The principle reaffirmed that while a state, consistently with
the purposes for which the Fourteenth 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, and while a mixed jury in a particular
case is not, within the meaning of the Constitution, always or
absolutely necessary to the enjoyment of the equal protection of
the laws, and therefore an accused, being of the colored race,
cannot claim as matter of right that his race shall be represented
on the jury; yet 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 would be a discrimination against the former inconsistent
with the amendment and within the power of Congress, by appropriate
legislation, to prevent.
Section 641 of the Revised Statutes, providing for the removal
of civil suits or criminal prosecutions from the state courts into
the circuit courts of the United States, does not embrace a case in
which a right is denied by judicial action during a trial, or in
the sentence, or in the mode of executing the sentence. For such
denials arising from judicial action after a trial commenced, the
remedy lies in the revisory power of the higher courts of the
state, and ultimately in the power of review which this
Page 162 U. S. 566
court may exercise over their judgments whenever rights,
privileges, or immunities claimed under the Constitution or laws of
the United States are withheld or violated. 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 section 641 refers, and on account of which
a criminal prosecution may be removed from a state court, 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 or during
the trial of the case.
The fact that citizens of the African race had been excluded
because of their race from service on previous grand juries as well
as from the grand jury which returned the particular indictment in
the case on trial will not authorize a removal of the prosecution
under section 641 of the Revised Statutes, but is competent
evidence only on a motion to quash the indictment.
It is not every denial by a state enactment of rights secured by
the Constitution or laws of the United States that is embraced by
section 641 of the Revised Statutes. The right of removal given by
that section exists only in the special cases mentioned in it.
The requirement of the Mississippi Constitution of 1890 that no
person should be a grand or petit juror unless he was a qualified
elector and able to read and write did not prevent the legislature
from providing, as was done in the Code of 1892, that persons
selected for jury service should possess good intelligence, sound
judgment, and fair character. Such regulations are always within
the power of a legislature to establish unless forbidden by the
Constitution. They tend to secure the proper administration of
justice, and are in the interest, equally, of the public and of
persons accused of crime.
The Mississippi Code of 1892, in force when the indictment was
found, did not affect in any degree the substantial rights of those
who had committed crime prior to its going into effect. It did not
make criminal and punishable any act that was innocent when
committed, nor aggravate any crime previously committed, nor
inflict a greater punishment than the law annexed to such crime at
the time of its commission, nor alter the legal rules of evidence
in order to convict the offender.
The inhibition upon the passage of
ex post facto laws
does not give a criminal a right to be tried in all respects by the
law in force when the crime charged was committed. The mode of
trial is always under legislative control, subject only to the
condition that the legislature may not, under the guise of
establishing modes of procedure and prescribing remedies, violate
the accepted principles that protect an accused person against
ex post facto enactments.
The conduct of a criminal trial in a state court cannot be
reviewed by this Court unless the trial is had under some statute
repugnant to the Constitution of the United States, or was so
conducted as to deprive the accused of some right or immunity
secured to him by that instrument.
Page 162 U. S. 567
Mere error in administering the criminal law of a state or in
the conduct of a criminal trial -- no federal right being invaded
or denied -- is beyond the revisory power of this Court under the
statutes regulating its jurisdiction. Indeed, it would not be
competent for Congress to confer such power upon this or any other
court of the United States.
The Constitution of the United States, in its present form,
forbids, so far as civil and political rights are concerned,
discrimination by the General government or by the states against
any citizen because of his race. All citizens are equal before the
law. The guarantees of life, liberty and property are for all
persons within the jurisdiction of the United States or of any
state, without discrimination against any because of their race.
Those guarantees, when their violation is properly presented in the
regular course of proceedings, must be enforced in the courts both
of the nation and of the state, without reference to considerations
based upon race. In the administration of criminal justice, no rule
can be applied to one class which is not applicable to all other
classes.
The plaintiff in error was indicted in the Circuit Court of
Washington County, Mississippi, for the crime of having, in that
county, and on the 12th day of December, 1892, killed and murdered
one Stinson.
When the case was called for trial, the accused presented a
petition for its removal to the Circuit Court of the United States
for the Western Division of the Southern District of Mississippi.
The petition was verified by the oath of the accused to the effect
that the facts set forth in it were true and correct to the best of
his knowledge and belief, and was as follows:
"This petition respectfully shows unto this Court hat John
Gibson, a citizen of said state and of the United States of
America, is a negro of the African descent and color black. That,
under the Constitution of the State of Mississippi, which was
adopted in the constitutional convention in November, 1890, it
prescribes that the qualification for persons to serve as jurors in
said state shall be that the ability of said citizens, qualified
electors of the county and state, male, being citizens thereof, not
having [been] convicted of specified crimes, shall be able to read
and write, but the legislature shall provide by law for procuring a
list of persons so qualified to draw therefrom of grand and petit
jurors for each term of the circuit court. Constitution of
Mississippi, Sec. 264. Section 2358
Page 162 U. S. 568
of the Code of Mississippi for 1892, adopted the 1st day of
April, 1892, and in force at the time of the finding of the bill of
indictment filed herein against relator, provides that at the first
meeting of each year or as soon as practicable thereafter, the
board of supervisors shall make a list of persons to serve as
jurors in the circuit court for the next two terms to be held more
than thirty days afterwards, and as a guide in making the list they
shall use the registration book of voters, and shall select and
list the names of qualified persons of good intelligence, sound
judgment, and fair character, and shall take them, as nearly as it
can conveniently, from the several districts, in proportion to the
number of the qualified persons in each, excluding all who have
served on the regular panel within two years, if there be not a
deficiency of jurors. Relator states that, under section 283 of the
new Constitution of Mississippi, the indictment returned against
him should have been by a jury of the grand inquest of the said
county, under the laws of the Code of said state, adopted in 1880,
because the crime for which this indictment was returned is alleged
to have been committed January, 1892, before the statute of 1892
took effect."
"Relator states that under the laws of said state provided by
the Code of 1880 thereof, the only qualifications required are
shown by section 1661 of said Code, to-wit:"
"All male citizens of the United States and not being under the
age of twenty-one years nor over the age of sixty years, and not
having been convicted of any infamous crime, shall be qualified to
serve as jurors within the County of their residence."
"Section 1664 of Code of 1880 also provides that the board of
supervisors of each county shall at least twenty days before every
term of the circuit court, select twenty persons competent to serve
as jurors in said county, to be taken, as nearly as conveniently
may be, in equal numbers from each supervisor's district of the
county, who shall serve as grand jurors for the next ensuing term
of said court."
"Relator states that at the time the said grand jury of said
county was selected, impaneled, and charged by this Court at the
December term, 1892, a great federal [right] of his was
Page 162 U. S. 569
abridged,
viz., the civil right guarantied to him under
the Fourteenth Amendment to the Constitution of the United States,
particularly, to-wit, 'No state shall deny to any person within its
jurisdiction the protection of the laws.'"
"Relator states that on the 9th day of January, 1892, Robert
Stinson, a white man, was killed at Refuge plantation in the said
county, and that he was accused of the homicide; that prosecution
against him had been commenced before the adoption of the Code of
1892; that by reason of the great prejudice against him by the
officers charged with the selection of the said jury of grand
inquest for the said December term of the said circuit court, which
officers so charged are all members of the white race, and the
relator herein being a member of the black race, black in color.
Although at the time of selecting the grand jurors for the said
December term, 1892, there were in the five supervisors' districts
of the said County of Washington 7,000 colored citizens competent
for jury service of the County of Washington, State of Mississippi,
and 1,500 whites qualified to serve as jurors in said county, there
had not been for a number of years any colored man ever summoned on
the grand jury of said county court, and that the colored citizens
were purposely, on account of their color, excluded from jury
service by the officers of the law charged with the selection of
said jurors. Relator states that by reason of the great prejudice
against him in this matter, that the said officers of the law
charged with the selection of the said grand jurors for the
December term, 1892, on account of his color, being that of a
negro, black, and the deceased being that of a white man, of the
white race, in selecting persons to serve as grand jurors at said
term, all colored men were purposely, on account of their color,
excluded by said officers, and that the said grand jury did then
and there, being all white men, purposely selected on account of
their color, present the bill of indictment against relator for the
murder of Robert Stinson aforesaid, on account of his color, and
pray summons for witnesses to prove same. Relator avers that by
reason of the great prejudice against him on account of his color,
he could not secure a fair and impartial trial by an impartial
Page 162 U. S. 570
petit jury of the County of Washington, state aforesaid, and
prays an opportunity to subpoena witnesses to prove the same, and
therefore after hearing same, doth pray the removal of his case
from this Court to the United States Circuit Court for the Western
Division of the Southern District of Mississippi, and that record
hereof be properly certified to said court by an order from this
Court."
The petition for removal was denied, and the defendant excepted
to the action of the court.
Thereupon the accused demanded that a special venire be summoned
to try his case. The regular jury box for the court having been
produced for the purpose of drawing therefrom the special venire,
the defendant moved "to quash said jury box" upon the ground that
it was illegal, and had but few names therein. That motion was
sustained, and a writ of special
venire facias was
directed to be issued for summoning fifty good and lawful men and
qualified jurors to appear on a named day to serve as jurors in the
cause. The sheriff was directed to serve on the defendant or his
counsel a copy of the writ of
venire facias, together with
his return thereon showing the names of the persons so summoned,
and also a copy of the indictment. This order was executed, and,
the requisite number of jurors having appeared, on a subsequent day
of the court, the defendant moved to quash the special venire. The
motion was overruled, the defendant taking an exception. The
accused then announced himself ready for trial. A jury was
selected, the defendant pleaded not guilty, and the trial resulted
in a verdict of guilty as charged in the indictment. The opinion of
the supreme court of the state states that this was the third trial
of the defendant for the crime charged, each trial resulting in a
verdict of guilty.
A new trial was asked upon various grounds, one of which was
that the court erred in overruling the defendant's petition for the
removal of the cause into the circuit court of the United States
for trial; another, that it erred in not sustaining the motion to
quash the special venire of fifty "good and lawful" men to serve as
special jurors. These points were insisted upon in the Supreme
Court of Mississippi. But that
Page 162 U. S. 571
court held that there was no error in overruling the motion to
remove the case into the federal circuit court. It also refused to
disturb the verdict and judgment.
Page 162 U. S. 579
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first question presented for our consideration relates to
the application of the accused for the removal of the prosecution
from the state court into the circuit court of the United
States.
By section 641 of the Revised Statutes it is provided:
"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
Page 162 U. S. 580
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,"
etc.
In
Neal v. Delaware, 103 U. S. 370,
103 U. S.
385-386, reference was made to the previous cases of
Strauder v. West Virginia, Virginia v. Rives, and
Ex
Parte Virginia, 100 U. S. 303,
100 U. S. 313,
199 U. S. 339,
and to sections 641 and 1977 of the Revised Statutes; also, to the
Act of March 1, 1875, 18 Stat. 337, c. 114, which, among other
things, declared 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."
The cases cited were held to have decided that the statutory
enactments referred to were constitutional exertions of the power
of Congress to enact appropriate legislation for the enforcement of
the provisions of the Fourteenth Amendment, which was designed
primarily 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 the 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, and while a mixed jury in a particular case is not,
within the meaning of the Constitution, always or absolutely
necessary to the enjoyment of the equal protection of the laws, and
therefore an accused, being of the colored race, cannot claim, as
matter of right, that his race shall be represented on the jury,
yet a denial to citizens of the African race,
because of their
color, of the right or privilege accorded to white citizens or
participating as jurors in the administration of justice would be a
discrimination
Page 162 U. S. 581
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 were excluded,
because of their
color, men 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 states
where the blacks have the majority, of the white race because of
their color.
But those cases were held to have also decided that the
Fourteenth Amendment was broader than the provisions of section 641
of the Revised Statutes; that, since that section authorized the
removal of a criminal prosecution before trial, it did not embrace
a case in which a right is denied by judicial action during a
trial, or in the sentence, or in the mode of executing the
sentence; that for such denials, arising from judicial action after
a 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 claimed under 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 section 641 refers, and on account
of which a criminal prosecution may be removed from a state court,
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 or during
the trial of the case.
We therefore held in
Neal v. Delaware that Congress had
not authorized a
removal of the prosecution from the state
court where jury commissioners or other subordinate officers
had, without authority derived from the constitution and laws of
the state, excluded colored citizens from juries because of their
race.
Page 162 U. S. 582
In view of this decision, it is clear that the accused in the
present case was not entitled to have the case removed into the
circuit court of the United States unless he was denied, by the
constitution or laws of Mississippi, some of the fundamental rights
of life or liberty that were guarantied to other citizens resident
in that state. The equal protection of the laws is a right now
secured to every person without regard to race, color, or previous
condition of servitude, and the denial of such protection by any
state is forbidden by the supreme law of the land. These principles
are earnestly invoked by counsel for the accused. But they do not
support the application for the removal of this case from the state
court in which the indictment was found, for the reason that
neither the Constitution of Mississippi nor the statutes of that
state prescribe any rule for, or mode of procedure in, the trial of
criminal cases which is not equally applicable to all citizens of
the United States and to all persons within the jurisdiction of the
state, without regard to race, color, or previous condition of
servitude. Nor would we be justified in saying that the
constitution and laws of the state had, at the time this
prosecution was instituted, been so interpreted by the Supreme
Court of Mississippi as to show in advance of a trial that persons
of the race to which the defendant belongs could not enforce in the
judicial tribunals of the state the rights belonging to them in
common with their fellow citizens of the white race. If such had
been the case, it might well be held that the denial of the equal
protection of the laws arose primarily from the Constitution and
laws of the state. But when the constitution and laws of a state,
as interpreted by its highest judicial tribunal, do not stand in
the way of the enforcement of rights secured equally to all
citizens of the United States, the possibility that, during the
trial of a particular case, the state court may not respect and
enforce the right to the equal protection of the laws constitutes
no ground under the statute
for removing the prosecution
into the circuit court of the United States in advance of a
trial.
We may repeat here what was said in
Neal v. Delaware --
namely that, in thus construing the statute,
"we do not withhold
Page 162 U. S. 583
from a party claiming that he is denied, or cannot enforce, in
the judicial tribunals of the state, his constitutional equality of
civil rights all opportunity of appealing to the courts of the
United States for 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."
So, in
Bush v. Kentucky, 107 U.
S. 110,
107 U. S. 116,
which was an indictment for murder, returned before, but tried
after, the Court of Appeals of Kentucky held unconstitutional a
statute of that commonwealth excluding from grand or petit juries
citizens of African descent because of their race and color, and
had declared that thereafter every officer charged with the duty of
selecting or summoning jurors must so act without regard to race or
color, this Court said:
"That decision was binding as well upon the inferior courts of
Kentucky as upon all its officers connected with the administration
of justice. After that decision, so long as it was unmodified, it
could not have been properly said in advance of a trial that the
defendant in a criminal prosecution was denied or could not enforce
in the judicial tribunals of Kentucky the rights secured to him by
any law providing for the equal civil rights of citizens of the
United States or of all persons within their jurisdiction. The last
indictment was consequently not removable into the federal court
for trial under section 641 at any time after the decision in
Commonwealth v. Johnson, 78 Ky. 509, had been pronounced.
This point was distinctly ruled in
Neal v. Delaware, and
is substantially covered by the decision in
Virginia v.
Rives, 100 U. S. 313. If any right,
privilege, or immunity of the accused secured or guarantied by the
Constitution or laws of the United States had been denied by a
refusal of the state court to set aside either that indictment or
the panel of petit jurors, or by any erroneous ruling in the
progress of the trial, his remedy would have been through the
revisory power of the highest court of the state, and
ultimately
Page 162 U. S. 584
through that of this Court."
See also In re Wood, 140 U. S. 278,
140 U. S.
284.
In his petition for the removal of the prosecution into the
circuit court of the United States, the defendant also states that
notwithstanding at the time of selecting the grand jurors for the
said December term, 1892, there were in the five supervisors'
districts of the County of Washington 7,000 colored citizens
competent for jury service, and 1,500 whites qualified to serve as
jurors, there had not been for a number of years any colored man
summoned on the grand jury in that county, and that colored
citizens were purposely, on account of their color, excluded from
jury service by the officers of the law charged with the selection
of jurors. It is clear in view of what has already been said that
these facts, even if they had been proved and accepted, do not show
that the rights of the accused were denied by the constitution and
laws of the state, and therefore did not authorize the removal of
the prosecution from the state court. If it were competent in a
prosecution of a citizen of African descent to prove that the
officers charged with the duty of selecting grand jurors had, in
previous years and in other cases, excluded citizens of that race
because of their race from service on grand juries -- upon which
question we need not express an opinion -- it is clear that such
evidence would be for the consideration of the trial court upon a
motion by the accused to quash the indictment, such motion being
based upon the ground that the indictment against him had been
returned by a grand jury from which were purposely excluded,
because of their color, all citizens of the race to which he
belonged.
United States v. Gale, 109 U. S.
65,
109 U. S. 69.
But there was no motion to quash the indictment. The application
was to remove the prosecution from the state court, and a removal,
as we have seen, could not be ordered upon the ground simply that
citizens of African descent had been improperly excluded because of
their race, and without the sanction of the Constitution and laws
of the state, from service on previous grand juries, or from
service on the particular grand jury that returned the indictment
against the accused.
Page 162 U. S. 585
We do not overlook in this connection the fact that the petition
for the removal of the cause into the federal court alleged that
the accused, by reason of the great prejudice against him on
account of his color, could not secure a fair and impartial trial
in the county, and that he prayed an opportunity to subpoena
witnesses to prove that fact. Such evidence, if it had been
introduced, and however cogent, could not, as already shown, have
entitled the accused to the removal sought, for the alleged
existence of race prejudice interfering with a fair trial was not
to be attributed to the constitution and laws of the state. It was
incumbent upon the state court to see to it that the accused had a
fair and impartial trial and to set aside any verdict of guilty
based on prejudice of race.
The petition for removal also proceeds upon on the ground that
the indictment was returned by a grand jury organized under the
Code of Mississippi which went into operation in 1892, after the
date of the alleged murder, when, it is contended, it should have
been organized in the mode required by the Mississippi Code of
1880, in force at the time the offense in question was
committed.
The organization of the grand jury under a statute of the state
(even if that statute was not applicable to offenses committed
before its passage), rather than under a statute that was
applicable, constitutes no ground for the removal of the
prosecution into the federal court, unless the statute whose
provisions were followed either expressly, or by its necessary
operation, denied to the accused some "right secured to him by any
law pr viding for the equal civil rights of citizens of the United
States." It is not every denial by a state enactment of rights
secured by the Constitution or laws of the United States that is
embraced by section 641 of the Revised Statutes. The right of
removal given by that section exists only in the special cases
mentioned in it. Whether a particular statute, which does not
discriminate against a class of citizens in respect of their civil
rights, is applicable to a pending criminal prosecution in a state
court, is a question, in the first instance, for the determination
of that court, and its right and duty to finally determine such a
question cannot be interfered with
Page 162 U. S. 586
by removing the prosecution from the state court, except in
those cases which, by express enactment of Congress, may be removed
for trial into the courts of the United States. If that question
involves rights secured by the Constitution and laws of the United
States, the power of ultimate review is in this Court, whenever
such rights are denied by the judgment of the highest court of the
state in which the decision could be had. As the judges of the
state courts take an oath to support the Constitution of the United
States as well as the laws enacted in pursuance thereof, and as
that Constitution and those laws are of supreme authority, anything
in the Constitution or laws of any state to the contrary
notwithstanding,
"upon the state courts, equally with the courts of the Union,
rests the obligation to guard, enforce, and protect every right
granted or secured by the Constitution of the United States and the
laws made in pursuance thereof, whenever those rights are involved
in any suit or proceeding before them,"
and
"if they fail therein, and withhold or deny rights, privileges,
or immunities secured by the Constitution and laws of the United
States, the party aggrieved may bring the case from the highest
court of the state in which the question could be decided to this
Court for final and conclusive determination."
Robb v. Connolly, 111 U. S. 624,
111 U. S.
637.
But it is said that the statute under which the grand jury was
organized was
ex post facto when applied to the case of
the present defendant, and for that reason the judgment should be
reversed. This question does not depend upon section 641 of the
Revised Statutes, but upon the clause of the Constitution
forbidding a state to pass an
ex post facto law. It is not
clear that the record so presents this point as to entitle us to
consider it under the statutes investing this Court with
jurisdiction to reexamine the final judgments of the highest courts
of the several states. But, as human life is involved, as the
defendant pleaded not guilty, and as the state, by its attorney
general, has discussed the question upon its merits, without
disputing the authority of this Court to pass upon it, we will
assume, and we think it may be properly assumed, that the plea of
not guilty, in connection with the petition for removal,
Page 162 U. S. 587
sufficiently presents the question and shows that the state
court denied to the accused what he specially set up and claimed to
be a right secured to him by the Constitution of the United
States.
By the Constitution of Mississippi of 1890, which was in force
at the time of the commission of the alleged offense, it was
provided:
"No person shall be a grand or petit juror unless a qualified
elector and able to read and write, but the want of any such
qualification in any juror shall not vitiate any indictment or
verdict. The legislature shall provide by law for procuring a list
of persons so qualified and the drawing therefrom of grand and
petit jurors for each term of the circuit court."
Sec. 264. And by the same instrument it was also provided:
"All crimes and misdemeanors and penal actions shall be tried,
prosecuted, and punished as though no change had taken place, until
otherwise provided by law."
Sec. 283. By the Mississippi Code of 1880, in force when the
alleged murder was committed, it was provided that
"all male citizens of the United States and not being under the
age of twenty-one years nor over the age of sixty years, and not
having been convicted of any infamous crime, shall be qualified to
serve as jurors within the county of their residence,"
Sec. 1661, and by section 1664 of the same code, it was provided
that
"the board of supervisors shall at least twenty days before the
term of every circuit court, select twenty persons competent to
serve as jurors in said county, to be taken, as nearly as
conveniently may be, in equal numbers from each supervisor's
district of the county, who shall serve as grand jurors for the
next ensuing term of said court."
The Annotated Code of 1892 went into effect on the first day of
November, 1892, all prior statutes being thereby repealed. Sections
2358, 2361, and 2365 of that Code provide:
"SEC. 2358. The board of supervisors at the first meeting in
each year, or at a subsequent meeting if not done at the first,
shall select and make a list of persons to serve as jurors in the
circuit court for the next two terms to be held more than thirty
days afterwards, and, as a guide in making the list, they shall use
the registration books of voters, and it shall select and
Page 162 U. S. 588
list the names of qualified persons of good intelligence, sound
judgment and fair character, and shall take them, as nearly as it
conveniently can, from the several election districts, in
proportion to the number of the qualified persons in each,
excluding all who have served on the regular panel within two
years, if there be not a deficiency of jurors."
"SEC. 2361. The names of the persons on the jury list shall be
written on separate slips of paper by the clerk of the circuit
court, and put in a box kept for that purpose, marked 'Jury Box,'
which shall be securely locked and kept closed and sealed, except
when opened to draw the jurors."
"SEC. 2365. At each regular term of the circuit court, and at a
special term if necessary, the judge shall draw, in open court,
from the jury box the slips containing the names of fifty jurors to
serve as grand and petit jurors for the first week and thirty to
serve as petit jurors for each subsequent week of the next
succeeding term of the court, and he shall make and carefully
preserve separate lists of the names, and shall not disclose the
name of any juror drawn. The slips containing the names so drawn
shall be placed by the judge in envelopes, a separate one for each
week, and he shall securely seal and deliver them to he clerk of
the court, so marked as to indicate which contains the names of
jurors for the first and each subsequent week. If in drawing it
appears that any juror drawn has died, removed, or ceased to be
qualified or liable to serve as a juror, the judge shall cause the
slip containing the name to be destroyed, the name to be stricken
from the jury list, and he shall draw another name to complete the
required number."
The contention of the accused is that the constitution of the
state (Sec. 283) required that the indictment against him should
have been by a jury of the grand inquest, organized as directed in
the Code of 1880, because that Code was in force at the date of the
murder charged to have been committed, and that the law upon that
subject in the Code of 1892 would be
ex post facto if
applied to his case.
We perceive in these constitutional and statutory provisions
nothing upon which to rest the suggestion that the accused was
tried under a law that was
ex post facto in its
application
Page 162 U. S. 589
to his case. At the time the homicide was committed, no person
was competent to be a grand or petit juror unless he was a
qualified elector, and able to read and write. This requirement was
attended by an injunction that the legislature should provide by
law for procuring a list of persons so qualified, and for drawing
therefrom grand and petit jurors for each term of the circuit
court. Miss.Const. Sec. 264. And, as we have seen, it was further
provided that all crimes and misdemeanors and penal actions should
be tried, prosecuted, and punished as though no change had taken
place until otherwise provided by law. Miss.Const. Sec. 283. It is
clear that the provision in the Constitution of 1890 prescribing
the qualifications of grand and petit jurors became the law of the
state immediately upon the adoption of the constitution, and that
legislation was not necessary to give it effect, and that the
provisions of the Code of 1880 for the conduct of trials were
superseded by those on the same subject in the Code of 1892.
It is equally clear that the provisions of the Code of 1892
regulating the selection of grand and petit jurors were not
ex
post facto as to the case of Gibson, although they were not in
force when the alleged homicide was committed. The requirement of
the Constitution of 1890 that no person should be a grand or petit
juror unless he was a qualified elector and able to read and write
did not prevent the legislature from providing, as was done in the
Code of 1892, that persons selected for jury service should possess
good intelligence, sound judgment, and fair character. Such
regulations are always within the power of a legislature to
establish unless forbidden by the Constitution. They tend to secure
the proper administration of justice, and are in the interest
equally of the public and of persons accused of crime. We do not
perceive that the Code of 1892, in force when the indictment was
found, affected in any degree the substantial rights of those who
had committed crime prior to its going into effect. It did not make
criminal and punishable any act that was innocent when committed,
nor aggravate any crime previously committed, nor inflict a greater
punishment than the law annexed to such crime at the time of its
commission,
Page 162 U. S. 590
nor alter the legal rules of evidence in order to convict the
offender. These are the general tests for determining whether a
statute is applicable to offenses committed prior to its passage.
Calder v. Bull,
3 Dall. 386,
3 U. S. 390;
Cummings v.
Missouri, 4 Wall. 277;
Ex Parte
Garland, 4 Wall. 333;
Kring v. Missouri,
107 U. S. 221,
107 U. S. 228;
Duncan v. State, 152 U. S. 377,
152 U. S. 382.
The provisions in question related simply to procedure. They only
prescribed remedies to be pursued in the administration of the law,
making no change that could materially affect the rights of one
accused of crime theretofore committed. The inhibition upon the
passage of
ex post facto laws does not give a criminal a
right to be tried, in all respects, by the law in force when the
crime charged was committed. The mode of trial is always under
legislative control, subject only to the condition that the
legislature may not, under the guise of establishing modes of
procedure and prescribing remedies, violate the accepted principles
that protect an accused person against
ex post facto
enactments. In
Hopt v. Utah, 110 U.
S. 574,
110 U. S. 589,
a statute that permitted the crime charged to be established by
witnesses who, by the law at the time the offense was committed,
were incompetent to testify in any case whatever was adjudged not
to be
ex post facto within the meaning of the
Constitution, the court observing that such a statute did not
increase the punishment, nor change the ingredients of the offense,
nor the ultimate facts necessary to establish guilt, but related
"to modes of procedure only, in which no one can be said to have a
vested right, and which the state, upon grounds of public policy,
may regulate at pleasure." Hence it has been held that a general
statute giving the government more challenges than it had at the
time of the commission of a particular offense was constitutional.
Walston v. Commonwealth, 16 B.Mon. 15, 39.
It is also assigned for error: 1. That the court ordered the
sheriff "to summon fifty men from the good and lawful body of
Washington county," etc., when he should have been ordered to
summon "persons qualified as jurors," or "said fifty men, jurors as
required by law;" 2. That the order
Page 162 U. S. 591
directed the sheriff
"to summon said fifty men to serve as special jurors in the case
of
State v. John Gibson, when the order should have
directed the sheriff to summon fifty men or persons as jurors, and
to serve as jurors in the case of the
State v. John Gibson
as special jurors."
Without stopping to consider whether the particular order
complained of was in accordance with correct practice, it is only
necessary to say that the objection presented by the assignment of
error raises no question of a federal nature. The conduct of a
criminal trial in a state court cannot be reviewed by this Court
unless the trial is had under some statute repugnant to the
Constitution of the United States or was so conducted as to deprive
the accused of some right or immunity secured to him by that
instrument. Mere error in administering the criminal law of a state
or in the conduct of a criminal trial, no federal right being
invaded or denied, is beyond the revisory power of this Court under
the statutes regulating its jurisdiction.
See Andrews v.
Swartz, 156 U. S. 272,
156 U. S. 276;
Bergemenn v. Backer, 157 U. S. 655,
157 U. S. 659.
Indeed, it would not be competent for Congress to confer such power
upon this or any other court of the United States.
We may observe that the former decisions of this Court, upon
which the counsel for the accused relied with much confidence, do
not go to the extent claimed by them. Underlying all of those
decisions is the principle that the Constitution of the United
States, in its present form, forbids, so far as civil and political
rights are concerned, discrimination by the general government or
by the states against any citizen because of his race. All citizens
are equal before the law. The guaranties of life, liberty, and
property are for all persons within the jurisdiction of the United
States or of any state without discrimination against any because
of their race. Those guaranties, when their violation is properly
presented in the regular course of proceedings, must be enforced in
the courts both of the nation and of the state, without reference
to considerations based upon race. In the administration of
criminal justice, no rule can be applied to one class which is not
applicable to all other classes. The safety of the race the
Page 162 U. S. 592
larger part of which was recently in slavery lies in a rigid
adherence to those principles. Their safety -- indeed, the peace of
the country and the liberties of all -- would be imperiled if the
judicial tribunals of the land permitted any departure from those
principles based upon discrimination against a particular class
because of their race. We recognize the possession of all these
rights by the defendant, but upon a careful consideration of all
the points of which we can take cognizance and which have been so
forcibly presented by his counsel, who are of his race, and giving
him the full benefit of the salutary principles heretofore
announced by this Court in the cases cited in his behalf, we cannot
find from the record before us that his rights, secured by the
supreme law of the land, were violated by the trial court or
disregarded by the highest court of Mississippi. We cannot say that
any error of law of which this Court may take cognizance was
committed by the courts of the state, nor, as matter of law, that
the conviction of the accused of the crime of murder was due to
prejudice of race.
The judgment is therefore
Affirmed.
