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at least 3 months, (2) be in possession of his natural faculties, (3) have sufficient knowledge of the language in which the proceedings of the courts are had (with the exception of certain counties), (4) have had assessed on the last assessment roll of the township or county on real or personal property or both, belonging to him, if a resident at the time of the assessment. (California General Laws, 1850–1864,
In Florida, all jurors were required to be free, white, male citizens of the United States; householders, inhabitants and residents of the State, above the age of 21 years and under 60 years (Florida Digest of Laws, 1847, p. 344).
Oklahoma required her jurors to be male residents, qualified electors over 21 years of age and of sound mind and discretion (Oklahoma Laws, 1907, 1908, p. 467).
Oregon and Michigan both required their jurors to be electors. (Oregon Stat. 1853, p. 166; Michigan Rev. Stat. 1838, p. 35, 429.)
Montana required jurors to be taxpayers (Montana Compiled Statutes 1887, p. 1008). New Mexico required jurors to be owners of real estate and head of a family (Laws 1865, p. 496).
Down through the years, it has always been the law that the qualifications of jurors in State courts are matters of legislative control, subject only to the 14th amendment (United States v. Roemig, 52 F. Supp. 857; Hoxie v. United States, 15 F. 2d 762; Tynam v. United States, 297 Fed. 177).
In the Federal courts, Congress may determine such qualifications. State legislatures determine the qualifications in State courts.
In my State, jury commissioners select from the books of the tax receiver “upright and intelligent citizens" to serve as jurors.
The late Justice Warren Grice of our supreme court, who was for many years one of my law partners, wrote on the subject in Watkins v. The State, 199 Ga. 81, 95. He used language which is still worthy of consideration. By the way, Justice Warren Grice has a son, Justice Benning Grice, who is now sitting on the Supreme Court of Georgia.
Jury service is not a right, nor a privilege; but a burden which the State summons certain of its citizens to bear. In the administration of justice with us, issues of fact are submitted to a jury. Mr. Justice Black in Smith v. Texas, supra, (311 U.S. 128) remarked that, "It is a part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community."
Justice Grice continues:
No such tradition has been established in Georgia. In every community in this State, as in every other State, there are idiots, insane persons, men enfeebled by age, vagabonds, and also men of bad character, white and black. We in this State exclude all such from jury service. We also exclude (1945) females and minors.
That was in 1945. Our juries, therefore, are not bodies “truly representative of the community." We go further. We impose the burden only on those who are upright and intelligent, and not upon all of them. We leave it to the discretion and judgment of the jury commissioners to place on the jury list such of these as in their opinion constitute a sufficient number of carry on the work required of juries. Under our system, the jury is not, therefore, necessarily a cross section of the entire community, but a chosen body selected from a larger number to assist in the administration of justice.
It was after that that the Thiel case, which was referred to by the Attorney General in his statement before the House committee was decided. Not Thiel v. Union Pacific, but Thiel v. Southern Pacific R. Co., 328 U.S. 217—it is important to note that.
That case pertained to the composition of juries in the Federal courts and announced the rule that prospective jurors should be selected by court officials without systematic and intentional exclusion of any economic, social, religious, racial, political, and geographical group of the community.
In that case, as Justice Frankfurter pointed out in his dissent (328 U.S. at p. 227) no constitutional issue was at stake. The sole question was whether the established practice in the northern district of California not to call for jury duty those otherwise qualified but dependent on a daily wage for their livelihood required the reversal of a judgment which was inherently without a flaw.
The Court decided six to two that it did.
This Congress has a perfect constitutional right, if it so desires, to write into the Federal statutes the principle of that decision and so prescribe a rule for the composition and selection of juries in the Federal courts.
It has a perfect right, if it so desires, to provide for a jury commission (sec. 1863) and compel that jury commission to maintain a master jury wheel, and to place in it "names selected at random from the voter registration lists" (sec. 1864).
Probably realizing that those lists may now contain names of those whom the State may not subject to literacy tests, the drafters prescribe some qualifications for jury service (sec. 1866) which shall be determined by the jury commission solely on the basis of information provided on the juror qualification form or a returned summons (sec. 1865). (At this point Senator Javits entered the hearing room.)
Those qualifications would debar certain people (sec. 1866(b)), Among those debarred from jury service would be a person convicted in a State or Federal court of a crime punishable by imprisonment for more than 1 year whose civil rights have not been restored by pardon or amnesty.
It would make no difference that he had been many times convicted of various misdemeanors. He would still be qualified to pass on the life, liberty, or property of persons prosecuted or litigating in Federal courts.
If the Congress desires juries so composed to act in the administering of justice in the courts it has ordained and established, Congress has that power. Such juries will sit in the North as well as the South, in the East as well as the West.
But I suggest to you that today, when the courts are so zealously and jealously guarding the right of trial by jury, it does seem to me that the Congress would be of the mind to strengthen the jury system rather than weaken it. Those juries ought to be so composed as to be equipped to decide intelligently as well as numerically the questions which are presented to them. A jury composed of people without sufficient intelligence to understand the instructions given in charge by the presiding judge is no jury. When the Constitution preserved and guaranteed trial by jury it contemplated trial by a jury whose members were equipped to determine the questions submitted to them. Due process so requires.
A person may be able to read, write, speak, and understand the English language (sec. 1866(2)) as required by the bill, and yet not be able to add 2 and 2, or know the meaning of the simplest terms which recur in the trial of the simplest law suit.
Even as applied to Federal courts, this bill is just another step in the process of establishing a government of the ignorant by the ignorant, for the ignorant.
Of course, it will be quite a boon to the Department of Justice to be able to try income tax cases and condemnation cases and antitrust cases or any other cases involving the property of citizens before s jury composed of those dependent of their subsistence on payments of one kind or another from the Government. But will that boon tend to promote impartial, complete administration of justice? So much for the juries in Federal courts.
Title II presents very different questions. Its basis is section 201: No person or class of persons shall be denied the right to serve on grand and petit juries in a state court on account of race, color, religion, sex, national origin, or economic status.
In the first place a person has no "right" to serve on any jury. Jury service is a privilege conferred by the State upon such of its citi. zens as it deems worthy of the privilege of participating in the administration of justice.
It is no more a right than is the privilege or license of engaging in the practice of law or medicine, or of practicing as a barber, beautician, embalmer, or plumber. The State may require certain qualifications in those whom it permits to affect the health, safety, and general welfare of its citizens—and it may require qualifications deemed necessary by it to be possessed by those to whom it entrusts the life, liberty, and property of those within its jurisdiction.
The right of a State to establish those qualifications existed when the Union was formed. The right was reserved to it by the 10th amendment.
The right may now be exercised as the judgment of the State dictates unless it has been restricted by an amendment later than the 10th.
Does the 14th amendment give to Congress the right to enact a statute providing that a State may not restrict the privilege of jury service to males?
Does it give to Congress the right to enact a statute providing that a State may not consider the economic status of its citizens in determining their qualifications for jury service in courts of the State?
Those are the great questions which this bill in title II involves.
Strauder v. West Virginia, 100 U.S. 303, was one of the very first cases decided construing the 14th amendment. The Court there held thatcompelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respectsis a denial to him of equal legal protection. That has been the law since It was in this case, that, too, the Supreme Court said: We do not say that within the limits from which it is not excluded by the Amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the 14th Amendment was ever intended to prohibit this (p. 310).
Contemporaneously, the Court held that that did not mean that every colored man had a right to be tried by a jury composed in part of colored men.
l'irginia v. Rives, ibid, page 313.
When it was the “law of the land” that the first 10 amendments to the Federal Constitution contain no restrictions on the powers of the State, but were intended to operate solely on the Federal Government, the Supreme Court (1899) decided the case of Brown v. New Jer. sey (175 U.S. 172).
This case dealt with the validity of what was known to the New Jersey statutes as a “struck jury.” These statutes provided for a method of choosing a jury from a panel.
In the course of the opinion the Court said:
The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution.
"The 14th Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own method of judicial proceeding.”
*** The State is not tied down by a provision of the Federal Constitution to the practice and procedure which existed at the common law. Subject to the limitations heretofore named it may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary. For instance, while at the common law an indictment by the grand jury was an essential preliminary to trial for felony, it is within the power of a State to abolish the grand jury entirely and proceed by information. Hurtado v. California, 110 U.S. 516. In providing for trial by a struck jury, impaneled in accordance with the provisions of the New Jersey statute, no fundamental right of the defendant is trespassed upon. The manner of selection is one calculated to secure an impartial jury. “The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more" (op. cit. p. 175).
Even if under more recent adjudications of the Supreme Court, the sixth and seventh amendments now apply to the States, the legal situation would not be changed for property owning and taxpaying qualifications were not forbidden by the common law. As I have shown, many of the original 13 States had them.
As late as 1946, the qualifications of Federal court jurors were determined under State law. (28 U.S.C.A. old sec. 411.) Undoubtedly the sixth and seventh amendments applied to the United States but such application was not deemed to have any effect on their adoption of the State law. (See Ballard, et al. v. United States, 329 U.S. 187 (1946).)
In 1948, old section 28-411 of the United States Code was revised so as to prescribe (sec. 28-1861) uniform standards of qualifications for jurors in Federal courts instead of making qualifications depend upon State laws.
Even that revision had a provision (sec. 28–1861 (4)) that one could not serve as a Federal juror if he was incompetent to serve as a grand or petit juror by the law of the State in which the district court was held.
In 1957, that section was amended by eliminating that provision.
The next year it was decided that Congress has authority to set up qualifications for Federal jurors without regard to qualifications that may be set up by State legislatures of the States wherein the Federal district courts sit. United States v. Wilson, 158 F. Supp. 442, affirmed 255 F. 2d 686, cert. denied 358 U.S. 865, 79 S. Ct. 97.
Fay v. People of the State of New York, 332 U.S. 261, was decided in 1947.
The opinion of the Court contained this language; this is New York we are talking about:
The function of this feder Court under the 14th Amendment in reference to state juries is not to prescribe procedures but is esesntially to protect the integrity of the trial process by whatever method the state sees fit to employ. No device, whether conventional or newly devised, can be set up by which the judicial process is reduced to a sham and the courts are organized to convict. They must be organized to hear, try and determine on the evidence and the law. But beyond requiring conformity to standards of fundamental fairness that have won legal recognition, this Court has always been careful not so to interpret this Amendemnt as to impose uniform procedures upon the several States whose legal system from diverse sources of law and reflect different historical influences.*
More recently (1961) the Court has decided Hoyt v. Florida, 368 U.S. 57, wherein at pages 59–60, the Court said—it is particularly important on account of the provision in this bill as to sex:
“We of course recognize that the 14th Amendment reaches not only arbitrary class exclusions from jury service based on race or color but also all other exclusions which "single out” any class of persons “for different treatment not based on some reasonable classification."
It was in that case that the Court said:
We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from
3: “While English common law is the source from which it often is assumed a uniform system was derived by the States of the United States, it must not be overlooked that many of them have been deeply influenced by Roman and civil law to which their history exposed them. None of the territory west of the Alleghenies was more than briefly or casually subject to common law before the Revolution. French civil law prevailed in most of the Ohio and Mississippi Valleys from their settlement until Wolfe's decisive victory before Quebec in 1763. Its ascendancy in the north then was broken, and in 1803, the Louisiana Purchase ended French sovereignty in the rest of the Mississippi area. Louisiana continues, however, a system of law based on the Code Napoleon. The Southwest and Florida once were Spanish See Colvin. Participation of the United States of America with the Republics of Latin America in the Common Heritage of Roman and Civil Law, 10 Proceedings of the Eighth American Scientific Congress 467.
"Even among the early seaboard States, the English common law had rivals. The swedes on the banks of the Delaware held one of the earliest jury trials on this continent. The Governor followed Swedish law and custom in calling to his aid in judging 'assistants who were selected from among the principal and wisest inhabitants' and were both judges and jurors and sometimes witnesses. See 1 Johnson, The Swedish Settlements on the Delaware (1911) 450 et seq. In New York, there was a deep and persistent influence from Roman and Dutch law. Upon capitulation of New Amsterdam, it was stipulated that certain Dutch law, and judgments and customs should be respected. But even beyond this, in the organization of the courts the Dutch rule persisted although contrary to the 'Duke's Laws' enacted by the conqueror. The history of the early Dutch influence in New York court procedure was preserved by the diligence and foresight of Judge Daly. 1 E. D. Smith's Reports (New York Common Pleas) xvii, xxxiv, xxxvii. The Roman-Dutch element in New York law is recognized by its courts, e.g. Dunham v. Williams, 37 N.Y. 251, 253 : Van Giessen v. Bridgford, 83 N.Y. 348, 356 ; Smith v. Rentz, 131 N.Y. 169, 175, 30 N.E. 54, 15 L.R.A, 138."