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 specifically discriminating against any one on account of race or color. In Southy v. Virginia, 181 U. S., Revised Statutes, of the United States, Cont. St. 1901, pages 37-42, providing that every person who prevents, hinders, controls or intimidates another from exercising the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment of the Constitution of the United States, by means of bribery, etc., shall be punished, was held invalid as it was considered to be beyond the constitutional power of Congress to act in such a case except in that of race discrimination. If the discrimination is in a State or municipal election, however, Congress may intervene, if the discrimination is shown, but not until then.
In the case of Giles v. Harris65 there was brought to the Supreme Court a bill in equity, complaining that Negroes qualified to vote for members of Congress had been refused on account of their color by virtue of the Alabama constitution, whereas white men were registered to vote at such an election. Relief was asked for on the basis of the Revised Statutes, Sec. 1979, praying that the Supreme Court should order that the petitioner be registered and declare null and void the special clause of the Alabama constitution. The court answered this petition with certain observations disclaiming jurisdiction largely for "want of merit in the averments which were made in the complaint as to the violation of Federal rights."
The court held that if the registrars acting at this election in Alabama had no authority under the new constitution, which the petitioner prayed that the court might declare null and void, they could not legally register the plaintiff. If they had authority, they were within their right to use their discretion. If this clause in the constitution should be struck down according to the prayer of the plaintiff, there would be no board to which the mandamus could be issued. The Supreme Court, therefore, held that no damage had been suffered because no refusal to register by a board constituted in defiance of the Federal Constitution could disqualify a legal voter otherwise entitled to exercising the electorate franchise, since this amounts to a decision upon an independent non-Federal ground sufficient to sustain the judgment without reference to the Federal question presented. It observed, moreover, that the bill imported that the great mass of the white population intended to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff named to be inscribed upon the lists of 1902 would be needed.
Giving his dissenting opinion in this case, Justice Brewer showed that "although the statute and these decisions thus expressly limit the range of inquiry to the question of jurisdiction, it was held that there is a constitutional question shown in the pleadings. The certificate, therefore, might be ignored and the entire case presented to the court for consideration.... Hence every case coming up on a certificate of jurisdiction may be held to present a constitutional question and be open for full inquiry in respect to all matters involved." Brewer would not assent to the proposition that the case presented was not a strictly legal one and entitling a party to a judicial hearing and decision. "He is a citizen of Alabama entitled to vote. He wanted to vote at an election for a Representative in Congress. Without registration he could not, and registration was wrongfully denied him. That many others were thus treated does not deprive him of his right or deprive him of relief." Justice Harlan dissented also giving practically the same argument as that of Justice Brewer. He observed: "The court in effect says that although it may know that the record fails to show a case within the original cognizance of the Circuit Court, it may close its eyes to that fact, and review the case on its merit." In view of the adjudged cases, he could not agree that the failure of parties to raise a question of jurisdiction relieved this court of its duty to raise it upon its own motion.