Neal v. Delaware

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,’ &e.

In Strauder v. West Virginia (100 U. S. 303), Virginia v. Rives (id. 313), and Ex parte Virginia (id. 339), that section was the subject of careful examination, in connection with sect, 1977, which declares that “ all persons within the jurisdiction of the United States shall have the same right, in every State and Territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white persons, and shall be subject to ’like pains, *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 “ no 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 legis lation, 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 3 and ti.at 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 tho white race, because of their color.

But it was also ruled, in the cases cited, that the constitu tional amendment was broader than the provisions of sect. 64) 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 *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 c5f 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 tipae 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 *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 b.e liable to serve as jurors, except public officers of the- State or of the United States, counsellors and attorneys at law, ordained ministers of the gospel, officers of colleges, teachers of public schools, practising 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 ©f 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 col-' ored 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 *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 *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 ánd 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 bur 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 *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 tlm 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 bq 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 mat *392 ter, 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 *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 theii- face 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, accpmpanied 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 tho

*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 ¡Dart, 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, “ The court will correct the wrong, will quash the indictment, or the panel; or, if not, the error will be corrected in a superior court,” 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 *395 upon which the motions to quash were rested. It was in the discretion of the court to hear the motions upon affidavit. No counter affidavits were filed in behalf of the prosecution. Nor does it appear that, on the hearing of the motions, the State controverted, in any form, the allegation, made with the utmost directness, that her officers had purposely excluded from the juries, because of their color, citizens of the African race, qualified to perform jury service. Nor does the bill of exceptions disclose any suggestion or intimation, by the State, of any objection to the prisoner’s 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 treater] as coming too late to be granted.”

*396 It may be argued that tbe ruling of tbe court whereby tbe prisoner was denied the privilege, after tbe motions to quash were overruled, and before tbe trial commenced, of making further proof in support of tbe charge that both grand and petit juries bad been selected in violation of tbe Constitution- and laws of tbe United States, is not tbe subject of review in this court. Without discussing that proposition, we may remark, with entire respect for tbe court below, that tbe circumstances, in our judgment, warranted more indulgence, in tbe matter of time, than was granted to a prisoner whose life was at stake, and who was too poor to employ counsel of. bis own seléetion. If it be suggested that tbe 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 tbe clerk and bailiff of tbe Levy Court. Tbe clerk of the Court of Oyer and Terminer was himself, as we are advised by tbe opinion of tbe Chief Justice, the clerk of tbe Levy Court, attending its sessions and assisting in tbe transaction of its business. That officer, we may presume, was present in court ■when tbe application to examine him as a witness was made. He and tbe bailiff were in a position, perhaps, to clearly sustain or clearly disprove tbe allegation that tbe grand and petit juries were organized upon tbe principle of excluding therefrom all colored persons, because of their race, — a charge involving the fairness and integrity of tbe whole proceeding against tbe prisoner.

But passing by this ruling of the court below as insufficient, in itself, to authorize a reversal of tbe judgment, we are of opinion that tbe motions to quash, sustained by tbe affidavit of tbe accused, — which appears to have been filed in support of tbe motions, without objection-to its competency as evidence, and was uncofitradicted by counter affidavits, or even by a formal denial of tbe grounds assigned, — should have been sustained. If, under tbe practice which obtains in tbe courts of tbe State, tbe affidavit of the piisoner 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 tbe proper time. No such objection appears to have been made by its attorney-general. On tbe contrary, the agreement *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 oii 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 Státes. 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 me^i 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, bj 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, liis act is that of the State. This must be, or the constitutional prohibition has no meaning.”

*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

iSo ordered.

Mr. Chief Justice Waite and Mr. Justice Field dissented.