That you may understand the amendment introduced by me, I call attention to the original Civil Rights Act, out of which it grows and to which it is a supplement. That great statute was passed April 9, 1866, and is entitled, “An Act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.”[226] It begins by declaring who are citizens of the United States, and then proceeds:—
“Such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States,”—
To do what?
“to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
The Senate will perceive that this Act operates not only in the National but in the State jurisdiction. No person will question that. It operates in every National court and in every State court. The language is, “in every State and Territory in the United States.” Every State court is opened. Persons without distinction of color are entitled to sue and be sued, especially to be heard as witnesses, and the colored man may hold up his hand as the white man.…
Now I ask the Senator from Wisconsin to consider what is the difference in character between the right to testify and the right to sit on a jury.
Mr. Carpenter. Or on the bench.
Mr. Sumner. The Senator will allow me to put the question in my own way. I say nothing about the bench, and the Senator is too good a lawyer not to see why. He knows well the history of trial by jury; he knows that at the beginning jurors were witnesses from the neighborhood,—afterward becoming judges, not of law, but of 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 must 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. Call the right political or civil, according to the distinction of the Senator. No matter. The right to be a juror 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. I say nothing about judges; for the distinction is obvious between the two cases. I speak now of colored jurors; and I submit, as beyond all question, that every reason or argument which opens the courts to colored witnesses must open them to colored jurors. The two go together, as natural yoke-fellows.
But do not, Sir, forget the necessity of the case. How can justice be administered throughout States thronging with colored fellow-citizens, unless you have them on the juries? Denying to colored fellow-citizens their place on the juries, you actually deny them justice. This is plain, and presents a case of startling wrong. I am in the receipt of letters almost daily, complaining of the impossibility of obtaining justice in State courts because colored fellow-citizens are excluded from juries. I say, therefore, from the necessity of the case, and also from the analogy of witnesses, the courts should be opened to colored jurors. The Senator makes a mistake, when he deals his blow in the very Temple of Justice. He strikes down the safeguards of justice for the whole colored race; and what is the excuse? That to sit on the jury is a question of politics,—that it is a political right, and not a civil right. Sir, I cannot bring myself to make any question whether it is a civil right or a political right; it is a right. It is a right which those men have by the Law of Nature, and by the National Constitution interpreted by the National Declaration.