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placing Negroes on juries to try white persons because the Negroes were prejudiced against whites and the latter would not get a fair trial.'
On May 8, the Senate returned to amnesty, and Sumner immediately moved to add his civil rights bill to the amnesty bill which the House had passed.142 After Trumbull had declared that civil rights which Congress could protect were limited to those in the 1866 statute, Sherman reminded him that Sherman and others had followed Trumbull's lead in the passage of the 1866 Act which Trumbull had authored and shepherded to enactment, and stated that Sumner's bill simply carried out that act." He declared that this bill was necessary because that act "does not protect the colored people in their right to have some of their own race, if necessary, sit in the jury; they claim that their own race should not be discriminated against in the selection of jurors." 144 Carpenter simply reiterated that the jury clause was unconstitutional, and that he had received letters from some of the ablest lawyers and judges in the country saying so."
Carpenter then moved to strike out the jury clause. In reply to his constitutional scruples, Sumner asserted that it was constitutional, but added : “If it is not constitutional, then it cannot be in force." To this Senator Eugene Casserly, a California Democratic lawyer and former Corporation Counsel of New York City, replied : “He has just discovered the only reason I ever heard given that I thought had any soundness in it for passing an unconstitutional law, namely, that when it is passed it will be void ; that is to say, it will be unconstitutional.” (Laughter] To this Sumner reiterated that he thought the law constitutional, but: "Even suppose this is unconstitutional * * * as I say, it will not be enforced; it will fail.” Carpenter answered that he had sworn to support the Constitution and could not vote for anything unconstitutional. Sumner had the last word: "I have also sworn to support the Constitution, and it binds me to vote for anything for human rights." A vote was then taken, and Carpenter's union failed by 33 to 16. The majority were all Republicans. Carpenter carried five other Republicans with him; the rest in the minority were Democrats. Trumbull, who had been absent on the vote but who returned, also asserted a dim view of the jury clause. 147 At length, when a vote was taken on annexing Sumner's bill to the amnesty bill, it resulted in a tie, 29 to 29. The vice-president broke the tie in Sumner's favor. 148
After a second vote on annexing Sumner's measure to the amnesty bill resulted in a 28 to 28 tie, the vice-president once again voted in Sumner's favor.14 However, a number of supporters of the amnesty bill, including Trumbull, who thought that Sumner's bill was unconstitutional, voted against the combined measure, and the vote of 32 to 22 was enough to defeat the measure because it required a two-thirds vote.16
Several days later, Trumbull declared that Sumner's bill was "unconstitutional in its provisions." He also added :
“But these are rights that are created by legislation in the various localities and States, if you please, just like the right to sit upon a jury. That is not a civil right, and it is a misnomer to call these civil rights, because civil rights are the rights which appertain to the individual as a citizen, and which he has wherever he goes."
Carpenter finally broke the deadlock by bringing up an independent civil rights bill during an evening session while Sumner was out of the Senate chamber.1 He moved an amendment eliminating the jury clause. 164 One Republican opposed the Carpenter substitute as "entirely emasculated and rendered practically useless," but Senator John A. Logan, an Illinois Republican, noted that “a provision
140 Globe 42/2, App 598–9.
145 Globe 42/2, 3196. See also the general attack of Senator Eugene Casserly, a California Democratic lawyer, on the constitutionality of the bill. Globe 4272, 3196, 3249.
146 Globe 42/2, 3263.
in reference to jurors in the other bill ... probably prevented several Republic cans from voting for the bill,” and supported the Carpenter substitute because "that would not have interfered with the laws of the States." The Carpenter amendment was carried by a vote of 22 to 20, with a bare quorum of the Senate present. Voting in the majority were thirteen Democrats, one southern Republican, and eight northern Republicans, from California, Illinois, Iowa, Kansas, Maine, Oregon, Pennsylvania, and Wisconsin. Probably the most significant vote for the substitute was cast by Morrill of Maine, a Radical who had voted for the Fourteenth Amendment. The minority were all Republicans." The Carpenter bill, shorn of the jury clause, then passed by a strict party-line vote of 28 to 14,
The Senate then renewed consideration of the amnesty bill and debated it until the next morning when Sumner reappeared. He moved to attach his bill to the amnesty bill, protesting the "emasculated civil rights bill" adopted while he was absent the previous night. He protested that “justice will find a new impediment in the jury-box," and pleaded against “that injustice which is now installed in the jury-box." But his plea went unheeded. The Senate voted down his amendment by 29 to 13, and then passed the amnesty bill by 38 to 2, with only Sumner and a western Radical voting in the negative." Sumner's disappointment was keen, and be proclaimed that his Republican colleagues had sacrificed the rights of the Negroes. But they told him plainly that the limited bill was all that he could expect at that session, and the bill died for that session and Congress.
E. SUMNER'S BEQUEST
In the fall election of 1872, the pressure was taken off Congress to obtain the Negro vote by the re-election of President Grant. Moreover, in 1873 the Supreme Court decided the Slaughter-House Cases, which reminded the lawyers in Congress that the Fourteenth Amendment, and especially the Privileges and Immunities Clause, did not radically expand the federal government's powers. Since the jury clause of the civil rights bill required judicial enforcement, its constitutionality would be subject to Supreme Court review. Sumner's Declaration of Independence arguments would no longer work; a better constitutional basis had to be found.
At the opening of the session, Sumner once again introduced his bill. Once again Morrill of Maine, and Senator Orris F. Ferry, a Connecticut Republican lawyer, attacked it as unconstitutional generally.180 In the House of Representatives, where the Judiciary Committee reported out a civil rights bill without a jury clause, Congressman Alonzo J. Ronsier, a South Carolina Negro Republican ex-shipping clerk moved to amend it by adding a section forbidding racial discrimination in juries." Congressman James H. Blount, a Georgia Democratic lawyer, declared that jurors in federal court were ignorant and prejudiced against white persons in his state.ie
Congressman William H. H. Stowell, a Virginia Republican carpetbagger and non-lawyer, demanded "equality" in the “jury-box." He said :
"Every colored man suing for his wages brings his case before a jury who are prejudiced against him because of his color. Every colored man tried as a criminal appears before a jury who are inclined to believe him guilty because of his race, and in both cases the fear of an adverse judgment may be held over him to force him to vote with that party which has been his constant and implacable foe. Such cases are by no means rare and their influence upon a poor friendless man recently a slave, and coming from the former master, can be readily imagined. The moral courage displayed by the colored man under these persecutions has been wonderful. They have lived in the constant faith that the republican party would give them exact justice and enable them to make
185 Globe 42/2, 3735.
160 2 Cong. Rec. 10–11 (43rd Cong., 1st Sess., 1873) (hereinafter referred to as Cong. Rec. 43/1).
161 Cong. Rec. 43/1, 407.
162 Cong. Rec. 43/1, 411. He also said : "how is it to be expected that if juries will not convict in State courts, they will be more virtuous in Federal courts? Is the manner of selecting jurors to be so devised as to secure men in sympathy with these prosecutions?"
a fair trial, free from persecutions ... This bill will enable them to make that trial.”
Debate began on Sumner's bill on January 27, 1874 in the Senate, and several Senators expressed doubts about the constitutionality of portions of it, including some Republicans who had voted with Sumner previously.ie Edmunds asked what would happen if a person were convicted of murder by a jury which was drawn in a discriminatory manner, and whether the verdict could be set aside, or if a person were indicted by a grand jury chosen contrary to the bill's provisions. Sumner said this did not have to be considered because the officer choosing the jury would be penalized, but Senator Timothy 0. Howe, a Radical Republican of Wisconsin who had been a state supreme court justice, interjected: "it would be cause for challenge to the array.' Sumner then stated that although other Senators might doubt the constitutionality of the jury clause, he did not. He once again drew an analogy between Congress' right to open the courts to colored witnesses, and its right to require non-discrimination in juries.16
Edmunds then warned :
"No doubt Judge Trumbull saw, as I think any Senator who has been bred to the practice as well as the theory of the law would see, on looking at the fourth section of this bill in particular ... that if you were to pass that as it stands as a law, you would furnish a cause for challenge to the array of every grand jury in the country where the laws of the State do not harmonize with the laws of Congress; and even if it turned out that this fourth section were constitutional, there being no provision in the State law for drawing a grand jury otherwise than according to its forms, and there being no provision in the law for carrying out its principles in respect to calling a grand jury to try crimes, you would have cut off both the hands of justice in protecting the very people you desire to defend. I am not in favor of legislation of that kind." 107
He added that he believed that Congress had power under the Fourteenth Amendment "to require that colored men shall sit upon juries." But he wanted not merely a penalty imposed on state officers who disobeyed the law, but also some machinery to make certain that proper juries are called. He said: "It is no comfort for a man to be hanged by a jury which is not composed as the law and Constitution require it to be composed, supposing this to be constitutional, and then to be told afterward that the law had omitted the necessary machinery to make that right effectual. That my point.” After that, the bill was referred to the Judiciary Committee, with Morrill of Maine still reaffirming his belief that it was unconstitutional."
16 Cong. Rec. 43/1, 427. He also said :
“Our Sate constitution provides that every voter shall be eligible as a juror , yet a democratic Legislature has for four years so perverted the spirit of that constitution that the colored man has been practically excluded from the jury-box. Although our State constitution has been adopted for four years, yet ninety-nine out of every hundred colored men have never been summoned upon a jury." Id. at 428.
Congressman Richard H. Cain, a South Carolina Negro Republican, also observed that "our rights will (not) be secured until the jury box, those great palladiums of our liberty, shall have been opened to us." Cong. Rec. 43/1, 566.
184 Cong. Rec. 43/1, 945–7.
"The original civil-rights bill, declares that no evidence shall be excluded from any court of justice, national or State, on account of color. The nation has undertaken to regulate the testimony not only in its own courts, but in State courts; and will any one pretend that it may not regulate the jury in State courts, when it may regulate the testimony in State courts? Why, sir, there is nothing in the Constitution touching testimony, but there are no less than three distinct provisions relating to trial by jury; and among other terms employed is an impartial jury,' which is among the privileges and immunities of the citizen. And is it wrong for Congress to declare that there shall be an impartial jury in all tribunals, whether national or State, without regard to color? Having begun by regulating the testimony, where is the argument which is to prevent us from regulating the jury? I need not remind my excellent friend that originally the witnesses and the jury were almost one and the same. "Mr. EDMUNDS. They were precisely the same.
*Mr. SUMNER. Very well ; so much the better; and the Senator knows that there is a phrase handed down to us from English courts hy which we are reminded constantly of the 'witness-box' and the jury-box.' So closely were they together, that they come under a common nomenclature. Now I insist that they shall come under a common safeguard."
167 Ibid. 168 Ibid.
1° Cong. Rec. 43/1, 949, 951. See also Thurman's assertion that the whole bill was unconstitutional. Id. at 3455.
On March 11, 1874, while the Judiciary Committee was considering the bill, Sumner died. His last words asked for the passage of the civil rights bill. 1* On April 29, Frelinghuysen reported the bill on behalf of the Judiciary Committee, and narrowed its constitutional basis to the Equal Protection Clause of the Fourteenth Amendment. He three times emphasized that the "bill therefore properly secures equal rights to the white as well as to the colored race.” 111 He pointed out that jurors were not officers, historically in England or in the United States, and then declared :
"A law which should exclude all naturalized citizens of the United States from the jury-box would deny to naturalized citizens the equal protection of the law. Is it equal protection, that from the tribunal that is to pass on one's life, liberty, and property those who would naturally have an interest in him shall be er. cluded?
"A State may make such qualifications of jurors as it pleases. It may require that they be freeholders; that they read and write; that they submit to an examination in the rudiments of law. But when a State says one class of citizens of the l'nited States shall be tried by a jury which is or may be composed in part or in whole by those of their own blood, and that another class of citizens of the United States shall never be tried by a jury that has one of their race upon it, I submit the discrimination violates a fundamental right of a citizen of the United States, and denies them the equal protection of the laws.' " 112
On May 20, the Senate resumed consideration of the civil rights bill, and Senator James W. Flanagan, a Texas Republican lawyer stated that many Texas judges were prejudiced against Negroes, and would not rule fairly, and without the bill "You would never hear of a colored man sitting upon a jury in a Southern State. ..."
Senator Lewis V. Bogy, a Missouri Democratic lawyer, however, protested inclusion of the jury clause.
During the last day of debate, May 22, in an all-night session, Senator William T. Hamilton, a Maryland Democratic lawyer, in the course of a long speech also attacked the jury clause. He first pointed out that voters could refuse to vote for candidates for public office based on race or color without violating the Fourteenth Amendment, and asked why those in charge of selecting juries, by the same reasoning, could also not discriminate. He then noted that state governors and even the President of the United States could refuse to appoint officers on racial grounds without penalty." Coming to proof of discrimination on the part of the local state judge who selects jurors, he explained :
“We have colored men in my county, but the judge has not selected any for jurors. White men are selected. The judge has the right under the limitations of (state) law to select whom he pleases, and without regard to color or race .. how are you to convict him under this provision? Upon what evidence is it to be done? There are seventy-five hundred voters in my county, and a thousand or twelve hundred of them perhaps are colored men. How are you to sustain the charge? The judge of course in making his selection will not announce that he selects the jurors for the reason that they are white men, or does not select others because they are black men. How are you to get up a case? Is it to be based upon the one single fact that you did not select colored men when you could have done so? No; the only result of all is that you may get him into trouble, and without any avail to your theories . . . It will be said-no, it is to be inferredwhen a judge selects man for the jury, and does not select any colored men, that it was because they were colored men. You have colored men in your States. I will not be so uncharitable as to infer that the honorable Senator does not give them office, or help send them to Congress . . because they are colored men Shall I infer against you, or shall I rather decide, that you have better white men and enough of them to fill all positions? How are you to carry it out with any decent regard for the right of judgment? ..."
Carpenter reiterated his oft-stated objections to the constitutionality of the jury clause. He observed : “I know of no more power in the Government of the United States to determine the component elements of a State jury than of a
170 Cong. Rec. 43/1, 4786. See also Cong. Rec. 43d Cong., 2d Sess. 952 (Cong. Thomas Whitehead).
171 Cong. Rec. 43/1, 3451.
State bench or of a State Legislature." However, when a motion was made to strike out the jury clause from the bill, only two Republicans voted with the Democrats, and it lost, 28 to 15.178 The bill then passed, 29 to 16, with only three Republicans voting with the Democrats in the negative."
The House took no action on the bill for that session. A Tennessee Republican lawyer, however, questioned the constitutionality of the jury clause."
F. THE CIVIL RIGHTS ACT OF 1875
The elections of 1874 were an absolute disaster for the Republican Party. Although the Senate remained Republican by a much reduced margin, the House of Representatives completely changed political complexion and became overwhelmingly Democratic, 181 Although the opposition made major gains on issues of the depression, fraud, corruption, and other scandals, it also was much assisted by widespread opposition to the civil rights bill, and especially the school clause. 183
When the “lame-duck" Second Session of the Forty-Third Congress met in the early part of 1875, it was the House that first took action on the civil rights bill." Congressman John R. Lynch, a Mississippi Republic Negro photographer made a lengthy speech, in the course of which he attacked Carpenter's views, and defended the constitutionality of the jury clause, with some observations which could not but have exhibited his photographic talents by comparison. He said that Congress (ould prohibit any state from discriminating based on race or color in voting, holding office, or serving on juries, without mentioning that the provision respecting officeholding was specifically stricken from the draft of the Fifteenth Amendment." Congressman J. Ambler Smith, a Virginia Republican lawyer who opposed the bill, briefly challenged the constitutionality of the jury clause. 16 But because of the controversial school clause, little attention was paid to the jury clause in the House. Ultimately, the school clause was struck out, and the bill passed the House by a vote of 160 Republicans and two Democrats to 88 Democrats and 11 Republicans, all but one of the latter being from a southern or border state."
Debate in the Senate began with an attack by Thurman on the constitutionality of the jury clause. Taking the provisions of the First Section of the Fourteenth Amendment up one-by-one, he first declared that the provision defining who were citizens did not confer the right to sit on juries, because otherwise women, minors, and persons unable to understand English could serve on a jury. From this it followed that it was not a privilege of national citizenship to sit on a jury, and the Privileges and Immunities Clause did not apply. He also asserted that a person not allowed to sit on a jury is not deprived of either due process of law or equal protection of the laws."
Senator George S. Boutwell, a Massachusetts Republican lawyer, then indicated disagreement with the limited interpretation given to the Privileges and Immunities Clause by the Supreme Court in the Slaughter-House Cases." He pointed out that the federal government did not have the power to prescribe the qualifications for rs in state courts and did no attempt to do so in this bill, but merely asserted that there was to be no color bar in jury service. Thurman interrupted him to point out that the 14th Amendment said nothing about race and color, and if Congress could prevent discrimination based on this,
177 Cong. Rec. 43/1, 4166. 178 Cong. Rec. 43/1, 4175. 178 Cong. Rec. 43/1, 4176.
150 Cong. Rec. 43/1, 4593. Congressman Roderick R. Butler said: "I might question the right of Congress to define who may be jurors in a State court, but as the State law of the State that I in part represent have made no distinction on account of race or color, I will not stop to discuss that proposition. Nevertheless it will strike many, even republicans, with much doubt, to say the least, of its constitutionality." See also id. at 385 (Cong. Mills).
181 U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957, 691 (1960).
18 27 Encyclopaedia Britannica 720 (11th ed. 1911).
194 Cong. Rec. 43/2, 938.
See also Cong. Rec. 43/1, 4116.