in courts, for white persons constituted the accusers, the prosecutors, the judges, and the juries. Immediately following the Civil War, before the amendments of the Constitution enacted in the special behalf of the race were effected, Negroes were by the Black Codes deprived of all of the rights of citizens and nothing bore more grievously upon them than the deprivation of the right to serve on juries. Some States had special laws carrying out this prohibition. The first case of consequence requiring an interpretation of the State law to this effect was that of Strauder v. West Virginia,48 already mentioned above. In this case the court took high constitutional ground. It was held that "a law of West Virginia limiting to white persons, twenty-one years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility." The right of a man of color that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race and no discrimination against them because of color, was asserted in a number of cases, to wit: Virginia v. Rives,49 Neal v. Delaware,50 Gibbons v. Kentucky.51
In the case of Bush v. The Commonwealth of Kentucky52 the Negro faced an additional difficulty in that the court held that wherein there was no specific law excluding persons from service upon juries because of their race or color, that the petitioner would have to show evidence to that effect. In the case of Smith v. The State of Mississippi53 it was held that the omission or refusal of officers to include Negro citizens in the list from which jurors might be drawn is not, as to a Negro subsequently brought to trial, a denial of equal protection of laws. In the case of Murray v. The State of Louisiana54 the decision was that the fact that a law confers on the jury commissioners judicial power in the selection of citizens for jury service, does not involve a conflict with the Fourteenth Amendment of the Constitution of the United States, although in the exercise of such power they might not select Negroes for jury service.
The case of Williams v. Mississippi was more interesting. The law of that State prescribed the qualifications of voters and of grand and petit juries and invested the administrative officers with a large discretion in determining what citizens have the necessary qualifications. As it appeared that in the use of their discretion they would exclude Negroes from such juries it was contended that the act of Mississippi was a violation of the Fourteenth Amendment. The court held, however, that the Mississippi law could not be held repugnant to the Fourteenth Amendment merely on a showing that the law might operate as a discrimination against the Negro race, in absence of proof of an actual discrimination in the case under consideration. This ground has often proved convenient for the Supreme Court of the United States in dodging the question whether or not the Negroes must be protected in the rights guaranteed them by the Constitution.
This case was decided in 1897 and two years later Mr. Justice Gray, giving the opinion of the court in the case of Carter v. Texas,55 said that the exclusion of all persons of African race from a grand jury which finds an indictment against a Negro in a State court, when they are excluded solely because of their race or color denies him the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States, whether such exclusion is done through the action of the legislature, through the courts, or through the executive or administrative officers of the State. This was substantially the position taken in the case of Strauder v. West Virginia twenty years earlier.
The Negroes received some encouragement, too, from the decision of Rogers v. Alabama.56 It was held that there had been a denial of the equal protection of the laws by a ruling of a State court upon the motion to quash an indictment on account of the exclusion of Negroes from the grand jury list, which motion, though because of its being in two printed octavos, was struck from the files under the color of local practice for prolixity, contained an allegation that certain provisions of the newly adopted State constitution, claimed to have the effect of disfranchising Negroes because of their race, when such action worked as a consideration in the minds of the jury commissioners in reaching their decision. The court held in Martin v. The State of Texas, however,57 that a discrimination against Negroes because of their race in the selection of grand or petit jurors as forbidden by the Fourteenth Amendment is not shown by written motion to quash, respectively, the indictment of the panel of petit jurors, charging such discrimination where no evidence was introduced to establish the facts stated in the omissions. It is not sufficient merely to prove that no persons of color were on the jury.
As certain States wished to make the government further secure in the elimination of Negroes from juries, after making the qualifications for voters unusually rigid so as to exclude persons of African descent, they easily established the same qualifications for jurors, to relieve persons of color also from that service. In the case of Franklin v. South Carolina58 the court held that there was no discrimination against Negroes because of their race in the selection of the grand jury made by the laws of South Carolina,59 giving the jury commissioner the right to select electors of good moral character such as they may deem qualified to serve as jurors, being persons of sound mind and free from all legal exceptions. A motion, therefore, to quash an indictment against a Negro for disqualification of the grand jurors who must be electors, because of a change in the State constitution of South Carolina respecting the qualifications of electors, did not violate the Act of Congress, June 25, 1868, and, therefore, did not present to the Supreme Court of the United States a question of a denial of Federal right where there is nothing in the record to show that the grand jury as actually impaneled contained any person who was not qualified as an elector under the earlier State constitution, which was, according to the allegation, so made up as to exclude Negroes on account of their color. The Supreme Court of the United States then took no account of the intent or the spirit of the law maker as this tribunal had been accustomed to do in cases of constitutional import and left upon the Negro the burden of performing the difficult task of showing that he had been discriminated against on account of his color when the discrimination could be easily effected without the possibility of his actually producing any evidence that on the face of itself could convince the court.
Suffrage
As already mentioned above the Negroes during this period were struggling to retain the right of suffrage and, of course, were attacking in the courts those restrictions primarily directed toward the elimination of the Negroes from the electorate. The Supreme Court of the United States generally shrank from these cases by disclaiming jurisdiction. In Ex Parte Siebold,60 Ex Parte Yarborough,61 and In re Coy,62 however, the general jurisdiction of Federal courts over matters involved in the election of national officers was affirmed. The court held that it had jurisdiction in the election case in Wiley v. Sinkler,63 when there was brought an action to recover damages of an election board for wilfully rejecting a citizen's vote for a member of the House of Representatives. In Swafford v. Templeton64 a suit was brought for damages for the alleged wrongful refusal by the defendants at an election of officers to permit the plaintiff to vote at a national election for a member of the House of Representatives. It was held that the court had jurisdiction.
From the Supreme Court of the United States, however, the Negroes received little encouragement, in as much as the right of suffrage, with its requirements of property ownership and the literacy test, could be withheld from the Negro without