Subordinate judicial tribunals of the United States can exercise
only such jurisdiction as may be authorized by acts of Congress,
and, whatever the nature of a civil suit or criminal proceeding in
a state court, it cannot be removed to the federal court unless
warrant therefor be found in some act of Congress.
Under §§ 641, 642, Rev.Stat., there is no right of removal into
the circuit court of the trial of a person indicted under the state
law where the alleged discrimination against the accused in respect
to his equal rights is due merely to illegal or corrupt acts of
administrative officers unauthorized by the constitution or laws of
the state as interpreted by its highest court. The remedy for
wrongs of that character is in the
Page 201 U. S. 2
state court, and ultimately in this Court by writ of error to
protect any right secured or granted to the accused by the
Constitution or laws of the United States and which has been denied
to him in the highest court of the state in which the decision in
respect to that right can be had.
The fact that the courts of the state have on previous trials
refused to recognize the validity of an alleged pardon given to the
accused by the acting governor of the state does not make a case
under § 641, Rev.Stat., for the removal of the prosecution from the
state court into the circuit court.
While the prior decisions of this Court determining the scope of
§ 641, Rev.Stat., had reference to discrimination against negroes
because of their race, the rules announced equally apply where it
exists as to the white race; 641 as well as the Fourteenth
Amendment is for the benefit of all of either race whose cases are
embraced by its provisions, and not alone for the benefit of the
African race.
Where the highest court of the state has declared that the
action of the trial court in refusing to quash the indictment or
the panel of petit jurors cannot under the laws of the state be
reviewed by any appellate court, although the motion to quash was
based on federal grounds, then after the highest appellate court of
the state has disposed of the matters of which it may take
cognizance, a writ of error will run from this Court to the highest
court in the state in which the decision of the federal question
may be had, and upon such writ of error this Court can review the
judgment of the trial court, and will exercise such jurisdiction as
may be necessary to vindicate any federal right, privilege, or
immunity specially set up and denied.
Where this Court holds that a case cannot be removed under § 641
from the state court into the circuit court, it will not pass upon
the merits of any federal question which may arise in the case.
These cases arise out of a criminal prosecution begun in one of
the courts of Kentucky, and, after several trials, removed on the
petition of the accused, Caleb Powers, into the Circuit Court of
the United States for the Eastern District of Kentucky.
The principal question to be determined is whether the
prosecution was removable from the state court.
After referring to the indictment and to the transfer of the
prosecution into the circuit court of the United States, the
petition for removal alleged that the accused was within the
jurisdiction of the United States and of the Commonwealth of
Kentucky; that he was, and all of his life had been, a citizen of
the United States and of that commonwealth, and as such citizen was
entitled to enforce in the judicial tribunals of Kentucky,
Page 201 U. S. 3
on the trial and final disposition of said prosecution, all
equal civil rights and equal protection of laws secured to him by
that part of the Amendment providing that
"no state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property,
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws."
He also claimed the rights secured by § 1977 of the Revised
Statutes of the United States, providing,
"all persons within the jurisdiction of the United States shall
have the same right in every state and territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other,"
as well as those secured by the act of Congress of March 1,
1875, 18 Stat. 335, the preamble of which declares that:
"Whereas, it is essential to just government we recognize the
equality of all men before the law, and hold that it is the duty of
government in its dealings with the people to mete out equal and
exact justice to all, of whatever nativity, race, color or
persuasion, religious or political, and it being the appropriate
object of legislation to enact great fundamental principles into
law."
The petition then refers to the arrest of the accused on the
ninth of March, 1900, upon the charge of being an accessory before
the fact to the willful murder of Wiliam Goebel, and alleges that,
on the tenth of March, 1900, and prior to the finding and reporting
of the indictment against the accused,
"William S. Taylor, who was then the duly and legally elected,
qualified, actual, and acting Governor of the State of Kentucky,
and had in his actual possession and under his actual control the
office and executive mansion prepared by said state for its
governor, and all the books, papers, records, and archives
belonging thereto, in due form of law duly and legally granted and
delivered
Page 201 U. S. 4
to your petitioner, and your petitioner, accepted from him, a
full, complete, absolute, and unconditional pardon, release, and
acquittance of the identical charge against him in said indictment,
and the charge now pending in said prosecution against your
petitioner in said Scott Circuit Court, and under which your
petitioner is now in custody; that said Taylor, at the time he
granted said pardon, had the right and authority, under the
Constitution and the laws of Kentucky, to grant same; that your
petitioner accepted said pardon, and from the time same was granted
he claimed, and he now claims, the full benefit and effect thereof
and his liberty thereunder. That, on the day said pardon was
granted him, it was, by said Taylor, as governor aforesaid, duly
entered on the executive journal kept in his office, and a
certificate thereof was duly and in due form of law, and as
required by law, issued and delivered to him, duly executed by said
governor and the secretary of said state, and placed in your
petitioner's possession, and same was by your petitioner accepted.
Your petitioner further states that, at the time the said pardon
was granted to him by his Excellency, the said William S. Taylor,
and subsequent thereto, the said William S. Taylor was, and prior
thereto he had been, recognized, regarded, and treated as the duly
elected, actual, and acting Governor of the State of Kentucky by
the executive power and executive departments of the United States
government, including the President, the Attorney General, and the
Postmaster General, and by the postmaster at Frankfort,
Kentucky;"
that
"for said state to hold him in custody, or to try or to require
him to be tried in any one of its courts for the offense alleged
against him in and by said indictment, since the granting and
acceptance of said pardon and the issuance and acceptance of the
certificate thereof, is a denial to him of the equal protection of
the laws and the equal civil rights to which he is entitled under
and as provided for in and by the portions of said amendment to the
Constitution of the United States above copied, and by said section
of said Revised Statutes, and by said act of Congress"
and that,
"notwithstanding the granting and acceptance
Page 201 U. S. 5
of said pardon, the issuance and acceptance of said certificate,
the fact that the said William S. Taylor was the Governor of
Kentucky when said pardon was granted and when said certificate was
issued, and was then recognized as such governor by said executive
officers of the United States, that he cannot enforce in the said
Scott Circuit Court in which said prosecution is pending, or in
that part of the state in which said Scott County is located, or in
any court, judicial tribunal, or place of the said state, the equal
civil rights and the equal protection of the laws secured to him by
each and all of the three portions of said amendment copied above,
and by said section of the Revised Statutes of the United States,
and by said act of Congress for the reasons now set forth."
The accused here refers to the three trials to which he was
subjected, and after stating that he was confined in the county
jail, without bail and awaiting trial, proceeds in his
petition:
"That at each of said trials, your petitioner presented to said
Scott Circuit Court said certificate of pardon, and pleaded and
offered in evidence said pardon and said certificate as a bar and
complete defense to said prosecution and the trial and conviction
of your petitioner under said indictment, but at each of said
trials the said trial court overruled said pleas and refused to
admit said pardon and certificate as evidence, and held and
adjudged that said pardon and certificate were null and void and of
no effect whatever, and in each of said trials the said holding of
the trial court in reference to said pardon and certificate was
duly excepted to and made one of the grounds which was presented
and on which a reversal was asked by said Court of Appeals on the
trial of each on said appeals heretofore mentioned, and on each one
of said appeals your petitioner contended that said pardon and
certificate entitled him to an acquittal of the charge contained in
said indictment, but the said Court of Appeals, on the trial and
final disposition of each one of said appeals, failed and refused
to hold that said pardon and certificate authorized your
petitioner's acquittance of said charge; instead, that court, as
the said trial court had
Page 201 U. S. 6
done, held that said pardon and certificate were and are null
and void and of no effect whatever. The holding of said Court of
Appeals on the trial of each of said appeals was reduced to
writing, and each holding, as prepared and ordered by said Court of
Appeals, has been, by the official reporter of that court, under
the court's direction, caused to be printed in, and is now a part
of, the official printed reports of said court, and all of said
holdings are now in full force and effect as, and they in fact are,
the laws of said state in this case, and are binding upon and will
have to control this honorable court. That the instances named are
the only instances in which said Court of Appeals or any trial
court of said state ever held any pardon and certificate thereof,
granted, entered, and issued by any Governor of Kentucky, to be
void and of no effect. That, in consequence of the action and
holdings of said trial court and said Court of Appeals above
stated, this honorable court, cannot, and should this case be
retried in this honorable court, could not allow your petitioner to
plead or introduce said pardon and certificate as evidence as a
defense to the said charges contained in said indictment against
him, and could not allow your petitioner his liberty and acquittal
under and by virtue of said pardon and certificate, or allow said
pardon and certificate to have any effect whatever in your
petitioner's behalf, but instead is and will be bound in
consequence of said laws to hold said pardon and certificate null
and void and of no effect whatever."
In the second paragraph of his petition for removal, the accused
states that he is a citizen of the United States and of Kentucky,
and as such is entitled to enforce in the judicial tribunals of the
state the equal civil rights and the equal protection of the law
secured to him by the above constitutional provisions and
statutes.
His petition then alleges:
"But your petitioner states that he is denied and cannot enforce
in the judicial tribunals of this state and in the part of the
state where this action is pending, the rights secured to him by
said laws and each of said laws,
Page 201 U. S. 7
because the said State of Kentucky has enacted a law which has
not been repealed nor abrogated, and which is now in full force and
effect, to-wit, § 281 of the Criminal Code of Practice of said
state, which section reads as follows:"
"The decisions of the court upon challenges to the panel and for
cause, upon motions to set aside an indictment, and upon motions
for a new trial, shall not be subject to exception,"
"and because of the decisions of the Court of Appeals of
Kentucky, the highest judicial tribunal in this state, rendered in
this action. . . . upholding the validity of said law,
notwithstanding its plain contravention of the said provisions of
the Constitution of the United States."
"
* * * *"
"Your petitioner states that the death of said Goebel occurred
during the existence of intense political excitement following the
election of a governor and other state officers in November, 1899;
that said Goebel had been the Democratic candidate for the office
of governor, and was, at the time of his death, contesting the
right of said William S. Taylor to the office of governor, said
Taylor, who was a Republican candidate for that office, having been
actually elected governor and declared elected governor by the duly
and legally constituted authorities, and inducted into said office;
that this petitioner was at said election, the Republican candidate
for the office of secretary of state, and had been actually elected
and declared elected to said office, and had been inducted into
said office, and there was pending at the time of said Goebel's
death a contest for the said office of secretary of state, against
this defendant, inaugurated by one C. B. Hill, who had been a
Democratic candidate for said office; that the public mind was, by
said election and said contest for the office of governor,
lieutenant governor, secretary of state, and the other state
offices greatly inflamed, and bitter and intense political
animosities were excited and fostered by reason thereof, and that
such feelings existed at all of the trials of this petitioner
hereinafter referred to, and such feelings still exist against him
on the part of said
Page 201 U. S. 8
adherents of said Goebel throughout the State of Kentucky, and
particularly in Scott County."
"Your petitioner further states that he was first put on trial
under said charge on the ninth day of July, 1900, at a special term
of the Scott Circuit Court begun and holden on said date; that said
trial resulted in a verdict of conviction, and he was sentenced to
confinement in the state penitentiary during his natural life; that
the jury in said trial was selected from a large number of the
citizens of said county, and that, with three or four exceptions,
all of the veniremen were purposely summoned because of their known
party affiliations, which were different from the known party
affiliations of your petitioner; that, by the laws of Kentucky in
such cases made and provided, the prosecution has a right to five,
and the defense of fifteen, peremptory challenges, and that with
the exception of three or four Republicans and Independent
Democrats, all of those summoned were known to be partisan Goebel
Democrats, while your petitioner was and is a Republican, and was
known to belong to the Republican party; that from veniremen so
summoned a trial jury was selected that was composed almost, if not
entirely, of Goebel Democrats, and no Republicans, although there
were then residing in said county many hundreds of citizens
qualified for jury service who were Republicans and Independent
Democrats, and not supporters of said Goebel in his candidacy or
contest for the office of Governor of Kentucky, nor in sympathy
with him; but your petitioner avers and charges that all of such
citizens, with the exceptions named, were intentionally passed by
in summoning said veniremen in order that your petitioner should
not have a fair trial by a jury of his peers, impartially selected,
but to the end that such jury might be selected to convict
him."
"Your petitioner further respectfully represents that the
Sheriff of Scott County, to whom is assigned the duty of selecting
all jurors whose names are not drawn from the jury wheel, is a
Goebel Democrat, as are also the deputy sheriffs of said county.
"
Page 201 U. S. 9
"Your petitioner further states that, at said first trial
hereinbefore mentioned the judge of the Scott Circuit Court, when
the original list of names drawn from the jury wheel for jury
service had been exhausted, although requested by counsel for this
petitioner, and while there remained in said jury wheel about one
hundred names, to draw the names remaining in said jury wheel
therefrom, refused to do so, but directed the sheriff to summon one
hundred men for jury service, and explicitly directed him to summon
no men for jury service from the City of Georgetown, but to go out
into the county for that purpose. Your petitioner states that the
said one hundred names that remained at said time in said jury
wheel had been placed there by impartial and unbiased jury
commissioners prior to the election in November, 1899, and prior to
the killing of said Goebel. Your petitioner states that, on the
morning following the order of the court to the sheriff to summon
the one hundred men for jury service from the county, and when said
one hundred men so summoned had appeared in court, they were seated
on one side of the courtroom, separate and apart from the
spectators and other persons; that the judge of said court, without
notice to your petitioner or any of his counsel and without making
any request of any of his counsel or of this petitioner to
accompany him, left the bench and went to the side of the courtroom
wherein said parties summoned for jury service were assembled, and
without swearing said parties, so far as this petitioner saw,
heard, or has information, as to their excuses for not serving as
jurors, if any they had, called them up to him one at a time, not
in the hearing of this petitioner, or his counsel, and excused such
of them from jury service as he saw fit, without any knowledge on
the part of this petitioner or his counsel as to why such parties
were thus excused, and on the following day the same proceeding was
had as to forty additional men that had been summoned for jury
service in this case."
"Your petitioner further states that an appeal was taken from
the judgment of said court to the Kentucky Court of Appeals, and
that at the January term, 1901, of said court, the
Page 201 U. S. 10
judgment of the trial court was reversed; that your petitioner
was again tried in the Scott Circuit Court at its October, 1901,
term, and a verdict of guilty returned again, fixing the punishment
of your petitioner at confinement in the state penitentiary for
life; that, in summoning the veniremen from whom the jury was
selected at the second trial, the same unjust and unlawful
discrimination was practiced, and that of one hundred and
twenty-five veniremen summoned in Scott County, all were partisan
Goebel Democrats except three, and of one hundred and sixty-eight
veniremen summoned in the adjoining County of Bourbon, all were
partisan Democrats except three, so that, of the aggregate of two
hundred and ninety summoned, two hundred and eighty-four were
Goebel Democrats and six were Republicans, notwithstanding the fact
that there were many hundreds of citizens in each of said counties
qualified for jury service who were Republicans, or Independent
Democrats, and not Goebel partisans."
"Your petitioner states that, at said second trial, he objected
to the formation of a jury from the veniremen summoned as
hereinbefore stated, and moved to discharge the entire venire on
the ground that he could not obtain a fair trial before a jury
selected therefrom, and filed in support of said objection an
affidavit."
The affidavit referred to is given in full in the margin.
*
Page 201 U. S. 11
The petition then proceeds:
"Your petitioner states that, although the statements in said
affidavit were true and known to be true by the court, he was
forced to submit to trial before a jury composed entirely of Goebel
Democrats, your petitioner
Page 201 U. S. 12
always having been a Republican in politics, as hereinabove
stated; and, as hereinabove stated, your petitioner was at said
trial found guilty and sentenced to imprisonment for life by the
judgment of said Scott Circuit Court; that your petitioner took an
appeal from the judgment so rendered, which judgment was
Page 201 U. S. 13
reversed by the Court of Appeals of Kentucky at the September,
1902, term; that your petitioner was again and for the third time
tried at a special term of the Scott Circuit Court under the charge
hereinabove mentioned, which trial was begun and holden on the
third day of August, 1903, and that, of the number of one hundred
and seventy-six veniremen summoned from Bourbon County, from which
the jury was selected, three only, or possibly four, were
Republicans, and the remaining one hundred and seventy-three (two)
were Goebel Democrats and were summoned for that reason, and
because they differed politically from your petitioner, whereas
there were many hundreds of Republicans and Independent Democrats
in said county qualified for jury service, but your petitioner
states they were purposely avoided and passed by in summoning said
veniremen, and that said trial jury was not selected impartially,
as required by law; that in the year 1896, there were over
twenty-six hundred votes in said county for William McKinley,
Republican candidate for President of the United States, and about
twenty-two hundred votes cast for William J. Bryan, his Democratic
opponent; that, in the year 1899, William S. Taylor, Republican
candidate for Governor of Kentucky, received twenty-seven more
votes in said county than were cast for said William Goebel, his
Democratic opponent, and that a jury impartially selected could not
have been and would not have been, as it was, composed entirely of
Goebel Democrats -- on his said third trial, one juror, a Goebel
supporter but of doubtful politics, excepted."
"Your petitioner further represents that at the third and last
trial of this petitioner in said Scott Circuit Court, the judge
thereof entered an order directing the Sheriff of said Scott County
to summon two hundred men from Bourbon County for jury service;
that this petitioner's attorneys asked the court to admonish the
sheriff to summon an equal number of men of each political party;
that this request was refused, and thereupon counsel for this
petitioner asked the court to instruct the sheriff to summon the
talesmen as he came to them,
Page 201 U. S. 14
regardless of political affiliation. This the court also refused
to do."
"Your petitioner further states that said trial resulted in a
verdict of guilty, affixing the death sentence, and a judgment was
thereupon entered, from which judgment an appeal was taken to the
Court of Appeals of Kentucky, and on December 6, 1904, the judgment
of conviction was for the third time reversed by said court, and
that it is the purpose and intention of the Commonwealth of
Kentucky to subject this petitioner to a fourth trial under said
charge within a short time in said Scott Circuit Court."
"Your petitioner further respectfully states that, at each of
said three trials, the facts in relation to the jurors given or
hereinbefore recited were embraced in affidavits filed in support
of challenges to the panel and the venire and objections to the
formation of the jury from the men summoned as hereinabove
mentioned, and were also embraced in the motions and grounds for
new trial prepared and filed on behalf of this petitioner at each
of said trials, but that they were disregarded by the court, and
your petitioner's challenge to the panels, to the venire, and the
motions for new trials in each instance overruled; that, by reason
of § 281 of the Criminal Code of the state, hereinbefore quoted,
this petitioner was and is denied the right of any exception on
said grounds, and the Court of Appeals of Kentucky, on each of the
three appeals hereinbefore set forth, have decided that no
irregularity in the summoning or impaneling of the jury is a
reversible error, and they are powerless to reverse any judgment of
said court by reason of such facts, and have held said law to be
valid, and such law is not the law of this case, and said Court of
Appeals of Kentucky are powerless upon any future appeal to reverse
any judgment of said court by reason of a repetition of the acts
hereinbefore set forth, or for any other irregularity or improper
conduct in the formation of a jury, no matter how prejudicial to
the substantial rights of your petitioner they may be, and must be
followed and cannot be disregarded by this honorable court. "
Page 201 U. S. 15
"Your petitioner therefore prays this honorable court that the
said indictment and the prosecution pending thereunder in this
honorable court against your petitioner be removed into the circuit
court of the United States for the eastern district for trial at
the next ensuing term of said circuit court, and your petitioner
will ever pray. "
Page 201 U. S. 22
MR. JUSTICE Harlan delivered the opinion of the Court.
Powers, the accused, was indicted in the Circuit Court of
Franklin County, Kentucky, for the crime of having been an
accessory before the fact to the murder of William Goebel, who was
assassinated in that county on the thirtieth day of January, 1900.
The prosecution was removed by change of venue to the Circuit Court
of Scott County. In the latter court, the accused was found guilty,
and his punishment fixed by the jury at confinement in the state
penitentiary for life. Upon appeal
Page 201 U. S. 23
to the Court of Appeals of Kentucky, the judgment was reversed
and a new trial ordered. 110 Ky. 386. At the second trial, the
verdict was guilty, and the punishment was again fixed at
confinement in the penitentiary for life. Upon appeal, that
judgment was reversed and a new trial ordered. 114 Ky. 239. A third
trial occurred, which resulted in a verdict of guilty, with the
punishment fixed at death. This judgment was also reversed, and the
case sent back for a new trial. 26 Ky. 1111.
When the case came on for trial the fourth time, the accused
tendered and offered to file in the state court his petition
praying, upon grounds therein stated (and which appear in the above
statement), that the prosecution be removed for trial into the
Circuit Court of the United States for the Eastern District of
Kentucky. But the state court would not allow the petition to be
filed. Subsequently, a partial transcript of the record was filed
in the federal court, and the case was docketed in that court. The
commonwealth objected to the filing of the transcript from the
state court and to the docketing of the case in the federal court,
and moved to vacate the order of filing and docketing. That motion
was overruled.
Thereupon the accused, by his counsel, presented to the federal
court an application for a writ of habeas corpus in order that he
might be discharged from the custody of the state authorities. For
the reasons set forth in the opinion of that court, the application
was granted and a writ ordered to issue commanding the jailer of
Scott County, who held the accused in custody for the state, to
deliver him into the custody of the marshal of the federal court,
which was done, that officer being directed to keep the accused
confined in the county jail of Campbell County, Kentucky, until the
further order of the federal court. 139 F. 452. From that order the
Commonwealth of Kentucky has prosecuted the above appeal (No. 393),
the sole ground of such appeal being that the federal court was
without jurisdiction to make the
Page 201 U. S. 24
order allowing the writ of habeas corpus and taking the accused
from the custody of the state authorities. The accused has moved to
dismiss the appeal because the remedy of the commonwealth was by a
writ of mandamus.
The commonwealth also asked leave to file a petition for
mandamus to compel the federal court to remand the case to the
state court and to restore the custody of the accused to the state
authorities. Leave to file was granted, and the federal judge,
having made his return, submitted the rule upon the record of the
case, including the opinion filed by the court below when the writ
of habeas corpus was awarded to take the accused from the custody
of the state authorities. This is case No. 15, Original.
The fundamental question to be determined is whether the removal
of this criminal prosecution from the state court into the federal
court was authorized by any statute of the United States. We say by
any statute because the subordinate judicial tribunals of the
United States can exercise only such jurisdiction, civil and
criminal, as may be authorized by acts of Congress. Chief Justice
Marshall, speaking for this Court, has said that
"courts which originate in the common law possess a jurisdiction
which must be regulated by their common law, until some statute
shall change their established principles; but courts which are
created by written law, and whose jurisdiction is defined by
written law, cannot transcend that jurisdiction."
Ex Parte
Bollman, 4 Cranch 75,
8 U. S. 93;
United States v.
Hudson, 7 Cranch 32,
11 U. S. 33;
Cary v.
Curtis, 3 How. 236,
44 U. S. 245;
M'Intire v.
Wood, 7 Cranch 504,
11 U. S. 506;
United States v.
Eckford, 6 Wall. 484,
73 U. S. 488;
Sheldon v.
Sill, 8 How. 441,
49 U. S. 449;
Jones v. United States, 137 U. S. 202,
137 U. S.
211.
The adjudged cases make it clear that, whatever the nature of a
civil suit or criminal proceeding in a state court, it cannot be
removed into a federal court unless warrant therefor be found in
some act of Congress.
Page 201 U. S. 25
We are now to enquire whether the case was removable from the
state court in virtue of any act of Congress.
The removal of this prosecution into the federal court was
rested on §§ 641 and 642 of the Revised Statutes, which are as
follows:
"SEC. 641. When any civil suit or criminal prosecution is
commenced in any state court, for any cause whatsoever, against any
person who is denied or cannot enforce in the judicial tribunals of
the state, or in the part of the state where such suit or
prosecution is pending, any right secured to him by any law
providing for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction of the United
States, . . . such suit or prosecution may, upon the petition of
such defendant, filed in said state court at any time before the
trial or final hearing of the cause, stating the facts and verified
by oath, be removed, for trial, into the next circuit court to be
held in the district where it is pending. Upon the filing of such
petition, all further proceedings in the state courts shall cease
and shall not be resumed except as hereinafter provided. But all
bail and other security given in such suit or prosecution shall
continue in like force and effect as if the same had proceeded to
final judgment and execution in the state court. . . ."
"SEC 642. When all the acts necessary for the removal of any
suit or prosecution, as provided in the preceding section, have
been performed, and the defendant petitioning for such removal is
in actual custody on process issued by said state court, it shall
be the duty of the clerk of said circuit court to issue a writ of
habeas corpus
cum causa, and of the marshal, by virtue of
said writ, to take the body of the defendant into his custody, to
be dealt with in said circuit court according to law and the orders
of said court, or, in vacation, of any judge thereof, and the
marshal shall file with or deliver to the clerk of said state court
a duplicate copy of said writ."
The contention of the commonwealth is that the decisions of this
Court wholly preclude the suggestion that section 641 authorized
the removal of this case into the federal court. In review of this
contention we must see what has been heretofore decided.
Page 201 U. S. 26
Among the cases to which our attention has been called, the
first one in point of time involving the construction of section
641 is
Ex Parte Wells, 3 Woods, 128, 132, determined in
the Circuit Court of the United States for the District of
Louisiana, Mr. Justice Bradley presiding. The accused there sought
to remove the prosecution from the state court upon the ground,
among others, that such vindictive prejudice existed against them
on the part of the lawmaking and law-administering authorities of
the state that they would be denied their rights as citizens in the
state court, as well as before any jury that might be impaneled
therein under the then-existing jury law of the state;
consequently, they would not be able to enforce their rights in
said court. It was also alleged that the state court and its
officers had so manipulated the local law as to deprive the accused
of an impartial jury, and that they would be deprived of the full
and equal benefit of the laws and proceedings for the security of
their persons. The court, having found that there was nothing in
the Constitution or laws of the state that was hostile to the equal
rights of the accused in any particular, said:
"The allegations with regard to the manipulation of the law in
such manner as to secure a jury inimical to the petitioners, and
with regard to the existence of a general prejudice against them in
the minds of the court, the jurors, the officials, and the people,
are not within the purview of the statute authorizing a removal.
The Fourteenth Amendment to the Constitution, which guarantees the
equal benefit of the laws, on which the present application is
based, only prohibits state legislation violative of said right; it
is not directed against individual infringements thereof. The civil
rights bill of 1866 was broader in its scope, undertaking to
vindicate those rights against individual aggression -- but still
only when committed under color of some 'law, statute, ordinance,
regulation, or custom.' And when that provision in this law, which
is transferred to section 641 of the Revised Statutes, gave the
right to remove to the United States courts a cause commenced in a
state court, against a person who is denied or cannot enforce
any
Page 201 U. S. 27
of the rights secured by the act, it had reference to a denial
of those rights or impediments to their enforcement, arising from
some state law, statute, regulation, or custom. It is only when
some such
hostile state legislation can be shown to exist,
interfering with the party's right of defense, that he can have his
cause removed to the federal court."
In
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S. 309,
100 U. S. 312,
which was an indictment in a court of West Virginia against a
person of the African race for the crime of murder, the accused,
before the trial commenced, presented his petition for the removal
of the case into the United States court upon the ground that the
laws of the state, in relation to both grand and petit juries,
discriminated against colored citizens because of their race, in
violation of the Constitution and the laws of the United States.
The petition for removal was denied, and the accused was forced to
a trial in the state court, found guilty, and sentenced. That
judgment was affirmed by the Supreme Court of Appeals of the state,
and the case was brought here upon writ of error. This Court held
the state statute to be unconstitutional, as making an illegal
discrimination against negroes because of their race. After
referring to what was said in
United States v. Reese,
92 U. S. 214, to
the effect that rights and immunities created by or dependent upon
the Constitution of the United States can be protected by Congress
and that the form and manner of the protection may be such as
Congress, in the legitimate exercise of its legislative discretion,
shall provide, the Court said:
"There is express authority to protect the rights and immunities
referred to in the Fourteenth Amendment, and to enforce observance
of them by appropriate congressional legislation. And one very
efficient and appropriate mode of extending such protection and
securing to a party the enjoyment of the right or immunity is a law
providing for the removal of his case from a state court, in which
the right is denied
by the state law, into a federal
court, where it will be upheld. This is an ordinary mode of
protecting rights and immunities conferred by the federal
Constitution and laws. Section 641 is
Page 201 U. S. 28
such a provision."
Adverting to the act from which sections 1977 and 1978 of the
Revised Statutes were taken, the Court further said:
"This act puts in the form of a statute what had been
substantially ordained by the constitutional amendment. It was a
step towards enforcing the constitutional provisions. Section 641
was an advanced step, fully warranted, we think, by the fifth
section of the Fourteenth Amendment."
Observe that this was the case of a state statute held to
prevent the enforcement in the judicial tribunals of the state of
rights secured to the accused by the Constitution of the United
States. Upon that point, this Court said:
"That the petition of the plaintiff in error, filed by him in
the state court before the trial of his case, made a case for
removal into the federal circuit court under section 641 is very
plain if, by the constitutional amendment and section 1977 of the
Revised Statutes, he was entitled to immunity from discrimination
against him in the selection of jurors because of their color, as
we have endeavored to show that he was. It set forth sufficient
facts to exhibit a denial of that immunity and
a denial by the
statute law of the state. There was error, therefore, in
proceeding to the trial of the indictment against him after his
petition was filed, as also in overruling his challenge to the
array of the jury, and in refusing to quash the panel."
In
Virginia v. Rives, 100 U. S. 313,
100 U. S. 321,
which was an indictment in a court of Virginia against colored
persons charged with the crime of murder, the accused moved that
the venire, which was composed entirely of white men, should be
modified so as to allow one-third of the jury to be composed of
colored men. That motion was overruled. Thereupon the defendants,
before the trial, sought by petition to have the prosecution
removed into the federal court upon the ground that the right
secured to them by the act of Congress providing for the equal
civil rights of all citizens of the United States was denied to
them in
the judicial tribunals of the county in which the
prosecution was pending; also upon the ground that the grand
jury finding the indictment had been organized in discrimination
against the
Page 201 U. S. 29
colored race because of their race. The application to remove
the case was denied, and the defendants were tried in the state
court and convicted. The case at that stage of the trial was
docketed, at the motion of the accused, in the federal court, and,
upon writ of habeas corpus sued out from that court, they were
taken from the custody of the state and placed in the custody of
the United States marshal. The Commonwealth of Virginia obtained
from this Court a rule against the judge of the federal court to
show cause why the accused should not be redelivered to the
authorities of the state, to be dealt with according to the laws of
that commonwealth. The judge made his return to the rule, averring
that the indictments were removed into the federal court by virtue
of section 641 of the Revised Statutes. It is important to notice
that there was no claim in that case that either the Constitution
or laws of Virginia denied the civil rights of colored people, or
stood in the way of their enforcing the equal protection of the
laws. The law, this Court said, made no discrimination against them
because of their color, nor any discrimination at all. And further,
referring to the officer charged with the duty of selecting jurors,
this Court said:
"He made himself liable to punishment at the instance of the
state and under the laws of the United States. In one sense,
indeed, his act was the act of the state, and was prohibited by the
constitutional amendment. But,
inasmuch as it was a criminal
misuse of the state law, it cannot be said to have been such a
'denial or disability to enforce in the judicial tribunals of the
state' the rights of colored men
as is contemplated by the
removal act. Section 641. It is to be observed that act gives
the right of removal only to a person 'who is denied, or cannot
enforce, in the judicial tribunals of the state, his equal civil
rights.' And this is to appear before trial.
When a statute of
the state denies his right, or interposes a bar to his
enforcing it in the judicial tribunals, the presumption is fair
that they will be controlled by it in their decisions, and in such
a case a defendant may affirm on oath what is necessary for a
removal. Such a case is clearly within the provisions of section
641. But
Page 201 U. S. 30
when a subordinate officer of the state, in violation of state
law, undertakes to deprive an accused party of a right which the
statute law accords to him, as in the case at bar, it can hardly be
said that he is denied, or cannot enforce, 'in the judicial
tribunals of the state' the rights which belong to him. In such a
case, it ought to be presumed the court will redress the wrong. If
the accused is deprived of the right, the final and practical
denial will be in the judicial tribunal which tries the case, after
the trial has commenced. If, as in this case, the subordinate
officer whose duty it is to select jurors fails to discharge that
duty in the true spirit of the law; if he excludes all colored men
solely because they are colored; or if the sheriff to whom a venire
is given, composed of both white and colored citizens, neglects to
summon the colored jurors only because they are colored; of if a
clerk whose duty it is to take the twelve names from the box
rejects all the colored jurors for the same reason -- it can with
no propriety be said the defendant's right is denied by the state,
and cannot be enforced in the judicial tribunals. The court will
correct the wrong, will quash the indictment or the panel, or if
not, the error will be corrected in a superior court.
We cannot
think such cases are within the provisions of section 641. Denials
of equal rights in the action of the judicial tribunals of the
state are left to the revisory powers of this Court."
The question as to the scope of section 641 of the Revised
Statute again arose in the subsequent cases of
Neal v.
Delaware, 103 U. S. 370,
103 U. S. 386;
Bush v. Kentucky, 107 U. S. 110,
107 U. S. 116;
Gibson v. Mississippi, 162 U. S. 565,
162 U. S. 581,
162 U. S. 584,
and
Smith v. Mississippi, 162 U.
S. 592,
162 U. S. 600.
In each of these cases, it was distinctly adjudged, in harmony with
previous cases, that the words in section 641 --
"who is denied or cannot enforce in the judicial tribunals of
the state, or in the part of the state where such suit or
prosecution is pending, any right secured to him by any law
providing for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction of the United
States"
-- did not give the right of
removal unless
Page 201 U. S. 31
the Constitution or the laws of the state in which the criminal
prosecution was pending denied or prevented the enforcement in the
judicial tribunals of such state of the equal rights of the accused
as secured by any law of the United States. Those cases, as did the
prior ones, expressly held that there was no right of
removal under section 641, where the alleged
discrimination against the accused, in respect of his equal rights,
was due to the illegal or corrupt acts of administrative officers,
unauthorized by the Constitution or laws of the state, as
interpreted by its highest court. For wrongs of that character, the
remedy, it was held, is in the state court, and ultimately in the
power of this Court, upon writ of error, to protect any right
secured or granted to an accused by the Constitution or laws of the
United States, and which has been denied to him in the highest
court of the state in which the decision, in respect of that right,
could be had.
In
Gibson v. Mississippi, supra, the words of this
Court as to the scope of section 641 were very emphatic. In that
case, there was a conviction in a state court of a negro for the
crime of murder, and in which one of the questions, upon writ of
error to the highest court of that state, was as to the action of
the trial court in denying a petition for the removal of the
prosecution to the federal court. This Court said:
"When the Constitution and laws of a state, as interpreted by
its highest judicial tribunal, do not stand in the way of the
enforcement of rights secured equally to all citizens of the United
States, the possibility that, during the trial of a particular
case, the state court may not respect and enforce the right to the
equal protection of the laws constitutes no ground, under the
statute, for
removing the prosecution into the circuit
court of the United States in advance of a trial. We may repeat
here what was said in
Neal v. Delaware -- namely that, in
thus construing the statute,"
"we do not withhold from a party claiming that he is denied, or
cannot enforce in the judicial tribunals of the state, his
constitutional equality of civil rights, all opportunity of
appealing to the courts of the United States for redress
Page 201 U. S. 32
of his wrongs. For if not entitled, under the statute, to the
removal of the suit or prosecution, he may, when denied in the
subsequent proceedings of the state court or in the execution of
its judgment, any right, privilege, or immunity given or secured to
him by the Constitution or laws of the United States, bring the
case here for review. . . ."
"We therefore held in
Neal v. Delaware that Congress
had not authorized a removal of the prosecution from the state
court where jury commissioners or other subordinate officers had,
without authority derived from the constitution and laws of the
state, excluded colored citizens from juries because of their
race."
Again:
"The application was to remove the prosecution from the state
court, and a removal, as we have seen, could not be ordered upon
the ground simply that citizens of African descent had been
improperly excluded because of their race, and without the sanction
of the constitution and laws of the state, from service on previous
grand juries or from service on the particular grand jury that
returned the indictment against the accused. We do not overlook in
this connection the fact that the petition for the removal of the
cause into the federal court alleged that the accused, by reason of
the great prejudice against him on account of his color, could not
secure a fair and impartial trial in the county, and that he prayed
an opportunity to subpoena witnesses to prove that fact. Such
evidence, if it had been introduced, and however cogent, could not,
as already shown, have entitled the accused to the
removal
sought, for the alleged existence of race prejudice interfering
with a fair trial was not to be attributed to the constitution and
laws of the state. It was incumbent upon the state court to see to
it that the accused had a fair and impartial trial, and to set
aside any verdict of guilty based on prejudice of race."
The cases to which we have adverted had reference, it is true,
to alleged discriminations against negroes because of their race.
But the rules announced in them equally apply where the accused is
of the white race. Section 641, as well as the Fourteenth Amendment
of the Constitution, is for the benefit of all
Page 201 U. S. 33
of every race whose cases are embraced by its provisions, and
not alone for the benefit of the African race.
We have not overlooked the suggestion, earnestly pressed upon
our attention, that it is impossible for the accused to obtain a
fair trial in the locality where the prosecution is pending.
Indeed, the suggestion is, in effect, that there was a deliberate
purpose on the part of those charged with the administration of
justice in that locality to take his life, under the forms of law,
even if the facts did not establish his guilt of the crime charged.
It is true that, looking alone at the petition for removal, the
trials of the accused disclose such misconduct on the part of
administrative officers connected with those trials as may well
shock all who love justice and recognize the right of every human
being accused of crime to be tried according to law. The case, as
made by the record, it must be conceded, tends to show, if it does
not justify the belief, that administrative officers having
connection with the trial of the accused had it in mind at each
trial to exclude from the jury, so far as it was possible to do so,
every person, however competent, who belonged to the same political
party as the accused. In his separate opinion, in 26 Ky. 1111,
1117, Judge Barker, of the Court of Appeals of Kentucky, referring
to the third trial of the accused, said:
"It is clear that the trial judge was of opinion that it was not
an offense against the Fourteenth Amendment or a denial of the
equal protection of the laws to the defendant to exclude
Republicans [the accused being a Republican in politics] from the
jury, solely because they were Republicans, provided the selected
Democrats [the deceased Goebel being a Democrat in politics] were
possessed of the statutory qualifications required for jury
service."
It is appropriate here to recall that the circuit court,
referring to the petition for removal, said:
"The Commonwealth of Kentucky has not filed a reply to said
petition for removal or in any way taken issue with the defendant
as to any of the allegations thereof. Said allegations must
therefore be accepted as true, save insofar as they may
contradicted by the transcript
Page 201 U. S. 34
on file herein. In the case of
Dishon v. Cincinnati, N. O.
& T. P. Ry. Co., 133 F. 471, Judge Richards, in discussing
the affirmative allegations of a petition for removal in a civil
suit under sections 751-755, Rev.Stat., said:"
"If these averments were not true, the plaintiff should have
denied them, and an issue would then have been made for the court
below to try and determine. No answer was filed; no issue in any
other way was taken. The plaintiff contented himself with making a
motion to remand, and which only raised a legal question -- namely
whether, upon the facts stated in the petition for removal, taken
in connection with the record, a case for removal was made
out."
In the case of
Whitten v. Tomlinson, 160 U.
S. 231, JUSTICE GRAY, in referring to a petition for a
writ of habeas corpus, under sections 751-755, Rev.Stat., said:
"In a petition for a writ of habeas corpus, verified by oath of
the petitioner, as required by Rev.Stat. section 754, facts duly
alleged may be taken to be true, unless denied by the return, or
controlled by other evidence. But no allegation of fact in the
petition can be assumed to be admitted unless distinct and
unambiguous."
The allegations of the petition for removal are not borne out by
the transcript in all their detail. They are, however, borne out to
a substantial degree, and are not contradicted in any substantial
particular. It establishes the discrimination complained of in the
selection of the jurors by the subordinate officers having to do
therewith on the second and third trials, and that, on both trials
the Scott Circuit Court held that such discrimination was not
illegal and the defendant had no right to complain thereof, it not
being claimed that the jurors selected did not possess the
statutory qualifications. As to the first trial, all that the
transcript shows is that it was one of the grounds of defendant's
motion for new trial that the circuit judge, after the regular
panel was exhausted, had refused to draw from the wheel the names
of the jurors placed there in the fall of 1899, before any motive
for discrimination had arisen, concerning which Judge Du Relle had
this to say in the opinion delivered by him on behalf of the
majority of the Court of Appeals
Page 201 U. S. 35
on the first appeal:
"In the grounds relied on in the motion for new trial, it is
stated that the court overruled the motion of appellant, after the
regular panel was exhausted, to draw the remaining names necessary
to complete the jury from the jury wheel. It is to be regretted
that, in a case concerning which so much feeling existed, the
simple and easy mode was not adopted which would have put beyond
cavil the question of the accused having a trial by jury
impartially selected. This will doubtless be done upon the
succeeding trial."
Taking, then, the facts to be as represented in the petition for
removal, still the remedy of the accused was not to have
prosecution removed into the federal court, that court not being
authorized to take cognizance of the case upon removal from the
state court. It is not contended, as it could not be, that the
Constitution and laws of Kentucky deny to the accused any rights
secured to him by the Constitution of the United States or by any
act of Congress. Such being the case, it is impossible, in view of
prior adjudications, to hold that this prosecution was removable
into the circuit court of the United States by virtue of section
641 of the Revised Statutes. Such a case as the one before us has
not been provided for by any act of Congress -- that is, a circuit
court of the United States has not been authorized to take
cognizance of a criminal prosecution commenced in a state court for
an alleged crime against the state where the constitution and laws
of such state do not permit discrimination against the accused in
respect of such rights as are specified in the first clause of
section 641. This Court, while sustaining the subordinate courts of
the United States in the exercise of such jurisdiction as has been
lawfully conferred upon them, must see to it that they do not usurp
authority not affirmatively given to them by acts of Congress. In
M. C. & L. M. Railway Co. v. Swan, 111 U.
S. 379,
111 U. S. 382,
we said that
"the rule, springing from the nature and limits of the judicial
power of the United States, is inflexible and without exception
which requires this Court, of its own motion, to deny its own
jurisdiction, and, in the exercise of its appellate power, that
of
Page 201 U. S. 36
all other courts of the United States in all cases where such
jurisdiction does not affirmatively appear in the record on which,
in the exercise of that power, it is called to act. On every writ
of error or appeal, the first and fundamental question is that of
jurisdiction -- first of this Court and then of the court from
which the record comes. This question the Court is bound to ask and
answer for itself, even when not otherwise suggested and without
respect to the relation of the parties to it."
This principle has been again and again reaffirmed.
Great
Southern Fire Proof Hotel Co. v. Jones, 177 U.
S. 449,
177 U. S. 453,
and authorities there cited.
Now it affirmatively appears of record that the circuit court
has taken jurisdiction of this case on removal from the state court
when, as we hold, no act of Congress authorized it do so. We
cannot, in fidelity to the law as declared in former cases,
overlook this defect of jurisdiction in the court below or fail to
express our inability to concur in the views of the learned court
below upon this point.
The circuit court said:
"I therefore conclude that the prior action of the Scott Circuit
Court denying the defendant the equal protection of the laws is a
real hindrance and obstacle to his asserting his right thereto in a
future trial therein -- just as real as an unconstitutional statute
would be -- and that the defendant is denied the equal protection
of the laws in said court within the meaning of said section, and
entitled to a removal on account thereof. He is denied in said
court the equal protection of the laws because he has been denied,
and such denial has never been set aside, but remains in full force
and effect. . . . By an 'inability to enforce in the judicial
tribunals of the state' is meant, as I construe the statute, any
judicial tribunal of the state that may have jurisdiction of the
prosecution."
This view is met by what has been said in former cases -- namely
that the words in section 641 -- "who is denied or cannot enforce
in the judicial tribunals of the state" -- have no application to
any case where the rights secured to an accused
"by any law providing for the equal civil rights of citizens of
the United States,
Page 201 U. S. 37
or of all persons within the jurisdiction of the United
States,"
are recognized or are not denied by the Constitution or laws of
the state in which the prosecution is pending.
Under this holding, the accused is not deprived of opportunity
to have his rights, of whatever nature, which are secured or
guaranteed to him by the Constitution or laws of the United States
fully protected by a federal court. But, it is said that the action
of the trial court in refusing to quash the indictment or the panel
of petit jurors, although the motion to quash was based on federal
grounds, cannot, under the laws of Kentucky, be reviewed by the
Court of Appeals, the highest court of that commonwealth. If such
be the law of Kentucky, as declared by the statutes and by the
Court of Appeals of that commonwealth, then, after the case is
disposed of in that court by final judgment, in respect of the
matters of which, under the local law, it may take cognizance, a
writ of error can run from this Court to the trial court as the
highest court of Kentucky in which a decision of the federal
question could be had, and this Court in that event, upon writ of
error, reviewing the final judgment of the trial court, can
exercise such jurisdiction in the case as may be necessary to
vindicate any right, privilege, or immunity specially set up or
claimed under the Constitution and laws of the United States, and
in respect of which the decision of the trial court is made final
by the local law -- that is, it may reexamine the final judgment of
the trial court so far as it involved and denied the federal right,
privilege, or immunity asserted. This must be so, else it will be
in the power of a state to so regulate the jurisdiction of its
courts as to prevent this Court from protecting rights secured by
the Constitution and improperly denied in a subordinate state
court, although specially set up and claimed. What we have said is
clear from section 709 of the Revised Statutes, which declares
that
"a final judgment or decree in any suit in the highest court of
a state in which a decision in the suit could be had . . . where
any title, right, privilege, or immunity is claimed under the
Constitution, . . . and the decision is against the title, right,
privilege, or immunity,
Page 201 U. S. 38
specially set up or claimed, by either party, under such
Constitution, . . . may be reexamined and reversed or affirmed in
the Supreme Court upon a writ of error."
Looking at the object of that section, it must be held that this
Court has jurisdiction, upon writ of error, to reexamine the final
judgment of a subordinate state court denying a federal right,
specially set up or claimed, if, under the local law, that court is
the highest court of the state entitled to pass upon such claim of
federal right. The great case of
Cohen v.
Virginia, 6 Wheat. 264, which was a criminal
prosecution for a misdemeanor, was brought to this Court, upon writ
of error, from the Quarterly Session Court for the Borough of
Norfolk, Virginia, and our jurisdiction was sustained upon the
ground that such court was the highest court of the state in which,
under the laws of Virginia, that case was cognizable. In
Downham v.
Alexandria, 9 Wall. 659, which was a suit for taxes
against a dealer in liquors, the Court said:
"The legislature, then, having thought fit to make the judgment
of the district court in this case final and without appeal, that
court is, for this case, the highest court in which the decision
could be made, and the writ of error is therefore warranted by the
act of Congress, and regular."
In
Gregory v.
McVeigh, 23 Wall. 294,
90 U. S. 306,
which was a writ of error to the Corporation Court of Alexandria,
Virginia, and in which there was a motion to dismiss for want of
jurisdiction, this Court said:
"The Court of Appeals is the highest court in the State of
Virginia. If a decision of a suit could be had in that court, we
must wait for such a decision before we can take jurisdiction, and
then can only examine the judgment of that court. If, however, the
suit is one of which that court cannot take jurisdiction, we may
reexamine the judgment of the highest court which, under the laws
of the state, could decide it. . . . We think, therefore, that the
judgment of the Corporation Court of the City of Alexandria is the
judgment of the highest court of the state in which a decision of
the suit could be had, and that we may reexamine it upon
error."
In
Bergemann v. Backer, 157 U.
S. 655,
157 U. S. 659, a
criminal prosecution for murder
Page 201 U. S. 39
in a subordinate court of New Jersey, this Court said:
"If the proceedings in the court of oyer and terminer could not,
under the laws of New Jersey, be reviewed in a higher court of that
state except upon the allowance of a writ of error by such court or
by some judge, and if such allowance was refused, then the judgment
of the court of original jurisdiction was, within the meaning of
the acts of Congress, the judgment of the highest court of the
state in which a determination of the case could be had, and such
judgment could have been, upon writ of error reexamined here, if it
had denied any right, privilege, or immunity specially set up and
claimed under the Constitution of the United States."
So, in
Missouri, Kansas &c. Ry. Co. v. Elliott,
184 U. S. 530,
184 U. S. 539,
in which the defendant made a claim of immunity in virtue of an
authority exercised under the United States, it was held that our
writ of error ran not to the Supreme Court of Missouri, but to the
Kansas City Court of Appeals -- the highest court in which, under
the law of that state, the question as to that immunity could be
decided.
It is necessary to notice one other point made in behalf of the
accused. At each of the trials, he pleaded in bar of the
prosecution a pardon granted to him on the tenth day of March,
1900, by William S. Taylor, who was alleged to have been at the
time the duly elected, qualified, actual, and acting Governor of
Kentucky, having in his possession and under his control all the
books, papers, records, and archives, as well as the executive
mansion, belonging to the office of governor. That pardon, it is
alleged, was accepted by the accused. It is further alleged that,
at the time said pardon was issued, Taylor had been recognized,
regarded, and treated as the lawful Governor of Kentucky by the
executive power and executive department of the government of the
United States, including the President, the Attorney General, and
the Postmaster General, and by the postmaster at Frankfort, the
capital of Kentucky. The petition for removal alleged that the
court in which the accused was tried, as well as the Court of
Appeals of Kentucky, had refused to recognize said pardon as having
any legal effect, and had
Page 201 U. S. 40
thereby denied to him the equal civil rights and the equal
protection of the laws secured to him by the above provisions of
the Constitution and laws of the United States; consequently, it
was contended, he was denied, and could not enforce, in any
judicial tribunal of Kentucky, the rights which said pardon gave
him.
Manifestly, in view of what has already been said, this question
as to the pardon of the accused does not make a case of removal on
the ground of the denial or inability to enforce in the judicial
tribunals of Kentucky of a right secured to the accused "by any law
providing for the equal civil rights of citizens of the United
States or of all persons within the jurisdiction of the United
States." Whether the nonrecognition by the courts of the state of
the validity of the alleged pardon involved a denial of any right
secured to the accused by any other law or by the Constitution of
the United States we need not now consider. As the circuit court
could not, in virtue of section 641, take cognizance of this
prosecution or removal, we cannot properly pass upon the merits of
any question of federal right which might arise in the case. It is
sufficient to say that if the accused, by reason of the Taylor
pardon, acquired any right under the Constitution or laws of the
United States, and if at the next trial of his case, that right,
having been specially set up and claimed, should be denied by the
highest court of the state in which a decision of that question
could be had, such action of that court in respect of that pardon
can be reviewed here upon writ of error. We do not perceive that
any question arising out of the pardon could make a case under
section 641 for the removal of the prosecution from the state
court.
We are all of opinion that the order awarding the writ of habeas
corpus
cum causa must be reversed, with directions to set
aside that order as well as the order docketing the case in the
circuit court of the United States; also, that the rule in relation
to mandamus must be made absolute, the prosecution remanded to the
state court, and the custody of the accused surrendered to the
state authorities.
It is so ordered.
*
"The affiant states that he ought not to be required to go to
trial before a jury drawn as a panel for service at the present
term of this Court or already summoned from the County of Bourbon,
for the following reasons, namely: that the political canvass in
this state in 1899, in which the late William Goebel was candidate
for the office of governor, was a heated and angry one, and tended
to create great antagonism in the minds of his political adherents
against those who opposed; that this canvass was followed by a
contest before the state legislature for said office, in which the
deepest and fiercest passions were stirred in the minds of his
followers in this county, as well as in other counties of the
state, including the County of Bourbon; that, during that contest,
the said Goebel was killed, which killing tended still further to
deepen and intensify the political passions of his friends and
admirers in this county and in the County of Bourbon and throughout
the state against this affiant, who was a candidate for a state
office on the Republican ticket in the said year of 1900. The
passions thus created have since that time been stimulated and fed
by the political contests which have since followed, and are still
in existence, in this county and Bourbon County. Affiant says that
at a special term of this Court in July, 1900, he was put on trial
in this county, charged with being an accessory before the fact to
the killing of said William Goebel, and was by the jury found
guilty. From the judgment of the court at that term, the affiant
appealed to the appellate court, the appeal being taken in the
early part of September in said year; that at the subsequent
October term of said court, jury commissioners for this county were
selected whose duty it was to select a large number of names and
place them in the jury wheel for service during the year 1901."
"The three commissioners appointed were John Bradford, Ben
Mallory, and H. H. Haggard, all three of whom were partisan
supporters and allies, in the contest referred to, of the said
William Goebel, deceased. The said jury commissioners discharged
the work assigned to them by placing in said jury wheel the names
of two hundred citizens of Scott County, for purposes of said jury
service; that at the February term, 1901, of the circuit court of
this county, and at the May term of the said year, seventy-five or
more names were drawn from the jury wheel for said service; that at
the present term there were drawn from the said jury wheel for the
purpose of securing a jury in this case about one hundred and
twenty-five names, that being the entire number of names placed in
the wheel. Affiant further states that, at the regular state
election of 1900, in the County of Scott, there were cast for the
Democratic candidate, in round numbers, 2,500 votes, and for the
Republican candidate 2,100 votes; that of these 2,100 votes, not
less than 1,300 were white voters of equal character, standing, and
intelligence with the white voters who cast their votes for the
Democratic party at said election."
"Affiant says that, despite these conditions, which were shown
to exist in this county, that of the 200 names placed in the jury
wheel by the aforesaid commissioners and drawn out as herein
described, only five were supporters of the Republican party, and
the other 195 being active partisan friends and supporters of the
party with which William Goebel was identified as its leader, and
whose minds and passions had been inflamed against this affiant by
continued political agitation."
"The affiant further says that of the five Republicans whose
names were placed in the jury wheel for jury service by said
commissioners as before stated, one man drawn for service at the
February term of this Court, 1901, and another at the May term; of
the remaining three, two of them at the present term disqualified
themselves herein by previously formed opinions, and the fifth and
last, after qualification and acceptance on the
voir dire,
was peremptorily challenged by the commonwealth. The affiant says
that it will be impossible under these circumstances for him to
avoid being tried at this term of this Court except by a jury
composed entirely of his political opponents, and exclusively made
up of those who were the adherents and admirers of said Goebel, and
it will be impossible for him to obtain a fair and impartial trial
before any jury so constituted and formed."
"The affiant further states that the officers of this county who
went to Bourbon County to summon the men for jury service sent
directly to the sheriff of Bourbon County, who, together with his
deputies, were earnest and ardent adherents, supporters, and
friends of the said William Goebel, and opposed politically to this
affiant; that the officers of this county consulted and advised
with the said officers of Bourbon County as to the selection of the
men summoned, and that Wallace Mitchell, deputy sheriff of said
county, James Burke, another deputy sheriff of said county, Joseph
Williams, a constable of Bourbon County, and James A. Gibson, a
guard for county prisoners in Bourbon County, all of whom are the
political adherents of said Goebel and politically opposed to this
affiant, acted with them in making the selection and summoning said
men."
He says that the political complexion of Bourbon is almost
equally Democratic and Republican, there being a slight majority in
favor of the Democratic party; that, of the Republicans, about
three fifths are colored, but there are many conscientious,
fair-minded and respectable citizens of Bourbon County, qualified
for jury service, of the same political faith of this affiant, a
great many of whom could have been as readily and conveniently
summoned, and who would give to both sides herein a fair and
impartial trial, but that none of such persons were summoned with
the exception of two men, and, with these exceptions, ninety-one of
the ninety-three names appearing upon the list furnished this
affiant as a correct list of the men summoned from Bourbon County
are the names of the supporters and adherents of said Goebel, and
opposed politically to this affiant, and were summoned for jury
service herein by reason of such fact, as this affiant
believes.
Affiant further states that said Wallace Mitchell, the Deputy
Sheriff of Bourbon County, is now a candidate for sheriff of said
county, seeking an election at the hands of the supporters and
adherents of said William Goebel, and is their nominee for said
office. Said Mitchell, in the fall of 1900, acted in summoning for
jury service in this Court in the case of the
Commonwealth v.
Youtsey, indicted for the same offense as this affiant, and in
making the selection of men to serve as jurors therein, made the
statement that he would not summons a single Brown Democrat or
Republican for such service, and he did not summons any such.
