1. The adoption of the Fifteenth Amendment rendered inoperative
a provision in the then existing Constitution of a State whereby
the right of suffrage was limited to the white race.
2. Therefore, a statute confining the selection of jurors to
persons possessing the qualifications of electors is enlarged in
its operation so as to embrace all those who, by the Constitution
of the State, as modified by that amendment, are entitled to
vote.
3. The presumption should be indulged, in the first instance,
that the State recognizes as binding on all her citizens and every
department of her government an amendment to the Constitution of
the United States, from the time of its adoption, and her duty to
enforce it, within her limits, without reference to any
inconsistent provisions in her own Constitution or statutes.
4. In this case, that presumption is strengthened, and becomes
conclusive, not only by the direct adjudication of the highest
court of the State of Delaware that her Constitution had been
modified by force of the amendments to the Constitution of the
United States, but by the entire absence of any statutory
enactment, since their adoption, indicating that she does not
recognize, in the fullest legal sense, their effect upon her
Constitution and laws. Where, therefore, a negro, indicted in one
of her courts for a felony, presented a petition alleging that
persons of African descent were, by reason of their race and color,
excluded by those laws from service on juries, and praying that the
prosecution against him be removed to the Circuit Court of the
United States --
Held, that the prayer of the petition was
properly denied.
5. Had the State, since the adoption of the Fourteenth
Amendment, enacted any statute in conflict with its provisions, or
had her judicial tribunals repudiated it as a part of the supreme
law of the land, or declared that the acts passed to enforce it
were inoperative and void, there would have been just ground to
hold that the case was one embraced by sect. 641 of the Revised
Statutes, and, therefore, removable into the Circuit Court.
6. The exclusion, because of their race and color, of citizens
of African descent from the grand jury that found, and from the
petit jury that was summoned to try, the indictment, if made by the
jury commissioners, without authority derived from the Constitution
and laws of the State, was a violation of the prisoner's rights
under the Constitution and laws of the United States which the
trial court was bound to redress, and the remedy for any failure in
that respect is ultimately in this court upon writ of error.
7. Upon the showing made by the prisoner, the motions to quash
the indictment and the panels of jurors should have been
sustained.
8. The court reaffirms the doctrines announced in
Strauder v. West
Virginia (100 U.S. 303),
Virginia v.
Rives (
id., 315), and
Ex parte
Virginia (
id., 339).
Page 103 U. S. 371
The plaintiff in error, a citizen of African descent, was, on
May 11, 1880, indicted in the Court of General Sessions of the
Peace and Jail Delivery of New Castle County, Delaware, for the
crime of rape -- an offence punishable, under the laws of that
State, with death. The indictment was, by a writ of certiorari,
removed for trial into the Court of Oyer and Terminer for the same
county, the highest judicial tribunal of Delaware in which the
decision of such a case could be had. In the latter court, the
accused, by counsel specially assigned for his defence, filed the
following petition:
"
I
n the Court of Oyer and Terminer of the State of Delaware,"
"
sitting in and for New Castle County, May Term, A.D.
1880"
"THE STATE OF DELAWARE"
"v."
"WILLIAM NEAL"
"
I
ndictment for Rape, certified from the Court of"
"
General Sessions for said County."
"To the Honorable Court of Oyer and Terminer of the State of
Delaware, sitting in and for New Castle County."
"The petition of William Neal respectfully represents that your
petitioner is the defendant in the above-entitled indictment for
the crime of rape alleged to have been committed on one Margaret E.
Gosser; that said indictment was found in the Court of General
Sessions of the Peace and Jail Delivery for said county, by the
grand inquest of said county, on the eleventh day of May instant,
and has since been duly certified into the Court of Oyer and
Terminer for said county."
"That your petitioner is a citizen of the United States and of
the State of Delaware, of African race and descent from black in
color; that, by the statutes of the State, all persons qualified to
vote at the general election are liable to serve as jurors, except
public officers of the said State or of the United States,
counselors and attorneys at law, ordained ministers of the gospel,
officers of colleges and teachers in public schools, practicing
physicians, surgeons regularly licensed, cashiers of incorporated
banks, and all persons who are more than seventy years of age."
"That, by the Constitution of the State, the right of an elector
is enjoyed only by male citizens above the age of twenty-one years,
who are also free white persons, and is not enjoyed by virtue of
the
Page 103 U. S. 372
provisions of that Constitution, by persons otherwise qualified,
who are not white persons."
"That the Levy Court of New Castle County are required by the
law of the State, at its annual session in March, to select from
the list of taxable citizens of each county the names of one
hundred sober and judicious persons to serve, if summoned, as grand
jurors at the several courts to be holden in that year, and also
the names of one hundred and fifty other sober and judicious
persons to serve, if summoned, as petit jurors in said courts; that
said Levy Court for said county, at their annual session in March
last, in selecting persons to serve as grand jurors and petit
jurors as aforesaid, if summoned, for the courts aforesaid,
including both the Court of General Sessions and the Court of Oyer
and Terminer, as aforesaid, selected no persons of color, or
African race, to serve as such jurors as aforesaid, but, on the
contrary thereof, did exclude all colored persons and persons of
African race, because of their race and color, from those selected
as aforesaid to serve as and be drawn for jurors as aforesaid; that
the prothonotary and clerk of the peace for said county drew from
the lists of those so selected as aforesaid to serve as grand
jurors the grand jurors by whom the said indictment against your
petitioner was found, and also drew from the list of those selected
as aforesaid to serve as petit jurors the petit jurors by whom your
petitioner is to be tried for his life under said indictment, and
that, from both the grand jury aforesaid and from the said petit
jury, all persons otherwise qualified by law to serve as jurors as
aforesaid who were persons of color and of African race were
excluded as aforesaid, because of their race and color, from
serving thereon as jurors, and that said grand and petit juries
were drawn from and composed of exclusively white persons, and
that, in fact, persons of color and of African race, though
otherwise qualified, have always in said county and State been
excluded from serving on juries because of their race and color;
that, by reason of the exclusion as aforesaid from said grand and
petit juries in said courts of all persons of color and African
race, because of their race and color, though otherwise qualified
to serve as jurors, your petitioner, in the finding of said
indictment, has been, and in the trial thereof will be, denied the
equal protection of the laws, and will not have the full and equal
benefit of all laws and proceedings in the State of Delaware for
the security of his person in the trial of said indictment as is
enjoyed by white persons."
"That, by reason of the exclusion as aforesaid of all persons of
color and African race from said grand and petit juries in said
courts,
Page 103 U. S. 373
and, by reason of the Constitution and laws of Delaware in
respect to the qualifications of jurors excluding from said grand
and petit jury all colored persons of African race, your petitioner
is denied, and cannot enforce in the judicial tribunals of the
State, a right secured to him by the law of the United States
providing for the equal civil rights of citizens of the United
States, to-wit, the rights under the fourteenth article of the
amendments to the Constitution of the United States to the equal
protection of the laws; and to the right under said amendment and
the acts of Congress in the enforcement thereof to a trial under
said indictment for his life by a jury from which the State of
Delaware has not excluded all persons of his own race and color
because of their race and color."
"Your petitioner therefore prays this honorable court that the
said indictment and its prosecution be removed into the Circuit
Court of the United States for the District of Delaware for trial
at the next ensuing term of said Circuit Court."
"And your petitioner will ever pray."
"WILLIAM [his mark] NEAL"
"Sworn to and subscribed by the said William Neal, the
thirteenth day of May, A.D. 1880, before me."
"JOHN P. SPRINGER,
C.P."
"STATE OF DELAWARE,"
"New Castle County, ss:"
"On this fourteenth day of May, A.D. 1880, before me, John P.
Springer, clerk of the peace and of the Court of Oyer and Terminer
and the Court of General Sessions of the Peace and Jail Delivery
for New Castle County, personally appeared William Neal, who, being
by me first solemnly sworn according to law, says that the facts
set forth in the foregoing petition (signed by him by making his
mark thereunto in my presence) are true to the best of his
knowledge and belief."
"WILLIAM [his mark] NEAL."
"Sworn to and subscribed before me, as witness my hand and the
seal of the Court of Oyer and Terminer the day and year
aforesaid."
"JOHN P. SPRINGER,
C.P."
The court being of the opinion that the defendant was not
entitled to have his case removed to the Circuit Court of the
Page 103 U. S. 374
United States, because there is no law of the State of Delaware
forbidding the Levy Court to select persons of African race and of
color as jurors, on account of their race and color, if in the
judgment of the Levy Court such persons are otherwise qualified to
serve as jurors, and because it did not appear that the grand and
the petit jury, though composed solely of white men, were so made
up because the names of colored men were not selected for jury
service on the ground of their race and color, and because the
defendant had not shown that he was denied any right secured to him
as a citizen of the United States, through the selection of those
panels by the Levy Court -- denied the prayer of the petitioner,
and refused to certify the indictment and prosecution into the
Circuit Court, but compelled him to proceed to trial in the Court
of Oyer and Terminer. To which ruling of the court, the defendant
excepted.
Thereupon, the defendant, before he was arraigned, moved to
quash the indictment, and the list and panel of grand jurors by
whom it was found, upon the following grounds: that the Levy Court,
in selecting persons to serve as grand jurors and petit jurors (if
summoned) for the Court of General Sessions and the Court of Oyer
and Terminer, selected no persons of color or African race to serve
as such jurors, but, on the contrary, excluded all colored persons
and persons of African race, because of their race and color, from
those selected to serve as and be drawn for jurors; that the
prothonotary and clerk of the peace for the county drew from the
lists of those so selected to serve as grand jurors the grand
jurors by whom the indictment against the defendant was found, and
also drew from the list of those selected to serve as petit jurors
the petit jurors by whom the defendant was to be tried for his life
under the indictment; and that from both the grand and the petit
jury all persons qualified by law to serve as jurors who were
persons of color and of African race were excluded, because of
their race and color, from serving thereon as jurors, and that the
grand and petit jurors were drawn from and were composed
exclusively of white persons, and that, in fact, persons of color
and of African race, though otherwise qualified, have always in the
county and State been excluded from serving upon juries because of
their race and color; and that by reason of such exclusion
Page 103 U. S. 375
from the grand and petit juries of all persons of color and
African race; because of their race and color, though otherwise
qualified to serve as jurors, the defendant in the finding of the
indictment had been, and in the trial thereof would be, denied the
equal protection of the laws, and would not have the full and equal
benefit of all laws and proceedings in the State of Delaware for
the security of his person as is enjoyed by white persons.
It being then and there agreed between the Attorney General on
behalf of the State, and the defendant, through his counsel, with
the consent of the court, that the statement and allegations of the
defendant in his petition for the removal of the indictment, and
its prosecution for trial into the Circuit Court and their
verification by his oath, should be taken and treated and given the
same force and effect, in the consideration and decision of the
motions to quash the indictment, and the lists and panels of grand
and petit jurors, as if the statements and allegations were made
and verified by him in a separate and distinct affidavit; the court
thereupon overruled and refused to grant the motion of the
defendant to quash the indictment, and the lists and panels of
grand jurors and petit jurors, because, although in fact no persons
of African race and of color were upon either panel, no evidence
had been produced or offered by him to prove his statements and
allegations in his petition and affidavit thereto, upon which the
motion to quash was founded, that the exclusion by the Levy Court
from the grand and petit juries of all persons of African race and
color was because of their race and color, and that the court could
not accept such fact of exclusion because of race and color to be
established by the circumstance that no persons of African race or
of color were, in fact, on the lists and panels of grand jurors and
petit jurors, or by his mere unaided affidavit, but the same should
have been proven affirmatively on his part by competent testimony
outside of his own affidavit, before the motion could be granted.
To which ruling, the defendant excepted.
Thereupon, before the defendant was arraigned under the
indictment, and before he had pleaded thereto, and after the motion
of the defendant to quash the indictment and the lists
Page 103 U. S. 376
and panels of grand jurors and petit jurors, because of the
alleged exclusion by the Levy Court of New Castle County from the
lists and panels of grand jurors and petit jurors of all persons of
African race and color, because of their race and color, had been
overruled by the court, because the defendant had offered no
evidence or witnesses to prove the statements and allegations of
his own affidavit that the Levy Court had excluded from the lists
and panels of grand jurors and petit jurors all persons of African
race and of color, because of their race and color, to-wit, on the
twenty-fourth day of May, 1880, he further moved the court that he
be permitted to produce as witnesses in support of his motion to
quash the indictment, and the lists and panels of grand jurors and
petit jurors, and in support of the allegations and statements of
his petition and affidavit, on which the motion was founded, the
commissioners and clerk and bailiff of the Levy Court, and that the
court should issue by its clerk subpoenas for the persons as
witnesses to testify as aforesaid.
The court overruled the motion, and refused to cause subpoenas
to be issued for the witnesses and to permit the defendant to
produce them, or to go into the proof of the statements and
allegations of his petition and affidavit on which the motion to
quash was founded on the ground that full time to produce the
witnesses had existed before the motions were heard; that
application for leave to summon witnesses to support a motion which
had been argued and refused because of want of proof when
sufficient time had existed for its production was without
precedent in the Court of Oyer and Terminer of that State, and
therefore the motion must be treated as coming too late to be
granted; to which ruling of the court the defendant excepted.
The prisoner was then arraigned, and pleaded not guilty. The
jury tried the issue, and returned a verdict of guilty. Whereupon
he was by the court, May 27, 1880, sentenced to suffer death by
hanging. He thereupon sued out this writ of error.
Sect. 1 of art. 4 of the Constitution of Delaware declares that
--
"All elections for governor, senators, representatives,
sheriffs, and coroners shall be held on the Tuesday next after the
first Monday
Page 103 U. S. 377
in the month of November of the year in which they are to be
held, and be by ballot."
"And in such elections every free white male citizen of the age
of twenty-two years or upwards, having resided in the State one
year next before the election, and the last month thereof in the
county where he offers to vote, and having within two years next
before the election paid a county tax, which shall have been
assessed at least six months before the election, shall enjoy the
right of an elector; and every free white male citizen of the age
of twenty-one years and under the age of twenty-two years, having
resided as aforesaid, shall be entitled to vote without payment of
any tax:
Provided, that no person in the military, naval,
or marine service of the United States shall be considered as
acquiring a residence in this State by being stationed in any
garrison, barrack, or military or naval place or station within
this State; and no idiot, or insane person, pauper, or person
convicted of a crime deemed by law felony, shall enjoy the right of
an elector; and that the legislature may impose the forfeiture of
the right of suffrage as a punishment for crime."
Chapter 109 of the Revised Statutes of 1853 of the State
contains the jury law of Feb. 28, 1849. It is as follows:
"SECT. 1. All persons qualified to vote at the general election
shall be liable to serve as jurors, except public officers of this
State, or of the United States, counselors and attorneys at law,
ordained ministers of the gospel, officers of colleges, and
teachers of public schools, practicing physicians and surgeons
regularly licensed, cashiers of incorporated banks, and all persons
who are more than seventy years of age."
"SECT. 2. The Levy Court for each county shall, at its annual
session in March, select from the list of taxable citizens of such
county, in such proportion for each hundred as may be deemed
proper, the names of one hundred sober and judicious persons, to
serve (if summoned) as grand jurors at the several courts to be
holden in that year; and also the names of one hundred and fifty
other sober and judicious persons, to serve (if summoned) as petit
jurors, at the several courts, other than the courts of quarter
sessions, to be holden in that year; and also the names of one
hundred and twenty other sober and judicious persons, to serve (if
summoned) as jurors at the Court of Quarter Sessions to be holden
in that year. There shall be provided for each hundred, three
boxes, one of which shall be marked or labeled 'grand jurors,'
another 'petit jurors,'
Page 103 U. S. 378
and the other 'quarter sessions jurors,' and each with the names
of the hundred. The name of the persons selected as aforesaid shall
be written each on a separate ballot, all the ballots being of the
same color, size, and shape, and the ballots shall be folded so as
to conceal the names written upon them. Those containing the names
of persons selected for grand jurors shall be deposited in the
boxes marked 'grand jurors,' the names selected from each hundred
being placed in the box of that hundred; in like manner, the names
of persons selected for petit jurors shall be deposited in the
boxes marked 'petit jurors,' the names selected from each hundred
being placed in the box of that hundred; in like manner, the names
of persons selected for 'quarter session jurors' shall be deposited
in the boxes marked 'quarter sessions jurors,' the names selected
from each hundred being placed in the box of that hundred; after
which the boxes shall be locked and delivered to the prothonotary,
and the keys shall be kept by the clerk of the peace. The Levy
Court shall preserve lists of the persons selected for jurors, and
shall deliver to the said prothonotary, with the boxes aforesaid,
copies of said lists signed by the chairman of said court, and
countersigned by the clerk thereof, showing the number selected
from each hundred."
"
* * * *"
"SECT. 4. The prothonotary and clerk of the peace shall, within
ten days after the delivery of the said boxes to the prothonotary
as above provided, meet in the prothonotary's office, and, first
shaking the boxes so as to intermix the ballots, shall, in the
presence of such persons as may choose to be present, draw from the
box marked 'grand jurors,' in the same proportion for each hundred
in which they were selected by the Levy Court, the names of
twenty-four persons to be summoned as grand jurors for that
year."
"SECT. 5. The prothonotary and clerk of the peace shall, at
least twenty days before the commencement of each term of the
Superior Court and Court of General Sessions for the county, in
like manner draw from the boxes marked 'petit jurors,' in the same
proportions for each hundred in which they were selected by the
Levy Court, the names of thirty persons to serve as petit jurors at
the ensuing term of said courts."
"
* * * *"
"SECT. 8. The officers drawing for grand and petit jurors as
aforesaid shall, immediately thereafter, deliver to the sheriff of
the county a correct list of names of the persons so drawn, with
the date of the drawing indorsed thereon. "
Page 103 U. S. 379
"SECT. 9. The said boxes shall, immediately after any drawing
for jurors, be locked and kept by the prothonotary, the keys being
delivered into the custody of the clerk of the peace."
"SECT. 10. The sheriff of the county, upon receiving a list of
persons drawn for grand jurors as aforesaid, shall, at least ten
days before the next ensuing term of the Court of General Sessions
for his county, summon, in writing, each of the said persons to
serve as the standing grand jurors for that year at the said court.
He shall, in like manner, upon receiving a list of persons drawn
for petit jurors as aforesaid, at least ten days before the next
ensuing term of the Superior Court and Court of General Sessions,
summon, in writing, each of the said persons to serve as petit
jurors at the then next term of the said courts respectively."
"The sheriff shall, within one hour after opening of said courts
respectively, on the first day of every term, return to each of
said courts a separate and distinct panel of persons summoned to
attend thereat as grand or petit jurors, showing the Christian and
surnames, and places of abode of such jurors."
"SECT. 11. The grand jurors for the year drawn as aforesaid
shall be summoned and returned to attend, as grand jurors, at any
Court of Oyer and Terminer, when the precept for holding such court
directs a grand jury to be summoned."
"For any Court of Oyer and Terminer, forty-eight petit jurors
shall, upon notice from the sheriff to the prothonotary and clerk
of the peace that such court is to be held, be drawn, summoned and
returned according to the foregoing provisions for drawing,
summoning and returning petit jurors for the Superior Court and
Court of General Sessions:
Provided, that if the day
assigned for holding a Court of Oyer and Terminer shall be at a
time when a petit jury is in attendance upon the Superior Court or
Court of General Sessions, such jury shall constitute a part of the
panel of the petit jurors to be summoned to attend the said Court
of Oyer and Terminer, and only the residue of the said number of
forty-eight jurors shall be drawn according to the foregoing
provisions. "
Page 103 U. S. 385
MR. JUSTICE HARLAN, after stating the case, delivered the
opinion of the court.
The assignments of error are numerous, but they are all embraced
by the general proposition that the court erred as well in
proceeding with the case after the petition for removal was filed,
as in denying the motions to quash the indictment, and the panels
of jurors.
The first question to which our attention will be directed
relates to the assertion, by the accused, of the right of removal
under sect. 641 of the Revised Statutes. That section 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 the 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. Upon the filing of such petition all further
proceedings in the State court shall cease,"
&c.
In
Strauder v. West Virginia, 100 U.
S. 303,
Virginia v. Rives, 100 U.
S. 313, and
Ex parte Virginia, 100 U.
S. 339, that section was the subject of careful
examination, in connection with sect. 1977, which declares that
"[a]ll 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 persons,
and shall be subject to like pains,
Page 103 U. S. 386
penalties, taxes, licenses, and exactions of every kind and no
other."
We also considered the validity and scope of the act of March 1,
1875, c. 114, which, among other things, declares that
"[n]o citizen, possessing all other qualifications which are or
may be prescribed by law, shall be disqualified from service as
grand or petit jurors in any court of the United States, or of any
State, on account of race, color, or previous condition of
servitude."
18 Stat., pt. 3, p. 335.
In those cases, it was ruled that these statutory enactments
were constitutional exertions of the power to pass appropriate
legislation for the enforcement of the provisions of the Fourteenth
Amendment, which was designed, primarily, as we held, to secure to
the colored race, thereby invested with the rights, privileges, and
responsibilities of citizenship, the enjoyment of all the civil
rights that, under the law, are enjoyed by white persons; that,
while a State, consistently with the purposes for which that
amendment was adopted, may confine the selection of jurors to
males, to freeholders, to citizens, to persons within certain ages,
or to persons having educational qualifications, a denial to
citizens of the African race, because of their color, of the right
or privilege accorded to white citizens, of participating, as
jurors, in the administration of justice, is a discrimination
against the former inconsistent with the amendment, and within the
power of Congress, by appropriate legislation, to prevent; that to
compel a colored man to submit to a trial before a jury drawn from
a panel from which was excluded, because of their color, every man
of his race, however well qualified by education and character to
discharge the functions of jurors, was a denial of the equal
protection of the laws; and that such exclusion of the black race
from juries because of their color was not less forbidden by law
than would be the exclusion from juries, in the States where the
blacks have the majority, of the white race, because of their
color.
But it was also ruled, in the cases cited, that the
constitutional amendment was broader than the provisions of sect.
641 of the Revised Statutes; that, since that section only
authorized a removal before trial, it did not embrace a case in
which a right is denied by judicial action during the trial, or in
the sentence, or in the mode of executing the sentence; that
for
Page 103 U. S. 387
denials, arising from judicial action, after the trial
commenced, the remedy lay in the revisory power of the higher
courts of the State, and, ultimately, in the power of review which
this court may exercise over their judgments whenever rights,
privileges, or immunities, secured by the Constitution or laws of
the United States, are withheld or violated; and that the denial or
inability to enforce in the judicial tribunals of the States,
rights secured by any law providing for the equal civil rights of
citizens of the United States, to which sect. 641 refers, is,
primarily, if not exclusively, a denial of such rights, or an
inability to enforce them, resulting from the Constitution or laws
of the State, rather than a denial first made manifest at the trial
of the case. We held that Congress had not authorized a removal
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.
The essential question, therefore, is whether, at the time the
petition for removal was filed, citizens of the African race,
otherwise qualified, were, by reason of the Constitution and laws
of Delaware, excluded from service on juries because of their
color. The court below, all the judges concurring, held that no
such exclusion was required or authorized by the Constitution or
laws of the State, and consequently that the case was not embraced
by the removal statute as construed by this court.
The correctness of this position will now be considered.
The Constitution of Delaware, adopted in 1831 (the words of
which upon the subject of suffrage had not been changed when the
petition for removal was filed, nor since), restricts the right of
suffrage at general elections to free white male citizens, of the
age of twenty-two years and upwards, who had resided in the State
one year next before the election, and the last month thereof in
the county where he offers to vote, and who, within two years next
before the election, had paid a county tax, which shall have been
assessed at least six months before such election -- the
prerequisite of a payment of tax being dispensed with in the case
of free white male citizens between twenty-one and twenty-two years
of age, having the
Page 103 U. S. 388
prescribed residence in the State and county. The only persons
excluded by that Constitution from suffrage are those in the
military, naval, or marine service of the United States stationed
in Delaware, idiots, insane persons, paupers, and those convicted
of felonies.
The statute of Delaware, adopted in 1848 and in force at the
trial of this case, provides for an annual selection by the Levy
Court of the county of persons to serve as grand and petit jurors,
and, from those so selected, the prothonotary and clerk of the
peace are required to draw the names of such as shall serve for
that year, if summoned. It further provides that all qualified to
vote at the general election, being "sober and judicious persons,"
shall be liable to serve as jurors, except public officers of the
State or of the United States, counselors and attorneys at law,
ordained ministers of the gospel, officers of colleges, teachers of
public schools, practicing physicians and surgeons regularly
licensed, cashiers of incorporated banks, and all persons over
seventy years of age.
It is thus seen that the statute, by its reference to the
constitutional qualifications of voters, apparently restricts the
selection of jurors to white male citizens being voters and sober
and judicious persons. And although it only declares that such
citizens shall be liable to serve as jurors, the settled
construction of the State court, prior to the adoption of the
Fifteenth Amendment, was that no citizen of the African race was
competent under the law to serve on a jury.
Now the argument on behalf of the accused is that, since the
statute adopted the standard of voters as the standard for jurors,
and since Delaware has never, by any separate or official action of
its own, changed the language of its Constitution in reference to
the class who may exercise the elective franchise, the State is to
be regarded, in the sense of the amendment and of the laws enacted
for its enforcement, as denying to the colored race within its
limits, to this day, the right, upon equal terms with the white
race, to participate as jurors in the administration of justice --
and this notwithstanding the adoption of the Fifteenth Amendment
and its admitted legal effect upon the constitutions and laws of
all the States of the Union.
But to this argument, when urged in the court below, the
Page 103 U. S. 389
State court replied, as does the Attorney General of the State
here, that although the State had never, by a convention or popular
vote, formally abrogated the provision in its State Constitution
restricting suffrage to white citizens, that result had necessarily
followed as matter of law from the incorporation of the Fourteenth
and Fifteenth Amendments into the fundamental law of the nation;
that, since the adoption of the latter amendment, neither the
legislative, executive, nor judicial authorities of the State had
in any mode recognized as an existing part of its Constitution that
provision which, in words, discriminates against citizens of the
African race in the matter of suffrage; and consequently that the
statute prescribing the qualification of jurors by reference to the
qualifications for voters should be construed as referring to the
State Constitution as modified or affected by the Fifteenth
Amendment.
The question thus presented is of the highest moment to that
race, the security of whose rights of life, liberty, and property,
and to the equal protection of the laws, was the primary object of
the recent amendments to the national Constitution. Its solution is
confessedly attended by many difficulties of a serious nature,
which might have been avoided by more explicit language in the
statutes passed for the enforcement of the amendments. Much has
been left by the legislative department to mere judicial
construction. But, upon the fullest consideration we have been able
to give the subject, our conclusion is that the alleged
discrimination in the State of Delaware against citizens of the
African race in the matter of service on juries does not result
from her Constitution and laws.
Beyond question, the adoption of the Fifteenth Amendment had the
effect in law to remove from the State Constitution or render
inoperative that provision which restricts the right of suffrage to
the white race. Thenceforward, the statute which prescribed the
qualifications of jurors was itself enlarged in its operation so as
to embrace all who by the State Constitution, as modified by the
supreme law of the land, were qualified to vote at a general
election. The presumption should be indulged in the first instance
that the State recognizes, as is its plain duty, an amendment of
the Federal Constitution, from the time of its adoption, as binding
on all of its citizens and
Page 103 U. S. 390
every department of its government, and to be enforced, within
its limits, without reference to any inconsistent provisions in its
own Constitution or statutes. In this case, that presumption is
strengthened, and indeed becomes conclusive, not only by the direct
adjudication of the State court as to what is the fundamental law
of Delaware, but by the entire absence of any statutory enactments
or any adjudication, since the adoption of the Fifteenth Amendment,
indicating that the State, by its constituted authorities, does not
recognize in the fullest legal sense the binding force of that
amendment and its effect in modifying the State Constitution upon
the subject of suffrage.
This abundantly appears from the separate opinions in this case
of the judges composing the Court of Oyer and Terminer. Comegys,
C.J., alluding to the Fifteenth Amendment, and the Act of March 1,
1875, said:
"Returning to the point that our laws forbid the selection of
colored persons as jurors. We answer this by saying that we have no
such laws. . . . The Fourteenth Amendment, therefore, and the act
of 1875 passed by Congress as appropriate legislation for its
enforcement, or either, are superior to our State Constitution, and
it had to give way to them, and it did so give way, and was
repealed, so far as the word 'white' is mentioned therein as a
qualification for a voter at a general election, as soon as the
amendment was proclaimed to be adopted, and has been so understood
and treated by all persons in this State from that time forth. Ever
since the last civil rights bill was passed by Congress, negroes
have been admitted as witnesses in all cases, civil and criminal,
tried in our courts, whereas, before, they could give no evidence
in any such cases against a white person except in case of crime,
and to prevent a failure of justice when no white person was
present at the time of the transaction competent to give testimony.
There is, then, an excision or erasure of the word 'white' in the
qualification of voters in this State, and the Constitution is now
to be construed as if such word had never been there. We have,
then, no law of this State forbidding the Levy Court to select
negroes as jurors, because they are negroes, if, in their judgment,
they are otherwise qualified."
Wales, J., said:
"We know from actual and personal knowledge of the history
of
Page 103 U. S. 391
the times that, since the adoption of the Fifteenth Amendment to
the Federal Constitution, the provision in the Constitution of
Delaware limiting the right to vote to free white male citizens has
been virtually and practically repealed and annulled, and that
persons of color, otherwise qualified, have exercised and continue
to exercise the elective franchise in all parts of this State with
the same freedom as the whites. It is not necessary to prove this
fact. . . . But there is really no difficulty in reaching the
conclusion that, under the law regulating the selection of jurors,
the colored citizen is not excluded. That law was intended by its
authors to be prospective in its operation and effect, and to
include all who would become voters after its passage, as well as
the class of persons who were then entitled to vote. It was not a
temporary statute, intended only to provide for the then existing
state of things, but to reach forward and make one unvarying
standard for the qualification of a juror, to-wit, that he should
be qualified to vote at the general election. This was not the sole
standard, but it is the only one pertinent to the discussion of the
motion to remove. Whoever, thereafter, might become qualified
voters in the State, whether by virtue of amendment to its
Constitution, or by virtue of 'the supreme law of the land,' that
overrides and supplants State constitutions and State laws,
eo
instanti became qualified for selection and service as jurors.
. . . The right secured to the colored man under the Fourteenth
Amendment and the civil rights laws is that he shall not be
discriminated against solely on account of his race or color, and
it follows that no State law can, for that cause alone, exclude him
from the jury box, nor can a State officer be permitted, in the
performance of his official duties, to purposely keep the colored
man off the jury lists."
Houston, J., concurred in the opinion of the other judges, and
expressed his surprise that the petition for removal contained the
statement that the colored man is not a voter in Delaware by its
Constitution and laws. That, he said,
"is not true, and ought not to be asserted, because there is not
a lawyer of any political party that has ever doubted, since the
adoption of the Fourteenth Amendment to the Constitution of the
United States, that the word 'white,' in our Constitution, was
entirely stricken out. That goes to the root of the whole
matter,
Page 103 U. S. 392
and there is no discrimination in the Constitution or laws of
our State against colored men as jurors."
There is another consideration upon this branch of the case
which is entitled to weight. In some of the States, particularly
those in which slavery formerly existed, no alteration of the
Constitution was possible except in the particular mode prescribed
unless, indeed, the people assumed to disregard the express
limitations which their own fundamental law imposed upon the power
of amendment. If the Constitution is obeyed, no alteration of its
provisions could, in some of the States, be effected short of
several years. And if the position taken by counsel be correct, so
long as the mere language of the Constitution, as originally framed
and adopted by a State, is inconsistent with that equality of civil
rights secured by the recent amendments to the Federal
Constitution, every civil suit or criminal prosecution in that
State against a colored man would be removable under sect. 641 of
the Revised Statutes into the Circuit Court of the United States,
although the State, by all its organs of authority -- legislative,
executive, and judicial -- should, without reservation or
qualification, recognize the legal effect as well of the amendments
as of the statutes enacted to enforce them. We cannot believe that
the section was intended by Congress to be so far-reaching in its
results, or that a reasonable construction of it requires us to
hold that the State of Delaware, by its Constitution and laws,
denies or prevents, or impairs the enforcement, in its judicial
tribunals, of rights secured by any law providing for the equal
civil rights of citizens of the United States. Had the State, since
the adoption of the Fourteenth Amendment, passed any statute in
conflict with its provisions, or with the laws enacted for their
enforcement, or had its judicial tribunals, by their decisions,
repudiated that amendment as a part of the supreme law of the land,
or declared the acts passed to enforce its provisions to be
inoperative and void, there would have been just ground to hold
that there was such a denial, upon its part, of equal civil rights,
or such an inability to enforce them in those tribunals, as, under
the Constitution and within the meaning of that section, would
authorize a removal of the suit or prosecution to the Circuit Court
of the United States. No such case is presented
Page 103 U. S. 393
here. The discrimination complained of does not result from the
Constitution or laws of the State, as expounded by its highest
judicial tribunal, and consequently it could not be made manifest
until after the action of the State court in the case commenced.
The prosecution against the plaintiff in error was not, therefore,
removable into the Circuit Court under sect. 641. 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 Union for the redress
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.
What we have said leads to the conclusion that the State court
did not err in refusing to grant the prayer of the petitioner for
removal.
The remaining question relates to the denial of the motions to
quash the indictment and the panels of jurors. The grounds upon
which the motions are placed were formally and distinctly stated,
and are fully set out in the bill of exceptions. They were the same
as those assigned in the verified petition filed by the accused for
the removal of the prosecution into the Circuit Court of the United
States,
viz., that from the grand jury that found, and
from the petit jury that was summoned to try, the indictment,
citizens of the African race, qualified in all respects to serve as
jurors, were excluded from the panels because of their race and
color, and that, in fact, persons of that race, though possessing
all the requisite qualifications, have always, in that county and
State, been excluded because of their race from serving on juries.
That colored persons have always been excluded from juries in the
courts of Delaware was conceded in argument, and was likewise
conceded in the court below. The Chief Justice, however,
accompanied that concession with the remark in reference to this
case
"that none but white men were selected is in nowise remarkable
in view of the fact -- too notorious to be ignored -- that the
Page 103 U. S. 394
great body of black men residing in this State are utterly
unqualified by want of intelligence, experience, or moral integrity
to sit on juries."
The exceptions, he said, were rare.
Although, for the reasons we have given, the prisoner was not
entitled to a removal of this prosecution into the Circuit Court of
the United States, he is not without remedy if the officers of the
State charged with the duty of selecting jurors were guilty of the
offence charged in his petition. A denial upon their part of his
right to a selection of grand and petit jurors without
discrimination against his race, because of their race, would be a
violation of the Constitution and laws of the United States which
the trial court was bound to redress. As said by us in
Virginia
v. Rives, supra, "[t]he court will correct the wrong, will
quash the indictment, or the panel; or, if not, the error will be
corrected in a superior court," and ultimately in this Court upon
review.
We repeat what was said in that case -- that, while a colored
citizen, party to a trial involving his life, liberty, or property,
cannot claim as matter of right that his race shall have a
representation on the jury, and while a mixed jury in a particular
case is not, within the meaning of the Constitution, always or
absolutely necessary to the equal protection of the laws, it is a
right to which he is entitled
"that, in the selection of jurors to pass upon his life,
liberty, or property, there shall be no exclusion of his race, and
no discrimination against them, because of their color."
So that we need only inquire whether, upon the showing made by
the accused, the court erred in overruling the motions to quash the
indictment and the panels of jurors.
We are informed by the bill of exceptions that, when the motions
to quash were made, it was agreed between the State, by its
Attorney General, and the prisoner, by his counsel, with the assent
of the court, that the statements and allegations in the petition
for removal "should be taken and treated, and given the same force
and effect, in the consideration and decision" of the motions, "as
if said statements and allegations were made and verified by the
defendant in a separate and distinct affidavit." The only object
which the prisoner's counsel could have had in filing the affidavit
was to establish the grounds
Page 103 U. S. 395
upon which the motions to quash were rested. It was in the
discretion of the court to hear the affidavit as evidence in
support of the motions. Under these circumstances, without any
evidence, by affidavit or otherwise, upon the part of the State,
the motions to quash were submitted for determination. They were
overruled upon the ground that "no evidence had been produced or
offered by the accused" to prove that the alleged exclusion of
colored persons from the juries was because of their color. The
court said that such fact of exclusion could not be established by
the circumstance that no persons of the African race were, in fact,
on the panels, but
"should have been proven affirmatively on the part of the
defendant, and by competent testimony outside of his affidavit
before said motions to quash could be granted."
Thereupon, before the accused had even been arraigned, or had
pleaded to the indictment, he further moved the court to permit him
to produce, as witnesses in support of the motions to quash,
"the commissioners of the Levy Court and the clerk and bailiff
of said Levy Court, and that the court should issue by its clerk
subpoenas for said persons as witnesses to testify as
aforesaid."
To the granting of that motion, the Attorney General of the
State objected, and his objection was sustained. The bill shows
that the motion to go into further proof was denied
"on the ground that full time to produce such witnesses to make
such proof had existed before the motion was heard; that
application for leave to summon witnesses to support a motion which
had been argued and refused, because of want of proof, when
sufficient time had existed for its production, was without
precedent in the Court of Oyer and Terminer in this State, and
therefore, in this case, the motion must be treated as coming too
late to be granted. "
Page 103 U. S. 396
It may be argued that the ruling of the court whereby the
prisoner was denied the privilege, after the motions to quash were
overruled and before the trial commenced, of making further proof
in support of the charge that both grand and petit juries had been
selected in violation of the Constitution and laws of the United
States is not the subject of review in this court. Without
discussing that proposition, we may remark, with entire respect for
the court below, that the circumstances, in our judgment, warranted
more indulgence in the matter of time than was granted to a
prisoner whose life was at stake and who was too poor to employ
counsel of his own selection. If it be suggested that the
commissioners, when summoned, could not have been compelled to
testify, it may be answered that they might not have claimed any
such exemption. But that objection, however plausible or weighty,
did not apply to the clerk and bailiff of the Levy Court. The clerk
of the Court of Oyer and Terminer was himself, as we are advised by
the opinion of the Chief Justice, the clerk of the Levy Court,
attending its sessions and assisting in the transaction of its
business. That officer, we may presume, was present in court when
the application to examine him as a witness was made. He and the
bailiff were in a position, perhaps, to clearly sustain or clearly
disprove the allegation that the grand and petit juries were
organized upon the principle of excluding therefrom all colored
persons because of their race -- a charge involving the fairness
and integrity of the whole proceeding against the prisoner.
But passing by this ruling of the court below as insufficient,
in itself, to authorize a reversal of the judgment, we are of
opinion that the motions to quash, sustained by the affidavit of
the accused -- which appears to have been filed in support of the
motions, without objection to its competency as evidence, and was
uncontradicted by counteraffidavits, or even by a formal denial of
the grounds assigned -- should have been sustained. If, under the
practice which obtains in the courts of the State, the affidavit of
the prisoner could not, if objected to, be used as evidence in
support of a motion to quash, the State could waive that objection,
either expressly or by not making it at the proper time. No such
objection appears to have been made by its Attorney General. On the
contrary, the agreement
Page 103 U. S. 397
that the prisoner's verified petition should be treated as an
affidavit "in the consideration and decision" of the motions
implied, as we think, that the State was willing to risk their
determination upon the case as made by that affidavit, in
connection, of course, with any facts of which the court might take
judicial notice. The showing thus made, including, as it did, the
fact (so generally known that the court felt obliged to take
judicial notice of it) that no colored citizen had ever been
summoned as a juror in the courts of the State -- although its
colored population exceeded twenty thousand in 1870, and in 1880
exceeded twenty-six thousand, in a total population of less than
one hundred and fifty thousand -- presented a
prima facie
case of denial, by the officers charged with the selection of grand
and petit jurors, of that equality of protection which has been
secured by the Constitution and laws of the United States. It was,
we think, under all the circumstances, a violent presumption which
the State court indulged that such uniform exclusion of that race
from juries during a period of many years was solely because, in
the judgment of those officers, fairly exercised, the black race in
Delaware were utterly disqualified, by want of intelligence,
experience, or moral integrity, to sit on juries. The action of
those officers in the premises is to be deemed the act of the
State, and the refusal of the State court to redress the wrong by
them committed was a denial of a right secured to the prisoner by
the Constitution and laws of the United States. Speaking by Mr.
Justice Strong in
Ex parte Virginia, we said, and now
repeat, that
"a State acts by its legislative, its executive, or its judicial
authorities. It can act in no other way. The constitutional
provision, therefore, must mean that no agency of the State, or of
the officers or agents by whom its powers are executed, shall deny
to any person within its jurisdiction the equal protection of the
laws. Whoever, by virtue of public position under a State
government, deprives another of property, life, or liberty without
due process of law, or denies or takes away the equal protection of
the laws, violates the constitutional inhibition; and as he acts in
the name and for the State, and is clothed with the State's
authority, his act is that of the State. This must be, or the
constitutional prohibition has no meaning. "
Page 103 U. S. 398
The judgment of the Court of Oyer and Terminer will be reversed,
with directions to set aside the judgment and verdict, as well as
the order denying the motion to quash the indictment and panels of
jurors, and for such proceedings, upon a further hearing of those
motions, as may be consistent with the principles of this opinion;
and it is
So ordered.
MR. CHIEF JUSTICE WAITE and MR. JUSTICE FIELD dissented.
MR. CHIEF JUSTICE WAITE.
I am unable to concur in this judgment. We said in
Virginia
v. Rives, 100 U. S. 313,
that the mere fact that no person of color had been allowed to
serve on juries where colored men were interested was not enough to
show that they had been discriminated against because of their
race. That is all that was shown in this case on the motions to
quash, except that the accused declared in his affidavit that the
exclusion of colored men from juries in Delaware had been because
of their race. I cannot believe that the refusal of the court, on
such an affidavit unsupported by any evidence, to quash the
indictment and the panel of jurors because he had been
discriminated against on account of his race was such an error in
law as to justify a reversal of the judgment. As the motions had
once been submitted on his affidavit alone and decided, it rested
in the discretion of the court to allow a rehearing and permit
further evidence to be introduced. The refusal of the court to do
so cannot, as I think, be assigned for error here.
MR. JUSTICE FIELD.
I am unable to concur with the majority of the Court in the
decision in this case. It proceeds upon two assumptions, both of
which, in my judgment, are erroneous: one, that on motions to the
court the averments of a party as to matters not resting within his
personal knowledge, if not specially contradicted, are to be taken
as true; the other, that the clause in the Fourteenth Amendment to
the Constitution prohibiting the States from denying to any person
within their jurisdiction the equal protection of the laws requires
them,
Page 103 U. S. 399
in cases affecting the rights and interests of persons of the
colored race, to summon persons of that race for jury service.
The defendant, who is a colored man, was indicted in May, 1880,
in the court of general sessions for the county of New Castle, in
the State of Delaware, for a rape upon a white woman, a crime
punishable in that State with death. On motion of the Attorney
General of the State, the indictment was removed for trial to the
Court of Oyer and Terminer of the county. The defendant then
presented a petition, praying for its removal to the Circuit Court
of the United States, setting forth as grounds for the application,
that he was a citizen of the United States and of the State of
Delaware, of African race and descent; that, by the statutes of the
State, all persons qualified to vote at its general elections were
liable to serve as jurors, with certain exceptions not important to
be here mentioned; but that, by the Constitution of the State, the
right of an elector was enjoyed only by free white male citizens
over the age of twenty-one years; that the Levy Court of New Castle
County was required, at its annual session in March, to select from
the list of the taxable citizens of the county the names of one
hundred sober and judicious persons to serve, if summoned, as grand
jurors at the several courts to be held that year; and also the
names of one hundred and fifty other sober and judicious persons to
serve, it summoned, as petit jurors in such courts; that the Levy
Court, at its session in March, 1880, in thus selecting persons to
serve, if summoned, as grand and petit jurors in those courts,
including that of the general sessions and that of Oyer and
Terminer, had selected no persons of color or African race, but, on
the contrary, had excluded them because of their race and color;
that the prothonotary and clerk of the peace of the county had
drawn from the list of those thus selected the grand jurors by whom
the indictment against the petitioner was found, and the petit
jurors by whom he was to be tried, and that persons of color and of
African race, though otherwise qualified, had always been excluded
from serving on juries, in the county and State, because of their
race and color; that, by reason thereof, the petitioner, in the
finding of the indictment had been, and in the trial thereof would
be, denied the equal protection of the laws; and further, that, by
the exclusion of all
Page 103 U. S. 400
persons of color and African race from the grand and petit
juries of the State, by force of its Constitution and laws, the
petitioner was denied, and could not enforce in its judicial
tribunals, the right secured to him by the act of Congress
providing for the equal civil rights of citizens of the United
States.
The Constitution of Delaware was adopted in 1831, and the
counsel for the defendant, in presenting the petition, assumed that
its limitation of the right of suffrage to white male citizens was
still operative notwithstanding the Fifteenth Amendment, and that,
as white persons are there named as electors, only such were
allowed to serve as jurors. But this view is clearly untenable. The
Fifteenth Amendment took effect upon its adoption, and operated to
strike out the word "white" from the Constitution of Delaware, and
such has been the uniform ruling of the courts of that State. The
Court of Oyer and Terminer accordingly held that there was no law
of the State forbidding the Levy Court to select persons of African
race and color as jurors because of their race and color, if
otherwise qualified; and further, that it did not appear that the
grand and petit juries, though composed entirely of white persons,
were so made up by the exclusion of colored persons on the ground
of their race and color, or that the defendant was denied any right
secured to him as a citizen of the United States through the
selection of those panels. The application for a removal of the
indictment to the United States Circuit Court was therefore denied.
It is not necessary to justify this ruling by any extended
argument, for it is held by a majority of this court that the
removal was properly refused.
The defendant then moved to quash the indictment and the panel
of grand jurors by which it was found, and the panel of petit
jurors summoned for its trial, giving as reasons for the motion the
action of the Levy Court in selecting persons to serve, if
summoned, as grand and petit jurors, and the action of the
prothonotary and clerk of the peace of the county in drawing the
jurors from the list of those selected, and the consequent
deprivation of the petitioner's rights, all of which are stated in
the petition for the removal of the case. No additional affidavit
was filed, but the Attorney General of the State waived this
omission and consented that the statements in that petition
Page 103 U. S. 401
should be taken and treated as of the same force and effect in
the consideration of the motion to quash as if presented by a
separate affidavit. The motion was then heard, and, after being
retained under advisement for some days, was denied because,
although in fact no persons of African race or color were on the
panel either of the grand or petit jury, no evidence had been
produced or offered by the defendant to prove his statement that
the exclusion was by reason of their color or race, and the court
could not accept such fact as established from the circumstance
that no such persons were on either list or panel, nor from the
unaided affidavit of the defendant, but held that it should have
been proved affirmatively by competent testimony outside of his own
affidavit. This ruling constitutes, in the opinion of the majority
of the court, reversible error.
It is obvious that the mere fact that no persons of the colored
race were selected as jurors is not evidence that such persons were
excluded on account of their race or color. The law only required
one hundred "sober and judicious" persons to be selected to serve
as grand jurors, and one hundred and fifty such persons as petit
jurors, out of the whole body of the county, and these numbers may
have been selected without any other consideration than their merit
and fitness to perform jury duty. There is no suggestion that the
grand jurors by whom the indictment was found, or the petit jurors
summoned for the trial, had not the prescribed qualifications, and
were not "sober and judicious" men. It would seem, when the law has
been obeyed, as in this case, that something more than the mere
absence of colored persons from the panels should be shown before
they can be set aside. And the fact that colored persons had never,
since the Act of Congress of May 1, 1875, been selected as jurors
may be attributed to other causes than those of race and color.
In
Virginia v. Rives, which was before us at the last
term, it was urged for the removal of the indictment against
persons of the colored race from the State to the Federal court
that the grand jury by which they were indicted, and the jury by
which they were to be tried, were composed wholly of persons of the
white race, and that none of their race had ever been
Page 103 U. S. 402
allowed to serve as jurors in the county of Patrick (where the
indictment was found, and the trial was to take place), in any case
in which a colored man was interested; but the court, speaking
through Mr. Justice Strong, said that this statement fell
"short of showing that any civil right was denied, or that there
had been any discrimination against the defendants because of their
color or race. The facts may have been as stated, and yet the jury
which indicted them, and the panel summoned to try them, may have
been impartially selected."
100 U. S. 100 U.S.
313,
100 U. S. 322.
Upon this subject the court below said:
"That none but white men were selected is in nowise remarkable
in view of the fact -- too notorious to be ignored -- that the
great body of black men residing in this State are utterly
unqualified by want of intelligence, experience, or moral integrity
to sit on juries. Exceptions there are, unquestionably, but they
are rare, and so much so that it is not often that more than one
colored man appears upon a panel in the United States courts which
have a whole State to select from, whereas, in this case, the
selection was confined to a single county. And in support of the
suggestion of unfitness, we have the fact that, though the
constitutional amendment and the legislation 'appropriate' to carry
it into effect have been in force, the former for about fifteen
years and the latter over five years, yet no instance has yet
occurred where parties to a proceeding -- and they are very often
colored men -- have ever selected a man of African descent as a
referee. This fact is not to be disregarded in assigning a cause
for the exclusion of negroes from juries, if such exclusion could
be shown to have been made. With our knowledge, as men of the
State, of the African race in Delaware, and of the circumstance
just referred to, it would be wholly unwarranted in us to infer
exclusion for the mere reason of color because our juries are, in
point of fact, composed of white men alone; or to entertain a
suspicion of such cause unless it had better support than the
wholly unsupported affidavit of the defendant. To impute to the
levy court a purpose to do otherwise than perform their duty by the
selection of 'sober and judicious' persons to serve upon the
juries, as the law requires, would be a wrong on our part upon the
well known principle that, in the absence of proof to the contrary,
a public officer,
Page 103 U. S. 403
discharging an official obligation or function, is to be
presumed to have done it faithfully according to law."
It also seems to me plain that the court below properly refused
to accept as true the statements in the defendant's affidavit. If
the unsupported statements of a party thus made could be taken as
true, on a motion to quash, very few indictments would stand before
the affidavits which would be offered. Here, the affidavit was as
to matters which could not possibly have been within the knowledge
of the petitioner. However positive his averments, they must,
therefore, be taken, like the averments as to the law of the State,
as made upon information and belief only. It also imputed grave
offenses to the officers of the Levy Court if the act of Congress
on the subject of jurors in State courts is valid. Under these
circumstances, to accept as conclusive his statements would be --
as was well observed by counsel -- to reverse all the rules of
evidence, overturn all orderly procedure in courts of justice, and
contradict the settled maxims of ordinary human experience. It
would be giving to his expression of opinion and belief, as to the
criminal conduct of public officers, the force of positive
proof.
After the decision of the motion, the defendant applied for
leave to produce the commissioners and the clerk and bailiff of the
Levy Court as witnesses to establish his statements, and that
subpoenas be issued for them. This application was denied on the
ground that sufficient time had existed to produce such witnesses
before the motion was heard, the court observing that
"application for leave to summon witnesses to support a motion
which had been argued and refused because of want of proof, when
sufficient time had existed for its production, was without
precedent in the Court of Oyer and Terminer of the State, and
therefore, in this case, the motion must be treated as coming too
late."
I may add to what is thus stated that, so far as my knowledge
extends, the application is without precedent in any court.
Applications may be heard for a rehearing; but, until a rehearing
is had, it is not permissible to call witnesses for the motion
already decided. Besides this consideration, there was no affidavit
nor suggestion by the defendant that the officers named would
support his statement. His
Page 103 U. S. 404
motion was simply for permission to make the experiment by
calling them to the stand. The prothonotary and clerk of the peace
were not shown to have had any knowledge on the subject, and the
commissioners of the Levy Court could not have been required to
answer as to the asserted fact that persons were excluded by them
from the jury list on account of their race or color. If the law of
Congress prohibiting such exclusion be valid, the commissioners by
such action would have subjected themselves to penalties. And,
whilst it is true that a witness may not claim exemption from
answering questions where the answer might subject him to a
criminal prosecution, yet it would be an unusual thing to require
parties to be summoned upon a suggestion that they might be willing
to criminate themselves and thus furnish support to a motion. The
refusal to allow the defendant to make such an experiment with the
commissioners, and to enter on an exploring expedition with the
others named, does not appear to be a harsh ruling meriting
animadversion, but one perfectly just and proper. And, in this
connection, the statement of counsel of the defendant in their
printed brief is not to be overlooked -- that it was not in his
power
"to produce any evidence of the intent with which the Levy Court
excluded men of his race and color from the jury lists, other than
the presumptive evidence already discussed"
-- that is, such as arose from the fact that they had always
been excluded from jury service; a statement which is equivalent to
an admission that the right for which counsel now contend, had it
been allowed to the defendant, would have been of no avail to
him.
But erroneous as I deem the ruling of the majority of this court
in the weight accorded to the unsupported averments of the
defendant as to matters not within his personal knowledge, the
meaning given to the concluding clause of the Fourteenth Amendment
presents a matter for consideration of far greater importance.
True, the opinion only reaffirms the doctrine in the cases from
Virginia decided at the last term. I thought the doctrine erroneous
then, and, with great deference to my associates, I must say that,
after a careful and repeated perusal of their opinion, my
conviction remains unchanged. The legislation of Congress, which
requires persons of the colored race
Page 103 U. S. 405
to be admitted to serve as jurors in State courts, is contained
in the fourth section of the act of March 1, 1875, c. 114, "to
protect all citizens in their civil and legal rights," which
declares:
"That no citizen possessing all other qualifications, which are
or may be prescribed by law, shall be disqualified for service as
grand or petit juror in any court of the United States, or of any
State, on account of race, color, or previous condition of
servitude; and any officer or other person charged with any duty in
the selection or summoning of jurors, who shall exclude or fail to
summon any citizen for the cause aforesaid, shall, on conviction
thereof, be deemed guilty of a misdemeanor, and be fined not more
than five thousand dollars."
Before the adoption of the Thirteenth, Fourteenth, and Fifteenth
Amendments to the Constitution, no one would have pretended that
Congress possessed any power to legislate with respect to jurors --
grand or petit -- in the State courts. Upon no one subject would
there have been a more general concurrence of opinion than that
their selection was a matter entirely of State regulation; that it
was for the States exclusively to determine who should be liable to
serve as jurors in their courts, what qualifications they should
possess, and in what manner they should be selected. Indeed, it was
competent for the States to dispense completely with juries, and to
require all suits, civil and criminal, to be determined without
their aid.
Of the three amendments, it is plain that the Thirteenth and
Fifteenth have no bearing upon the selection of jurors. The
Thirteenth prohibits slavery and involuntary servitude, except in
punishment for crime, within the United States, or in any other
place subject to their jurisdiction. It makes everyone within all
our broad domain, and wherever our jurisdiction extends, on land or
sea, a freeman, with the same right to pursue his happiness as all
others, and on like conditions. But it does not undertake to do
anything more; it does not confer any political rights; it leaves
the States with all their previous powers to determine who shall
fill their offices and be entrusted with the administration of
their laws. A similar provision was found in the constitutions of
all the Free States, and it was never supposed that it impaired in
any respect the sovereign
Page 103 U. S. 406
right and power of the people of every State to determine to
whom they would confide the trusts of government.
The Fifteenth Amendment only prohibits the denial or abridgment
of the elective franchise to citizens by reason of their race,
color, or previous condition of servitude. It excludes from the
power of the State one ground of limitation upon the qualification
of voters; it relates to no other subject. It is, then, to the
Fourteenth Amendment that the advocates of the congressional act
must resort to find authority for its enactment, and to the first
section of that amendment, which is as follows:
"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 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."
In the first clause of this section, declaring who are citizens
of the United States, there is nothing which touches the subject
under consideration. The second clause, declaring that "no State
shall make or enforce any law which will abridge the privileges or
immunities of citizens of the United States," is limited, according
to the decision of this court in the
Slaughter-House
Cases, to such privileges and immunities as belong to citizens
of the United States, as distinguished from those of citizens of
the State. If this construction be sound -- and, restricted as it
is, it has not been overruled by those who approve of a loose and
latitudinarian construction of another clause of the same section
-- it will not be contended that the privilege of persons to act as
jurors is covered by the inhibition. But if a broader construction
be given to the clause, such as was advocated by the dissenting
judges in the
Slaughter-House Cases, the inhibition can
have no application. The Constitution, previous to this amendment,
declared that "the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States," and
it was never supposed or contended that jury duty or jury service
was included among those privileges and immunities. The third
clause, which
Page 103 U. S. 407
declares that no State shall deprive any person of life,
liberty, or property without due process of law, has no reference
to this subject. That is a provision found in all our State
constitutions from the origin of the government, and is intended to
protect life, liberty, and property from arbitrary legislation. It
is upon the last clause of the section that the majority of the
court are compelled to rely to sustain the act of Congress. "No
State shall deny to any person within its jurisdiction the equal
protection of the laws." What, then, is meant by this provision,
"equal protection of the laws"? All persons within the jurisdiction
of the State, whether citizens or foreigners, male or female, old
or young, are embraced in its comprehensive terms. If to give equal
protection to them requires that persons of the classes to which
they severally belong shall have the privilege or be subject to the
duty -- whichever it may be -- of acting as jurors in the courts in
cases affecting their interests, the mandate of the Constitution
will produce a most extraordinary change in the administration of
the laws of the States; it will abolish the distinctions made in
the selection of jurors between citizens and foreigners, and
between those of our race and those of the Mongolian, Indian, and
other races, who may be at the time within their jurisdiction. A
Chinaman may insist that people of his race shall be summoned as
jurors in cases affecting his interests, and that the exclusion is
a denial to him of the equal protection of the laws. Any foreigner,
sojourning in the country, may make a similar claim for jurors of
his nation. It is obvious that no such claim would be respected,
and yet I am unable to see why it should not be sustained if the
construction placed upon the amendment by the majority of the court
in this case be sound.
It seems to me that the universality of the protection
contemplated by the clause in question renders the position of the
majority of the court untenable. No one can truly affirm that
women, the aged, and the resident foreigner, whether Caucasian or
Mongolian, though excluded from acting as jurors, are not as
equally protected by the laws of the State as those who are allowed
or required to serve in that capacity. To afford equality of
protection to all persons by its laws does not require the State to
permit all persons to participate equally in the
Page 103 U. S. 408
administration of those laws, or to hold its offices, or to
discharge the trusts of government. Equal protection of the laws of
a State is extended to persons within its jurisdiction, within the
meaning of the amendment, when its courts are open to them on the
same terms as to others, with like rules of evidence and modes of
procedure, for the security of their persons and property, the
prevention and redress of wrongs, and the enforcement of contracts;
when they are subjected to no restrictions in the acquisition of
property, the enjoyment of personal liberty, and the pursuit of
happiness, which do not equally affect others; when they are liable
to no other nor greater burdens or charges than such as are laid
upon others, and when no different nor greater punishment is
enforced against them for a violation of the laws. When this
condition of things exists in a State, there is that equality
before the law which is guaranteed to all persons within its
jurisdiction. The amendment, as I said in
Ex parte
Virginia,
"secures to all persons their civil rights upon the same terms;
but it leaves political rights, or such as arise from the form of
government and its administration, as they stood previous to its
adoption. It has no more reference to them than it has to social
rights and duties, which do not rest upon any positive law, though
they are more potential in controlling the intercourse of
individuals. . . . This is manifest from the fact that when it was
desired to confer political power upon the newly made citizens of
the States, as was done by inhibiting the denial to them of the
suffrage on account of race, color, or previous condition of
servitude, a new amendment was required."
100 U. S. 100 U.S.
339,
100 U. S.
368.
The position that, in cases where the rights of colored persons
are concerned, it is essential for their protection that
individuals of their race should be summoned as jurors is founded
upon the assumption that, in such cases, white persons will be
prejudiced jurors. "If this position," as I said in the case
cited,
"be correct, there ought not to be any white persons on the jury
when the interests of colored persons only are involved. That jury
would not be an honest or fair one of which any of its members
should be governed in his judgment by other considerations than the
law and the evidence, and
Page 103 U. S. 409
that decision would hardly be considered just which should be
reached by a sort of compromise in which the prejudices of one race
were set off against the prejudices of the other."
Id., 100 U. S.
369.
As I am unable to find any warrant in the Fourteenth Amendment
for the legislation of Congress interfering with the selection of
jurors in the State courts, or to perceive, even if that
legislation be deemed valid, any error in the ruling of the court
of Delaware, I am of opinion that its judgment should be
affirmed.
