1. The Fourteenth Amendment of the Constitution of the United
States considered, and
held to be one of a series of
constitutional provisions having a common purpose, namely to secure
to a recently emancipated race, which had been held in slavery
through many generations, all the civil rights that the superior
race enjoy, and to give to it the protection of the general
government, in the enjoyment of such rights, whenever they should
be denied by the States. Whether the amendment had other, and if so
what, purposes not decided.
2. The amendment not only gave citizenship and the privileges of
citizenship to persons of color, but denied to any State the power
to withhold from them the equal protection of the laws, and
invested Congress with power, by appropriate legislation, to
enforce its provisions.
3. The amendment, although prohibitory in term, confers by
necessary implication a positive immunity, or right, most valuable
to persons of the colored race -- the right to exemption from
unfriendly legislation against them distinctively as colored --
exemption from discriminations, imposed by public authority, which
imply legal inferiority in civil society, lessen the security of
their rights, and are steps towards reducing them to the condition
of a subject race.
4. The statute of West Virginia which, in effect, singles out
and denies to colored citizens the right and privilege of
participating in the administration of the law as jurors because of
their color, though qualified in all other respects, is,
practically, a brand upon them, and a discrimination against them
which is forbidden by the amendment. It denies to such citizens the
equal protection of the laws, since the constitution of juries is a
very essential part of the protection which the trial by jury is
intended to secure. The very idea of a jury is that it is a body of
men composed of the peers or equals of the person whose rights it
is selected or summoned to determine; that is, of persons having
the same legal status in society as that which he holds.
5. Where, as here, the State statute secures to every white man
the right of trial by jury selected from, and without
discrimination against, his race, and at the same time permits or
requires such discrimination against the colored man because of his
race, the latter is not equally protected by law with the
former.
6. Sect. 41 of the Revised Statutes, which declares that,
"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, . . . 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,"
considered and
held not to be in conflict with the
Constitution of the United States.
Page 100 U. S. 304
The facts are stated in the opinion of the court.
MR. JUSTICE STRONG delivered the opinion of the court.
The plaintiff in error, a colored man, was indicted for murder
in the Circuit Court of Ohio County in West Virginia, on the 20th
of October, 1874, and, upon trial, was convicted and sentenced. The
record was then removed to the Supreme Court of the State, and
there the judgment of the Circuit Court was affirmed. The present
case is a writ of error to that court, and it is now, in substance,
averred that, at the trial in the State court, the defendant (now
plaintiff in error) was denied rights to which he was entitled
under the Constitution and laws of the United States.
In the Circuit Court of the State, before the trial of the
indictment was commenced, the defendant presented his petition,
verified by his oath, praying for a removal of the cause into the
Circuit Court of the United States, assigning, as ground for the
removal, that,
"by virtue of the laws of the State of West Virginia, no colored
man was eligible to be a member of the grand jury or to serve on a
petit jury in the State; that white men are so eligible, and that,
by reason of his being a colored man and having been a slave, he
had reason to believe, and did believe, he could not have the full
and equal benefit of all laws and proceedings in the State of West
Virginia for the security of his person as is enjoyed by white
citizens, and that he had less chance of enforcing in the courts of
the State his rights on the prosecution, as a citizen of the United
States, and that the probabilities of a denial of them to him as
such citizen on every trial which might take place on the
indictment in the courts of the State were much more enhanced than
if he was a white man."
This petition was denied by the State court, and the cause was
forced to trial.
Motions to quash the venire "because the law under which
Page 100 U. S. 305
it was issued was unconstitutional, null, and void," and
successive motions to challenge the array of the panel, for a new
trial, and in arrest of judgment were then made, all of which were
overruled and made by exceptions part of the record.
The law of the State to which reference was made in the petition
for removal and in the several motions was enacted on the 12th of
March, 1873 (Acts of 18778, p. 102), and it is as follows:
"All white male persons who are twenty-one year of age and who
are citizens of this State shall be liable to serve as jurors,
except as herein provided."
The persons excepted are State officials.
In this court, several errors have been assigned, and the
controlling question underlying them all are, first, whether, by
the Constitution and laws of the United States, every citizen of
the United States has a right to a trial of an indictment against
him by a jury selected and impaneled without discrimination against
his race or color, because of race or color, and, second, if he has
such a right and is denied its enjoyment by the State in which he
is indicted, may he cause the case to be removed into the Circuit
Court of the United States?
It is to be observed that the first of these questions is not
whether a colored man, when an indictment has been preferred
against him, has a right to a grand or a petit jury composed in
whole or in part of persons of his own race or color, but it is
whether, in the composition or selection of juror by whom he is to
be indicted or tried, all persons of his race or color may be
excluded by law solely because of their race or color, so that by
no possibility can any colored man sit upon the jury.
The questions are important, for they demand a construction of
the recent amendment of the Constitution. If the defendant has a
right to have a jury selected for the trial of his case without
discrimination against all persons of his race or color, because of
their race or color, the right, if not created, is protected by
those amendments and the legislation of Congress under them. The
Fourteenth Amendment ordains that
"all persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the State wherein they reside. No State shall make
or
Page 100 U. S. 306
enforce any laws which shall abridge the privilege 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."
This is one of a series of constitutional provisions having a
common purpose -- namely, securing to a race recently emancipated,
a race that, through many generations, had been held in slavery,
all the civil rights that the superior race enjoy. The true spirit
and meaning of the amendments, as we said in the
Slaughterhouse
Cases, 16 Wall. 36, cannot be understood without
keeping in view the history of the times when they were adopted and
the general objects they plainly sought to accomplish. At the time
when they were incorporated into the Constitution, it required
little knowledge of human nature to anticipate that those who had
long been regarded as an inferior and subject race would, when
suddenly raised to the rank of citizenship, be looked upon with
jealousy and positive dislike, and that State laws might be enacted
or enforced to perpetuate the distinctions that had before existed.
discriminations against them had been habitual. It was well known
that, in some States, laws making such discrimination then existed,
and others might well be expected. The colored race, as a race, was
abject and ignorant, and in that condition was unfitted to command
the respect of those who had superior intelligence. Their training
had left them mere children, and, as such, they needed the
protection which a wise government extend to those who are unable
to protect themselves. They especially needed protection against
unfriendly action in the States where they were resident. It was in
view of these considerations the Fourteenth Amendment was framed
and adopted. It was designed to assure to the colored race the
enjoyment of all the civil rights that, under the law, are enjoyed
by white persons, and to give to that race the protection of the
general government in that enjoyment whenever it should be denied
by the States. It not only gave citizenship and the privileges of
citizenship to persons of color, but it denied to any State the
power to withhold from them the equal protection of the laws, and
authorized Congress to enforce its provisions
Page 100 U. S. 307
by appropriate legislation. To quote the language used by us in
the
Slaughterhouse Cases,
"No one can fail to be impressed with the one pervading purpose
found in all the amendments, lying at the foundation of each, and
without which none of them would have been suggested -- we mean the
freedom of the slave race, the security and firm establishment of
that freedom, and the protection of the newly made freeman and
citizen from the oppressions of those who had formerly exercised
unlimited dominion over them."
So again:
"The existence of laws in the States where the newly emancipated
negroes resided which discriminated with gross injustice and
hardship against them as a class was the evil to be remedied, and,
by it [the Fourteenth Amendment], such laws were forbidden. If,
however, the States did not conform their laws to its requirements,
then, by the fifth section of the article of amendment, Congress
was authorized to enforce it by suitable legislation."
And it was added,
"We doubt very much whether any action of a State not directed
by way of discrimination against the negroes as a class will ever
be held to come within the purview of this provision."
If this is the spirit and meaning of the amendment, whether it
means more or not, it is to be construed liberally to carry out the
purposes of its framers. It ordains that no State shall make or
enforce any laws which shall abridge the privileges or immunities
of citizens of the United States (evidently referring to the newly
made citizens, who, being citizens of the United States, are
declared to be also citizens of the State in which they reside). It
ordains that no State shall deprive any person of life, liberty, or
property without due process of law, or deny to any person within
its jurisdiction the equal protection of the laws. What is this but
declaring that the law in the States shall be the same for the
black as for the white; that all persons, whether colored or white,
shall stand equal before the laws of the States, and, in regard to
the colored race, for whose protection the amendment was primarily
designed, that no discrimination shall be made against them bar law
because of their color? The words of the amendment, it is true, are
prohibitory, but they contain a necessary implication of a positive
immunity, or right, most valuable to the
Page 100 U. S. 308
colored race -- the right to exemption from unfriendly
legislation against them distinctively as colored -- exemption from
legal discriminations, implying inferiority in civil society,
lessening the security of their enjoyment of the rights which
others enjoy, and discriminations which are steps towards reducing
them to the condition of a subject race.
That the West Virginia statute respecting juries -- the statute
that controlled the selection of the grand and petit jury in the
case of the plaintiff in error -- is such a discrimination ought
not to be doubted. Nor would it be if the persons excluded by it
were white men. If, in those States where the colored people
constitute a majority of the entire population, a law should be
enacted excluding all white men from jury service, thus denying to
them the privilege of participating fully with the blacks in the
administration of justice, we apprehend no one would be heard to
claim that it would not be a denial to white men of the equal
protection of the laws. Nor, if a law should be passed excluding
all naturalized Celtic Irishmen, would there be any doubt of its
inconsistency with the spirit of the amendment. The very fact that
colored people are singled out and expressly denied by a statute
all right to participate in the administration of the law as jurors
because of their color, though they are citizens and may be in
other respects fully qualified, is practically a brand upon them
affixed by the law, an assertion of their inferiority, and a
stimulant to that race prejudice which is an impediment to securing
to individuals of the race that equal justice which the law aims to
secure to all others.
The right to a trial by jury is guaranteed to every citizen of
West Virginia by the Constitution of that State, and the
constitution of juries is a very essential part of the protection
such a mode of trial is intended to secure. The very idea of a jury
is a body of men composed of the peers or equals of the person
whose rights it is selected or summoned to determine -- that is, of
his neighbors, fellows, associates, persons having the same legal
status in society as that which he holds. Blackstone, in his
Commentaries, says,
"The right of trial by jury, or the country, is a trial by the
peers of every Englishman, and is the grand bulwark of his
liberties, and is secured to him by
Page 100 U. S. 309
the Great Charter."
It is also guarded by statutory enactments intended to make
impossible what Mr. Bentham called "packing juries." It is well
known that prejudices often exit against particular classes in the
community which sway the judgment of jurors and which therefore
operate in some cases to deny to persons of those classes the full
enjoyment of that protection which others enjoy. Prejudice in a
local community is held to be a reason for a change of venue. The
framers of the constitutional amendment must have known full well
the existence of such prejudice and its likelihood to continue
against the manumitted slaves and their race, and that knowledge
was doubtless a motive that led to the amendment. By their
manumission and citizenship, the colored race became entitled to
the equal protection of the laws of the States in which they
resided, and the apprehension that, through prejudice, they might
be denied that equal protection, that is, that there might be
discrimination against them, was the inducement to bestow upon the
national government the power to enforce the provision that no
State shall deny to them the equal protection of the laws. Without
the apprehended existence of prejudice, that portion of the
amendment would have been unnecessary, and it might have been left
to the States to extend equality of protection.
In view of these considerations, it is hard to see why the
statute of West Virginia should not be regarded as discriminating
against a colored man when he is put upon trial for an alleged
criminal offence against the State. It is not easy to comprehend
how it can be said that, while every white man is entitled to a
trial by a jury selected from persons of his own race or color, or,
rather, selected without discrimination against his color, and a
negro is not, the latter is equally protected by the law with the
former. Is not protection of life and liberty against race or color
prejudice a right, a legal right, under the constitutional
amendment? And how can it be maintained that compelling a colored
man to submit to a trial for his life by a jury drawn from a panel
from which the State has expressly excluded every man of his race,
because of color alone, however well qualified in other respects,
is not a denial to him of equal legal protection?
Page 100 U. S. 310
We do not say that, within the limits from which it is not
excluded by the amendment, a State may not prescribe the
qualifications of its jurors, and, in so doing, make
discriminations. It may confine the selection to males, to
freeholders, to citizens, to persons within certain ages, or to
persons having educational qualifications. We do not believe the
Fourteenth Amendment was ever intended to prohibit this. Looking at
its history, it is clear it had no such purpose. Its aim was
against discrimination because of race or color. As we have said
more than once, its design was to protect an emancipated race, and
to strike down all possible legal discriminations against those who
belong to it. To quote further from 16 Wall.,
supra:
"In giving construction to any of these article [amendments], it
is necessary to keep the main purpose steadily in view. . . . It is
so clearly a provision for that race and that emergency that a
strong case would be necessary for its application to any
other."
We are not now called upon to affirm or deny that it had other
purposes.
The Fourteenth Amendment makes no attempt to enumerate the
rights it designed to protect. It speaks in general terms, and
those are as comprehensive as possible. Its language is
prohibitory, but every prohibition implies the existence of rights
and immunities, prominent among which is an immunity from
inequality of legal protection either for life, liberty, or
property. Any State action that denies this immunity to a colored
man is in conflict with the Constitution.
Concluding, therefore, that the statute of West Virginia,
discriminating in the selection of jurors, as it does, against
negroes because of their color, amounts to a denial of the equal
protection of the laws to a colored man when he is put upon trial
for an alleged offence against the State, it remains only to be
considered whether the power of Congress to enforce the provisions
of the Fourteenth Amendment by appropriate legislation is
sufficient to justify the enactment of sect. 641 of the Revised
Statutes.
A right or an immunity, whether created by the Constitution or
only guaranteed by it, even without any express delegation of
power, may be protected by Congress.
Prigg
v. The Commonwealth of Pennsylvania, 16 Pet. 539.
So, in
Page 100 U. S. 311
United States v. Reese, 92 U. S.
214, it was aid by the Chief Justice of this court:
"Rights and immunities created by or dependent upon the
Constitution of the United States can be protected by Congress. The
form and manner of the protection may be such as Congress, in the
legitimate exercise of its legislative discretion, shall provide.
These may be varied to meet the necessities of the particular right
to be protected."
But 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. Sect. 641 is such a provision. It enacts
that
"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 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 case, stating
the facts, and verified by oath, be removed before trial into the
next Circuit Court of the United States to be held in the district
where it is pending."
This act plainly has reference to sects. 1977 and 1978 of the
statutes which partially enumerate the rights and immunities
intended to be guaranteed by the Constitution, the first of which
declares that
"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,
Page 100 U. S. 312
pains, penalties, taxes, licenses, and exactions of every kind,
and to no other."
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. Sect. 641 was
an advanced step, fully warranted, we think, by the fifth section
of the Fourteenth Amendment.
We have heretofore considered and affirmed the constitutional
power of Congress to authorize the removal from State courts into
the circuit courts of the United States, before trial, of criminal
prosecutions for alleged offences against the laws of the State
when the defence presents a Federal question or when a right under
the Federal Constitution or laws is involved.
Tennessee v.
Davis, supra, p.
100 U. S. 267.
It is unnecessary to repeat what we there 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 sect. 641 is very plain if, by
the constitutional amendment and sect. 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.
The judgment of the Supreme Court of West Virginia will be
reversed, and the case remitted with instructions to reverse the
judgment of the Circuit Court of Ohio county, and it is
So ordered.
MR. JUSTICE FIELD.
I dissent from the judgment of the court in this case on the
grounds stated in my opinion in
Ex parte Virginia
(
infra, p.
100 U. S.
349), aud MR. JUSTICE CLIFFORD concurs with me.