That the statute of 1875 prohibiting the exclusion of persons from jury service on account of race, color, or previous condition of servitude is constitutional, has been decided in a series of cases before the Supreme Court of the United States.[[635]] The mere fact that no Negroes are on a certain jury does not indicate that the Fourteenth Amendment, under which all these jury cases arise, has been violated; it must be shown that the Negroes were kept off the jury consciously by State officials because of their race, color, or previous condition.[[636]] The Fourteenth Amendment is violated, however, when the officers of the State keep Negroes off the juries for these causes. The Supreme Court[[637]] of the United States said in 1899: “Whenever by an action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him contrary to the Fourteenth Amendment to the Constitution of the United States.”
A custom seems to have grown up among some lawyers, particularly in the South, to move to quash the indictment whenever a Negro is on trial for a crime and there are no Negroes on the grand jury. With almost absolute uniformity, the State courts have held that there is no ground for quashing the indictment unless it is shown that Negroes were kept off the juries purposely and because of their race or color.[[638]] The cases show also that, if a Negro is kept off the grand jury because of his race, there is ground for quashing the indictment. Texas has furnished far more of these jury cases than any other Southern State. Wherever the jury commissioners have betrayed in any way the fact that they kept Negroes off the juries because of their race, the indictment has been quashed. A few instances will suffice. In one case the commissioners said that they did not put Negroes on the jury because they considered them unfit; this was held[[639]] to be in violation of the Fourteenth Amendment. When, again, they said that they kept Negroes off the juries because their presence “would be offensive to the white jurors,” the indictment was quashed.[[640]] In a county of 11,000 voters in Texas, about 1,000 of them were Negroes, of whom 600 or 700 were competent to be jurors. No Negro had ever been on a jury there. The commissioners admitted that they would not put a Negro on if they knew it. The indictment was quashed.[[641]] In another case,[[642]] they said they would not put Negroes on juries because it would create a conflict between the races which would injure the Negroes. This was held a sufficient admission to quash the indictment. In a case arising as late as 1903, the commissioners undertook to satisfy the Fourteenth Amendment by putting on a Negro. They put on a Negro who had either moved out of the county or was dead. This was held to be enough of a race discrimination to quash the indictment.[[643]]
No matter how large a percentage of the population is colored, if it is not proved that Negroes were kept off the jury because of race or color, there is no ground for objection. Thus, it was found that a Negro had never been known to sit on a grand jury in Bexar County, Texas, where there were 7,000 or 8,000 possible jurors, of whom 600 or 700 were colored. It was not proved, however, that they were kept off on account of race or color, and it was held that there was no ground for quashing an indictment.[[644]]
The following interesting case arose in Utah in 1900: A white person refused to serve on a jury with a Negro, and wrote a note making a complaint. The Negro was thereupon excluded from the jury. Later, the Negro brought an action against the white man to recover damages to the extent of the jury fees. The court held[[645]] that, while color was not a test of one’s fitness to be a juror, a written objection to serve on a jury with a Negro is no ground for an action for damages by a colored man.
The latest case of race distinction in juries comes from Oklahoma. There were four Negroes on a jury, and for that reason the judge discharged the jury. He said that the State had separate cars, separate schools, and separate tables for Negroes and whites, and “he would not insult white men by making them serve on a jury with Negroes.” The case is so recent as to be reported, as yet, only in the newspapers.[[646]]
The constitutional right of the Negro to serve on a jury or to be tried before a jury composed, in whole or in part, of Negroes, is well expressed in a recent Texas case[[647]] as follows: “It is not a question as to the right of a Negro, or any number of Negroes, to sit on a grand jury, that the Fourteenth Amendment to the Constitution of the United State was intended to provide for; but it was intended, where a Negro was on trial, to prevent discrimination against the Negro race in the formation of the grand jury, which presented the indictment, and only in case Negroes are intentionally excluded from the grand jury is he denied the equal protection of the laws. It was never intended by the Fourteenth Amendment to guaranty a Negro defendant a full Negro grand jury, or to guaranty to him any particular number of grand jurors, but it was intended to prevent intentional exclusion from the grand jury.”
Actual Jury Service by Negroes in South
In treating the Negro as a juror, the writer departed from the habit of confining his discussion to the race distinctions manifested in statutes and judicial reports. As he went through the statutes and reports, these questions arose in his mind: Do Negroes actually serve on the juries in those communities where they are numerous? If so, what satisfaction have they given? In order to obtain answers to these questions, he sent out letters to the clerks of court in every county in the Southern States in which Negroes constituted one-half or more of the population in 1900. Over three hundred letters were sent out containing the following inquiry: “I wish to know to what extent Negroes actually serve on juries, how Negro jurors are regarded by the court and the people at large, whether the number of colored jurors has increased or decreased in late years, what has been the experience of your county as to the satisfaction of colored jurors?” Of course, as many replies were not received; but the replies that were received indicate the extent of Negro jury service in the Southern States. These replies will be quoted from freely in each case, the State and the number of Negroes and white people in the particular county will be given, but not the name of the county.
Alabama.—County No. 1, 10,000 white people, 13,000 Negroes: “Negroes are not allowed to sit upon juries in this county. It sometimes happens that names of Negroes are placed in our jury-box by mistake on the part of the jury commissioners, and are regularly drawn to serve as jurors; this, however, is a very rare occurrence. Once in the past four years, a Negro was drawn as a grand juror (by mistake) who appeared and insisted upon the court’s impaneling him with other jurors, which was done in accordance with law, the court having no legal right to discharge or excuse him. My recollection is he served two days, when he was taken out at night and severely beaten, and was then discharged on his own petition by the court. This will convey to your mind that Negro jurors are not very wholesomely regarded and tolerated in this county. The fact is, Negroes have never been or never will be allowed to sit on juries in this county.”
County No. 2, 5,000 white people, 21,000 Negroes: “I have lived in this county for more than sixty-six years, and we have never had a Negro juror in that time, nor do I ever expect to see one in the jury-box in this county. Our adjoining counties have all had them, a number of years ago.”