress could demolish all state laws, a power not contemplated by the Fourteenth Amendment according to Hamilton.1 He then proceeded to refute Morton's equal protection argument by noting that the latter had conceded that discrimination in jury selection may be based on poverty, illiteracy, citizenship, and residence, even though some of these grounds were "most obnoxious and unjust," and would eliminate the vast majority of Negroes. Hamilton reasoned that since the Fourteenth Amendment does not mention color, there is no more reason why racial discrimination in jury selection should be banned than any other form of discrimination. He concluded that jury selection was exclusively under state control. He also declared that if Congress could punish discrimination by sheriffs or judges in selecting jurors it could punish a voter who cast his ballot for racial reasons. Hamilton argued that the Fourteenth Amendment gave Congress no such power." 212 213 Edmunds then arose to rebut Thurman. He said that if a juror was akin to a public officer then the latter's constitutional argument would have merit, but since a juror was like a witness, "called in on the spur of the moment to perform a particular duty," the argument based on analogy to the right to hold office failed. Edmunds said that the right to be a juror was analogous to the right to be a witness, which was protected by the Civil Rights Act of 1866, and that if "a man has no right to stand equal with his fellow citizens in respect of taking the chance under the law that he may be drawn as a juror because he is of a particular race or of a particular color," then "the same argument would apply to religion, to nativity, to political opinion." Accordingly, Edmunds reasoned that if a state could exclude Negroes from juries it could exclude Roman Catholics or Presbyterians, and bar Negroes or persons of German extraction from suing in court Edmunds concluded: "If it can be made out that a jury-man is an officer under the Constitution and the laws, then you can say under the fifteenth amendment principle that the right to hold office is not guaranteed to all citizens alike. But as I say .. there has never been a time in the history of jury trials when a juror was anything like an officer. He is no more than a witness, and the first jurors . were witnesses, and they were summoned because they knew about the matter to be tried." 214 Thurman replied by accusing Edmunds of dealing in generalities. He emphasized that the Republicans admitted that a state may discriminate on the basis of education, language, and property, but drew a line on race and color. He re-. iterated that the Fourteenth Amendment drew no such distinction, adding: "Now, we are not on the question of whether such a discrimination is absurd or not. . . . We are not upon the question whether such a discrimination is 209 Cong. Rec. 43/2, 1864-5. Morton observed: "If we pass this law, then that part of the State law which prevents him from doing it [selecting Negro jurors] is overruled, and if the officer is disposed to act fairly he has the legal power to act fairly." Id. at 1865. 210 Cong. Rec. 43/2. 1865. 211 Cong. Rec. 43/2, App. 113-4. 212 Cong. Rec. 43/2, App. 114. |