Lead Opinion
On the trial of this cause in the Court below, Howard
Prior to the admission of Nebraska as a State into the Union, none but white males were allowed by the laws of the Territory to sit upon juries. As part of the Act of Congress, passed Feb. 9, 1867, admitting the State, it is declared, “ That this act shall not take effect, except upon the fundamental condition, that, within the State of Nebraska, there shall be no denial of the elective franchise, o'r of any other right, to any person, by reason of race or color, excepting Indians not taxed.”
Two questions have arisen under this act, — the first presented by counsel for the plaintiff in error, who insists that the words “ any other right ” do not include service on a jury: the second is raised by a member of the Court in the counsel-room for the first time, who contends, as I understand it, that this clause, denominated the “fundamental condition,” recited above, is not a part of the organic law of the State.
As a rule, objections not raised upon the trial of causes in the Court below should receive no attention here; but, inasmuch as the one suggested is of great importance, it is well to state briefly the position of the majority, and fix, as far as a decision of this Court can, the right of the colored man in this State.
Nebraska, as a part of that vast tract of country ceded to the United States by France under the treaty concluded at Paris April 30,1803, was organized as a Territory by Congress, in the year 1854, by what is familiarly known as the Kansas-Nebraska Act. The appointment of a governor, secretary of state, judges, and marshal, and the election from time to time of a legislature,
In April, 1864, Congress passed an enabling act, providing for the election, in June of that year, of delegates, who should meet in convention in July following, for the purpose of framing a constitution, with a view to the admission of Nebraska as a State into the Union. The sentiment of the people at that time being opposed, evidently, to becoming a State, the delegates chosen in the manner provided, upon meeting, refused to make a constitution, and adjourned sine die.
Without any further act of Congress, the territorial legislature of 1866 submitted a proposed constitution to the electors, to be voted on in June of that year, with directions to choose, at the same time, legislative, executive, and judicial officers for the proposed State. The governor, secretary of state, and auditor of the Territory, were, by the act submitting the instrument, constituted a board of canvassers; and they declared the constitution adopted by a majority of a hundred.
The legislature thus chosen assembled in July, the time prescribed, and chose two senators to represent the State, who, together with the representative in Congress, took the proposed constitution to Washington, and prayed Nebraska’s admission. This constitution, in prescribing the qualifications of electors, limited the right to vote to white males. To this restriction Congress took exception, and, after much debate, on Feb. 9, 1867, passed an act as follows : —
“An Act for the Admission of the State of Nebraska into the Union.
“ Whereas, on the twenty-first day of March, A.D. 1864, Congress passed an act to enable the people of Nebraska to form a constitution and State government, and offered to admit said State, when so formed, into
'■'■Be it enacted by the Senate and Souse of Representatives of the United States of America in Congress assembled, That the constitution and State government which the people of Nebraska have formed for themselves be, and the same is hereby, accepted, ratified, and confirmed; and that the said State of Nebraska shall be, and the same is hereby, declared to be one of the United States of America, and is hereby admitted into the Union upon an equal footing with the original States in all respects whatsoever.
“Sect. 2. — And be it further enacted, That the said State of Nebraska shall be, and is declared to be, entitled to all the rights, privileges, grants, and immunities, and to be subject to all the conditions and restrictions, of an act entitled ‘ An Act to enable the People of Nebraska to form a Constitution and State Government, and fox the Admission of such State into the Union on an Equal Footing with the Original States,’ approved April 19, 1864.
“ Sect. 3. —And be it further enacted, That this act shall not take effect except upon the fundamental condition, that, within the State of Nebraska, there shall be no-denial of the elective franchise, or of any other right, to any person, by reason of race or color, excepting Indians not taxed; and upon the further fundamental condition, that the legislature of said State, by a solemn public act, shall declare the assent of said State to the -said fundamental condition, and shall transmit to the President of
The State legislature was convened by the governor accordingly; and on the twentieth day of February, 1867, after reciting the act of Congress, and their convention under it, declared: —
“Be it enacted by the legislature of the State of Nebraska, That the act of Congress of the United States, entitled ‘An Act for the Admission of the State of Nebraska into the Union,’ passed Feb. 9, 1867, be, and the same is hereby, ratified and accepted; and it is hereby declared that the provisions of the third section of the said act of Congress shall be a part of the organic law of the State of Nebraska.”
This action was certified to the President, who, on the second day of March, 1867, made proclamation as required.
Thereupon our senators and representatives were admitted to seats in Congress; the Territorial officers retired; those elected for the State nearly a year before entered upon the discharge of the duties appertaining to their respective offices; and a State government went into operation. State officers have repeatedly been elected, and senators and representatives have been chosen to represent us in Congress. Many and important laws, made necessary because of the transition from Territorial to State government, have been enacted
But, as I understand the objection, it is contended that the constitution by which we are bound is the one submitted to Congress when admission was asked, and does not include the fundamental condition forming part of the act of admission ; that Congress was not competent to impose such condition, and that the legislature of the State, having no inherent power so to do, .and not being elected with reference to such action, or instructed to that end, could not accept the condition so as to bind the people of the State; that, to be binding on the State, it must have been submitted to a vote the same as was the constitution proper. In short, the argument amounts to this, — that the constitution, saving the fundamental condition, is a valid and legal instrument, because it was submitted to, and voted upon by, the people; while the fundamental condition is not valid or binding, because it was not so submitted.
Were we able to refer to any known law, or to any uniform precedent, governing the introduction of new
As we shall see more fully hereafter, the people of the Térritory cannot frame a State government, and force themselves into the Union. Congress, under the Constitution, is charged with the duty of making all needful rules and regulations respecting the territory of the United States. It has given to Nebraska a Territorial form of government. A State and Territorial government could not possibly exist at one and the same time. This is seen by the fact, that, until our admission, the Teiritorial government continued in full force, notwithstanding the vote of June, 1866. What we chose to style a State constitution was at most a proposed instru
Now, if we inquire into the manner in which this fundamental condition was imposed, and say that it would be binding if it had the vote of the people, and not binding if it lacks it, we can make the same inquiry with reference to the remainder of the instrument.
As is well known, the constitution was originally drafted in a lawyer’s office by a few self-appointed individuals. These importuned the legislature then sitting to submit it to a vote of the people. At the start, then, we must reject the instrument, or admit that any one may draft the organic law of a proposed State who chooses to volunteer.
The legislature of the Territory owes its existence to the organic act of Congress, passed in 1854, which empowers it to legislate on all “ rightful .subjects of legislation.” To undertake to subvert the very government under which it assembles and acts is not a “ rightful subject of legislation: ” on the contrary, it is revolutionary. These “ rightful subjects ” must be such as are usual, and as are for the benefit of the governed, and must be acted upon in recognition of the existence of the Territorial government. The legislature of the Territory have not inherent or original power to make or submit constitutions. Whatever they may do in that direction is without authority, and is done only by indul
“ The Territorial legislature cannot, without permission from Congress, pass laws authorizing the formation of constitutions and State governments. All measures commenced and prosecuted with a design to subvert the Territorial government, without the consent of Congress, are unlawful.” Vol. ii., Opinions of Attorneys-General, p. 726. Vide also Webster’s Works, vol. vi. p. 485; Jam. Con. Convention, 200.
This is conceded to be so by Reverdy Johnson, one of the ablest opponents to Nebraska’s admission in the United-States Senate. Cong. Globe, i., 2d session 39th Cong., p. 356.
So, in point of' legality, there was no more authority in the Territorial legislature to direct the people to vote upon the constitution than might be possessed by a religious conference, a teachers’ institute, or a woman’s-rights convention. If, then, we are satisfied with the legality of the proceedings thus far, and are prepared to say that a constitution can regularly be drafted by any one, and submitted under the decision of any body, we have reached another very important inquiry: To whom shall the instrument be submitted, so as not to impair its validity ? Where shall we look for any direction in the matter? The organic act is silent. We have not the aid even of an enabling act: if we had, and it should undertake to prescribe to whom the instrument should be submitted, I fear our objectors would take offence at the unwarrantable interference of Congress in presuming to direct on so important a matter. We must bear in mind that we are establishing a government for the people, male and female, black and white, young and old. All are to be governed alike by the organic law to be
Where the existence of an office, or the right of an officer to fill it, depends on an election, such office or officer must have a majority vote. If we are in a position to say that a constitution, to be binding, must have the vote of the people who are to be governed by it, it would be idle to say that the requirement is answered by a mere formal vote, irrespective of which way a majority may have voted. When the question is submitted to us, if we can inquire at all in the matter, we must see that the State government had the support of a clear majority of those voting upon it. If this were not so, the fate of the people would rest with precinct, county, and territorial board of canvassers, who, acting under no law for violations of which they could be punished, as here, might, however great the majority opposed might
This, then, is the legitimate conclusion, fairly stated as I believe, that must or may follow from any attempt on our part to treat as judicial those questions which are solely political. We are not only liable to destroy an entire State government, but, at the same time, present the singular spectacle of a court sitting as a court to declare that we are not a court.
However, the Court are all agreed that the constitution proper is valid. Yet we have seen that it was born in a law-office, instead of a convention; that it was
Again: we have noted that it was submitted by nobody lawfully empowered to do so; that no one was obliged to vote, and no one could be punished for voting a thousand ballots at the pretended election. And we have further seen, that, whether carried by a majority vote in fact or not, we are nevertheless a State working under'the constitution so voted for. Why is this ? The answer is not a difficult one when the question is viewed in its proper light.
It may be innocent vanity to arrogate to ourselves great importance as the people,” and talk of the unwarranted interference by Congress in attempting to thrust upon this “ people ” institutions and laws against their wishes: but we should not forget that the very territory we are on was purchased and owned by the people of the United States; that they have directed 'Congress, under the Constitution, to make all needful rules and regulations respecting the territory; that, as long as we were on this territory, we were subject to, and had to abide by, such laws as they chose to make; and that not until we were strong enough to defeat the United States by arms could we hope for any change from such Territorial rule without the permission of Congress. How is such change to be effected ? Some one or some body, assuming to act for the people, may make a constitution, and may elect officers for the proposed State. Congress may refuse to recognize such State government. It therefore amounts to nought. The people may assemble as often as they see proper, and may make, from time to time, a score of proposed constitutions, and elect as many sets of officers. Each is as good as the other; and all are good for nothing un
Suppose a constitution were draughted, and to it were appended the subscription of nine-tenths of the names of all the males — white, if you please — residing in the Territory, praying admission as a State into the Union under the constitution submitted, and Congress should admit the State accordingly. Will objectors contend that the constitution is invalid because not having been submitted to a vote ? Will any be ready enough to contend that a vote without authority, where any one may vote as often as he pleases, or may refuse to vote
Again: suppose the electors should, upon the call of any influential man, assemble pretty generally in mass meeting, by almost unanimous agreement adopt a constitution for a proposed State, and Congress should admit the State accordingly. Will the Court again insist that the instrument is invalid because wanting the formal vote of the people ?
If these questions are answered in the negative, — as they must certainly be, — we then have established a very important point in this discussion; viz., that while, by a vote of the people themselves, a constitution may not become operative, it may become so without a formal vote. This vote, then, which is insisted upon as a legal requirement for a valid instrument, is nothing more nor less than a means of signifying the wishes of the people to become a State, and of their acceptance of a given constitution. Congress, deferring to the wishes of the people who are to be organized into a State government with a given constitution, as a political rule of action, generally acts upon the assumption, that it is the wish of the people to have such a government, and that they are satisfied with the proposed constitution. Any thing which expresses that wish and satisfaction will answer, whether it be by vote, caucus, petition, or by simple acquiescence in receiving a constitution, and organizing a State government under it. That Congress may mistake the sentiment of the people at times, innocently, is not surprising ; neither does it make any difference if the State government is nevertheless established. In our case, not near a full vote of the electors was had. How those staying at home would have voted is not known. Of those who did vote, it is very uncertain whether a clear majority voted for the adoption of the constitution.
The same is true were Congress to act wilfully wrong, and to assume to recognize one political faction of the Territory as the representatives of the people as against the other. Take the ease of the troubles in Kansas between the advocates for a free State and those advocating a slave State. Had Congress chosen to admit the State with either a free or slave constitution, in violation of the wishes of a clear majority of the people, however much its action might be condemned as unwise political conduct, if a State government had been organized under either, as long as such government existed, and the constitution remained unchanged, such organic law would have been binding on the people. Their remedy must be in changing the organic act, or refusing to continue or conduct a State government under it.' While it exists, the courts, in common with the people, are subject to its control. In my opinion, we may safely go still farther. I think it has been clearly shown, that whatever the people of a Territory may do by way of-a vote, petition, or otherwise, with a view to admission into the Union, is designed to signify to Congress our desire to become a State, and our satisfaction with a certain proposed constitution. Now, suppose Congress, acting upon a supposed wish on our part to become a State, should draught a constitution, and- append to it an act declaring that the people might form a State government under it, and, when the fact of the election and installation of officers was certified to the President, he should declare it to be, and the State thereupon should be, one of the Union. We might reject the offer, and refuse to organize. But, should we organize and conduct a State government, can it be maintained that we would not be a properly-organized State ? and would it become a court,
We have now established several propositions, in the light of which we can understandingly look at the action of Congress and of our own people in establishing the fundamental condition under consideration. In 1864, Congress proposed that we might then frame a constitution, giving political right to white males alone, if we desired, and we could be admitted. We refused to do so. In 1867, when we desired admission with such a constitution, we were told, in effect, that the proposition of 1864 was not a standing offer; that, in the march of events, the black man had risen in the consideration of the nation represented by Congress; and that in all the dominion under the jurisdiction of Congress, including Nebraska Territory, the right of franchise had been granted to black and white alike, and that no steps would be taken backward. We were rejected with our proposed constitution. Congress, in turn, by the fundamental condition attached, amended our proposed constitution by erasing the word “ white,” and returned it to the State legislature to approve for the people of the Territory. And here, I may remark in passing, is the first of all the proceedings had up to this time which had the semblance of regularity. What had gone before, we have seen, was transacted by any one who chose to act, and was done in the most irregular manner. Up to this time, Congress, which could legally give any direction in the matter, had taken no notice of our proceedings, and given no warrant for our action. But it is said the State legislature had no authority to accept the amended constitution. Grant it. Congress, however, assumed to recognize it as the representative of the people, and the legislature assumed to act for them.
But it may be further contended (and I must anticipate or surmise the several objections which may be
I pass to notice the objection raised by counsel,— that the fundamental condition does not include the right to sit upon juries. It is true that the right to sit upon juries is not a natural right; neither do I believe that the words “any other right” were used with the purpose of extending only to these. Introduced in connection with the grant of the elective franchise, an artificial right, it is evident to my mind that these other
That jury service is a duty, I admit. That it is a right also, I maintain. To be of the “ good and lawful men” from whom juries are to.be formed is an honor and distinction as well as the subject of duty. To say to the black man possessing equal intelligence and fitness with his white neighbor, that he cannot be allowed on a jury because of the misfortune of his color, is an insult from which he has a right to be saved. To permit a jury of white men to sit in determination of his right to property when assailed by a white man, or his right 'to life or liberty, when he is regarded as but little better than a brute under the law, is rank injustice. When the white man acts under the consciousness that the black man may some day sit in judgment upon his rights, and that he in return may measure with the same measure that is applied to him, an important right is accorded him.
Disguise it as we will, when we say that black men shall not sit upon juries, it is because they are black, and is an insult to the race. This is a clear violation of a political right which Congress secured to the colored man when we were admitted. Until you put him on an equality in the race for honor, distinction, and preferment, we have infringed his rights. If intelligence is wanted on the jury, exclude the unintelligent alike of all classes, race, or color.
We cannot cloak such injustice under the guise of saving the black from the burden of jury service. If' it can be done in the case of black citizens, we can as well do it in the case of the Irishman, the German, or the citizens of any other nationality. Our perceptions of the great principles of right may not be so ’ clear when applied to a few of that class of citizens, who, since the birth of the nation, have been the subjects of oppression and insult. But let us amend our jury law so as to confine the service to native-born citizens. The result would be that such a war of races would be inaugurated as would soon awaken us to the injustice being
Without pursuing the discussion further, I conclude, then, that not only does the fundamental condition attached to the act of admission form a part of our organic law, but that the condition extends to the right to sit upon juries.
. The judgment of the Court below must be affirmed.
Dissenting Opinion
dissenting.
On the' trial below, one Crossley was called into the box as a juror; and the defendant challenged him on the ground that he was “ a colored man, and not a free white male; ” which fact was made duly to appear. The challenge was not sustained; and he was sworn as a juror. Upon this very simple .state of facts two questions arise, — whether, under the laws of this State and the amendment of the Constitution of the United States, Crossley- was a competent juror; and whether, under the laws of this State and the third section of the act of Congress admitting Nebraska into the Union, he was a competent juror. In the opinion of the majority, it is insinuated that I raised the latter question for the first time in the counsel-room; that it receives attention at their hands, contrary to the correct practice, but out of deference to the importance of the question.
But any person conversant with criminal procedure can readily see that the very question was involved in the objection taken on the trial by the defendant; and it was discussed by the learned attorney-general in his
But it is a very familiar principle of criminal law, that it is the imperative duty of a judge to see that a defendant, on trial for felony, loses no right by reason of his own silence, or his counsel’s ignorance or neglect. Had any point fatal to the judgment not been made on the trial, or on the argument here, and any one of us had observed it, how could we justify ourselves to our own consciences if we failed to bring it forward, and decide upon it ? Certainly not by saying that it would be unpopular or unjust to some third party.
I have noted this point in the opinion of the majority, because all through it seems to run an anxious spirit to turn this judicial judgment into a partisan discussion; and I cannot turn aside to give it any words hereafter.
The history of the admission of Nebraska into the Union, given at length by my brother Cromase, may be briefly stated thus: A small number of men, without authority of law, drew up the constitution; and the legislature provided for its submission to a vote of the people. This instrument provided, that “ every male person of the age of twenty-one years and upwards,” . . . who is a “ white citizen of the United States,” should be an elector. At an election held for the purpose, a majority voted for the constitution. This majority was small; and my brother seems anxious to concede that there was no majority at all, but that it was only made to appear by divers transparent frauds. Nevertheless, the canvassers appointed by the legislature for the purpose, consisting of the Territorial governor, secretary, and auditor, declared the vote
There is much discussion as to each of these circumstances. The proceedings were throughout very irregular. But no just argument can be drawn from that fact. There are but two circumstances in the whole course of this history which deserve a moment’s attention, — one, the vote of the people upon the constitution, without which all that had gone before was of no avail; the other, the action of Congress. Each, in its turn, cured all irregularities which preceded it, and relieves us of the necessity of any inquiry in respect of every thing else.
So, too, the introduction into the discussion of the question, who ought to vote upon a constitution, is a mere diversion. While, abstractly, everybody, without regard to age, sex, color, race, intelligence, ox other quality, might claim a right to vote upon the fundamental law to which he is to be subjected, practically some limit must be and always has been imposed; and that limit has been the qualification of electors under the previous government.
The matter is thus reduced to a single point. All that “ self-appointed men ” and the Territorial legislature did, and all discussion of who are the people and who ought to vote on the constitution, and also all cavil as to the mode of conducting the election and canvassing the votes, and the act of the legislature pretending to amend the constitution, being laid out of view, the simple question is, Could Congress change the constitution which the people had adopted, and admit the State into the Union with its fundamental law so changed, without the consent of the people? The change made by Congress was only one word. It was a change right to be made. But that is not the question. If Congress can change one word, it can change the whole instrument; and we are confronted with the grave, the novel question, whether Congress can make a constitution for a community, and force them into the Union under it, without their consent. Whether the principles of the proposed government are right or wrong, is not the question, but whether the people of the new State or Congress is the body to determine those principles.
I am disappointed to find that this question, the fundamental one in the case, has received almost no attention from the majority of the Court. Their sight has been so distracted by the many circumstances which are detailed in the opinion with a mild humor, that they have been almost blind to the real issue. When Judge Crounse comes the nearest to the consideration
And then the morality of getting into the Union under the pretence of amending our constitution,' and deceiving Congress, and afterwards repudiating the amendment, is urged and illustrated by what is presented, I suppose, as a parallel case of an ox trade. I must confess that this style of arguing the very gravest constitutional question ever presented to a judge, so far from carrying conviction to my mind, seems to me most frivolous and absurd. But let us see whether we are guilty of any bad faith in repudiating this so-called “ solemn public act.” Was the Congress of the United States deceived at all by what we did ? Did not the very best constitutional lawyers of the land, who were members of that body, know very well what was the full force and effect of that act ? The question carries its own answer. But, furthermore, did this State perpetrate a fraud in getting into the Union by means of that act ? The people of this State never voluntarily entered the Union with a constitution amended by the erasure of the word “ white.” Congress admitted representatives from the State, and the Territorial government was withdrawn; and nothing remained for the
And this is all that this learned Court has to say upon this question. But we cannot leave it here. It is too serious to be answered by a sneer. It is too profound to be solved by an appeal to partisanship.
The Declaration of Independence declared, that “governments derive their just powers from the consent of the governed ; ” and this fundamental and just maxim is the governing and dominating rule of American polity. The idea has been expressed in different terms by different statesmen and bodies, — as- that “ this is a government of the people by the people for the people,” or that “ constitutions and laws can be rightfully formed and established only by the people over whom-they are put in force.” Our constitutions all commence, “We the people;” and, throughout their structure, the people as the source of authority, the power to which every officer must give account, is the one dominant sovereign. It is too late in the day to question or to vindicate this maxim of the American civil polity.
Another principle equally fundamental, equally well settled, and universally received, is this, — that the Federal Government is, in the sphere of its constitutional authority, sovereign, but, out of that sphere, is subordinate. The mutual relations of the States and the United States are so perspicuously and forcibly stated by Chief Justice Taney in Ableman v. Booth, 21 Howard, 506, that I shall content myself by simply referring to what is there said. It has always been conceded that Congress could not prescribe a form of government to a
Now, apply these two familiar principles of American government to the ease in hand; and we shall be conducted directly to the position that Congress cannot frame a constitution for a community, and, without their consent, force the same upon it. The people of the proposed State are to be “ the governed.” The government which is set over them should have their consent and approval, or it does not possess just authority; and the fundamental maxim is violated.
Again: it is not within the constitutional power of Congress to frame a constitution for a people, and, nolens volens, force it on them. The Federal Constitution authorizes it to guarantee a government republican in foMn to every State. The expression of this one power over the State excludes the exercise of all other powers. It was competent to open the constitution with which Nebraska presented herself asking admission, and see whether it provided a government republican in form. If that constitution did not provide such a government, Congress could refuse admission, or enter into negotiations with the people of the proposed State to secure the necessary amendment. But it could not say to the applicant, “ This instrument requires your judges of the Supreme Court to hold the District Courts : I will change that, and then force you into the Union with the constitution so modified.” That would have been beyond the competency of Congress, because it would have been, exacting more than the constitution authorized it to exact. Besides, the provision that “ new States may be admitted by the Congress into this Union” clearly indicates, by the frame of the clause, the authority to admit them upon their application, and not to force them in upon arbitrary terms prescribed by Congress.
And a consideration of the consequences of the opposite view affords further confirmation. Concede to Congress the power to frame a constitution for a people, force them into the Union under it without their approval, and see how it would work in a particular case. There is the Territory of Colorado. Let Congress provide a constitution for it. One provision may be, that it shall not be changed without the approval of Congress. Then, according to the rule in Luther v. Borden, 7 Howard, 1, an attempt to amend it in any other way is treason, and may be punished with death. Then suppose it is provided in this congressional constitution that no person shall be eligible to a seat in the legislature who is not a postmaster, nor to an executive office who is not an Indian agent; so that the entire State government may be dictated from Washington. There you have all the powers of the States absorbed by the government at Washington, and the whole theory of the relations of the local and central authorities subverted. That is an extreme case. But, if Congress can dictate
I am aware that it will be said that Congress would never do such a tyrannical thing as our supposition implies. In these days of centralization, it is hard to tell what Congress may not do. When we reflect that at the time of the discussions over the Lecompton Constitution in Kansas, by which the whole country was convulsed, it was universally supposed that the doctrine was once and forever settled, that no Territory could be forced into the Union until its people had had a full, fair, free opportunity to express their approval or disapproval of its constitution, and that this principle was ignored in the case of her twin-sister, our confidence that Congress will adhere to any policy is not strong. It is the first insidious approaches of power which are to be guarded by a people jealous of its liberties.
I am content to leave this subject here. So little has been said in the long opinion of the majority upon the principle involved in this case, that no good can come of surmising objections which might be urged to our view. I think it clear that the act of- Congress imposing the fundamental condition upon us was void.
But it is insisted that the Fourteenth Amendment of the Federal Constitution secures to each citizen the right to serve on the jury. If the word “ right,” as used in that clause, includes jury service, then Crossley was competent, and the exception is not well taken. Let us consider this question.
If we refer to the origin of the institution of trial by jury, we shall find no indication that it was an honor or a right thus to serve litigious parties. In the Saxon and
This interesting fact explains many circumstances otherwise obscure. There is the expression as to a trial by jury, until recently used in a civil case, and still retained in criminal cases, that a party puts himself upon the country; that is, the county, or men of the county. This is a relic of the ancient jurisdiction of the County Court, where at first the whole body of freeholders were the judges and the jurors, juratores were the witnesses, and in which Court the party put himself upon the judges as men of the county. Then, too, there is the expression still retained in our judicial proceedings, “ good and lawful men, sworn,” &c., which, we have seen, is from the ancient formula. This explains also the fact, very strange to us, that at one time it was a very frequent occurrence to arrest and indict for perjury persons, who, sitting on jurors, rendered a verdict which was disapproved by the court or the king. This was upon the old theory, that the jury found the verdict
That the jury was composed of the witnesses is laid down by many learned historians. Thus Mackintosh, in his “ History of England,” yol. i. p. 273, says, “ There are scarcely any authentic materials for its early history. It seems most probably to have arisen from the confluence of several causes. Perhaps the first conception of it may have been suggested by the very simple expedient of referring a canse by the County Court to a select committee of their number, who were required to be twelve, for no reason or even cause that has been discovered. In civil cases, the obvious analogy of arbitration might have contributed to the adopting of juries. Judges unacquainted with and incapable of a patient inquiry into facts might find it safer, as it was easier, to trust to a sort of general testimony, given by twelve unexceptionable neighbors, on the litigated question. There are many features in this institution which indicate that jurors must, in some manner, have been regarded in the same light with witnesses. Neighborhood, for instance, which might be dangerous to the impartiality of a judge, is advantageous to the knowledge of a witness; and it is still a sort of legal theory, that jurors have the dangerous power of finding a verdict from their own knowledge.”
Palgrave, in his “ History of the English Commonwealth,” vol. i. p. 243, says, “ Trial by jury, according to the old English law, was a proceeding essentially different from the modern tribunal, still bearing the same name by which it has been replaced; and, whatever merits be
Finalon’s note (a) to Reeve’s “History of English Law,” ii. p. 541, states the same fact in a few words: “ The law had attached great importance to the trial of causes by jurors who came from the locality where the matter arose: for originally they gave their verdicts of their own knowledge; and even now (in the time of Henry VI.), when they had tried causes on the evidence of witnesses of which they were to judge, it was important that they should come from the place where the witnesses lived, which would be where the matter arose.”
If we come down to a later date, when the juror and the witness were separated, and their relations established much as they are now, we shall still see in the position and function of the former that which renders his office, not a right, but a burden, and his duty a service attended by heavy personal risks. The only one of the circumstances which I enumerate is that mentioned above; namely, the liability, in case of reaching a false verdict, or one assumed to be false, to imprisonment and punishment. The situation of affairs out of which this grew is aptly described by Hallam, in his “ History of the Middle Ages,” vol. ii. p. 404: “ Perjury,” he says, “ was the dominant crime of the middle ages, encouraged by the preposterous rules of compurgation, and by the multiplicity of oaths in the ecclesiastical law. It was the frequency of their offence, and the impunity which the established procedure gave to that of jurors, that produced the remedy by writ of attaint, but. one which was liable to the same danger; since a jury on an attaint must, in the early period of that process, have judged on common fame, or on their own testimony, like those whose verdict they were called to revise.” Being thus liable to so violent a process in the event of being found to have rendered a false verdict, a juror could hardly have claimed as a right the office, if such it may be called, of adjudging his neighbor’s cause. And although this remedy was no longer in use, yet jurors were for a long time subjected to imprisonment when they found a verdict obnoxious to the court or the king. I will not stop to mention
Our statutes, and those of other States, have uniformly recognized this as the correct view of the subject. Acts are numerous to exempt certain persons from serving on juries. All of those acts recognize the service as a burden, not a right. See an act entitled “ An Act to exempt Firemen from Jury, Military, and Road Duty,” 1 State Session Laws, p. 16. Numerous other acts might be cited to the same effect. The legislature of our own State and of the other States, and the Parliament of Great Britain, have all recognized the service of a juror as a burden which a freeman might be called upon to perform, or be exempt therefrom, as the wisdom of the legislature should determine. The legislature may impose this duty upon one class, and not another. If there was a great number of Chinamen or Asiatics amongst us who were citizens and entitled to the franchise, but ignorant of our language, our laws, our customs, usages, and habits, the legislature might deem it wise to exclude that class from jury service. If they were rejected from such service under the general term “ Chinamen” and “ Asiatics ” by statute, would such statute be obnoxious to the fundamental condition on which Nebraska was admitted into the Union ? I think not. If it be a right, it belongs to every elector; and he may claim his right, and it cannot be denied. The Federal Constitution provides that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” The words “ privileges and immunities ” have been treated as synonymous with “ right.”
In Corfield v. Coryell, 4 Washington, C. C., 371, Mr. Justice Washington, speaking of these words, says, “ We
And in Conner v. Elliott, 18 Howard, 591, Mr. Justice Curtis, delivering the unanimous opinion of the Court, says that these words relate only to the privileges of citizenship.
Webster, in the sixth volume of his works, p. 112, says that these words do not confer political rights. The word “ right ” in the amendment to the Constitution of the United States refers to those natural rights guaranteed in the Bill of Rights, and not such privileges as may be intrusted' to a part of the citizens. This construction is sustained in Amy v. Smith, 1 Littel, 333; Campbell v. Morris, 3 Har. & McH., 554; Murry v. McCarthy, 2 Munf., 398 ; Austin v. The State, 592 ; and by Mr. Justice Curtis in Scott v. Sanford, 19 Howard, 580-584. See also Debates in New-York Constitutional Convention of 1821, participated in by Mr. Justice Spencer, Col. Young, Mr. Radcliff, and others, p. 183.
That being the meaning of the word in the amendment, there can be no question that it has no relation to this case.
For these reasons, I think that there was error in admitting Crossley as a juror, and that the judgment should be reversed.