Neal v. Delaware/Opinion of the Court

1. The adoption of the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|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).

ERROR to the Court of Oyer and Terminer of New Castle County, State of Delaware.

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:--

'In 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.

'Indictment 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, counsellors 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 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, 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 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 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 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 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, counsellors      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      labelled 'grand jurors,' another 'petit jurors,' 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.

'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.'

Mr. Charles Devens and Mr. Anthony Higgins for the plaintiff in error.

1. Where, in any prosecution of a man of African race and color, the Constitution or the law of a State excludes from the grand or the petit jury persons because they are of that race and color, the exclusion operates as a denial to him to the equal protection of the laws, and is forbidden by the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]]]]] and the Revised Statutes. The prosecution is thereby brought within the provisions of those statutes which authorize its removal into the Circuit Court of the United States. Strauder v. West Virginia, 100 U.S. 303; Virginia v. Rives, id. 313; Ex parte Virginia, id. 339.

a. The statute and Constitution of Delaware must be taken and construed together in judicially determining what are the qualifications of jurors in that State. It is too plain for argument, that by the express letter of her constitutional and statutory provisions persons of color do not possess the elective franchise, and are excluded from jury service.

b. It is said, however, that the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]]]]], the Civil Rights Act, the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]], and the acts of Congress passed to enforce it, 'repealed' those provisions, or 'amended' them by striking out the word 'white.' The argument of the defendant in error upon this point rests upon the assumed identity of the sovereignty of the United States and the several States, and ignores the fundamental truth that each is a separate sovereign which expresses its will through its own legislative body. Neither the Federal Constitution, nor the laws enacted in pursuance of it, 'repeal' repugnant State Constitutions or laws. Such a repeal can be effected only by the power which created them. Delaware, so far from striking the word 'white' from her Constitution, voted against the adoption of the Fourteenth and the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]s, and she has never altered her Constitution to conform to them. In 1874 the legislature revised her statutes. The act of Feb. 28, 1849, was republished. Had she desired to carry into effect the amendments, she could by a simple provision have conferred on colored persons the right to sit on juries. They now vote in Delaware, but that results from the obedience of the election officers to the mandate of the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]. They are permitted to testify, because the courts acknowledge the validity and paramount authority of the Civil Rights Act and of the amendment upon which it is based. But the legislature has not indicated its acquiescence in the amendments and the laws made to enforce them. It is upon the ground that the impediment to the full protection of the laws exists by force of an express statute that the petition for removal is founded.

It is a conceded fact that a colored man has never been placed on any jury list in Delaware, and it is no answer to his demand for that right to say that he is permitted to testify and vote.

c. This court held that the case of West Virginia v. Strauder should have been removed under sect. 641 of the Revised Statutes, because the statute of that State excluding colored persons from juries was repugnant to the Constitution and laws of the United States. The decision is in point here, and its relevancy is not weakened by the fact that the Constitution and statutes of Delaware were in force before, while the statute of West Virginia was passed after, the adoption of the Fourteenth and [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]s and the Civil Rights Acts, including sect. 641, for the removal of causes. The statute of West Virginia being unconstitutional never was a rule of conduct for her people to any greater extent than, after the adoption of the amendments and acts of Congress, the laws of Delaware in conflict therewith were rules of conduct for her people. The law of Delaware and that of West Virginia were equally subject to the same objection, and the point of time at which either was enacted cannot affect the question.

d. So long as the Constitution or the laws of a State, denying the equal civil rights of all persons citizens of the United States, remain unrepealed by the State itself, they constitute that 'legislative denial of' or 'constitutional or legislative impediment to' such rights of which sect. 641 of the Revised Statutes speaks, and which under it makes an important ground for removal.

Mr. Justice Field, in his separate opinion in Virginia v. Rives, says: 'The denial of rights or the inability to enforce them, to which the section refers, is, in my opinion, such as arises from legislative action of the State. . . . If an executive or judicial officer exercises power with which he is not invested by law, and does unauthorized acts, the State is not responsible for them. The action of the judicial officer in such a case, where the rights of a citizen under the laws of the United States are disregarded, may be reviewed and corrected or reversed by this court; it cannot be imputed to the State, so as to make it evidence that she in her sovereign or legislative capacity denies the rights invaded, or refuses to allow their enforcement.' This doctrine, we submit, fully sustains the position which we assume.

e. It necessarily follows that the right of a prisoner to a removal of the prosecution, when his petition alleges the necessary jurisdictional facts, is not contingent upon the decision which the court of the State may render, but depends on what the State herself has ordained in her Constitution and laws. The jurisdiction of that court is ousted by filing such a petition, and that of the Federal court at once attaches.

2. The Court of Oyer and Terminer should, on the motion of the prisoner, have quashed the indictment, and the panels of grand jurors and petit jurors, on the ground that the Levy Court of New Castle County had excluded from them all persons of African race and color, because of their race and color. The motion should not have been refused because he produced no evidence aliunde in support of the allegations of the petition verified by his own oath.

The matters set forth in his petition were, by consent, to be received with like effect in support of the motion as if they had been incorporated in a separate affidavit. The State law was not only executed according to its letter and its narrow proscribing spirit, but there is a distinct and uncontradicted allegation in the petition that the Levy Court excluded from the jury colored men solely by reason of their race and color.

3. The court should have permitted the prisoner to produce proof in support of the allegations on which the motion to quash was grounded, even after it had been argued and overruled.

Mr. George Gray, Attorney-General of Delaware, contra.

The truth and sufficiency of the matters set forth in the prisoner's petition for removal must be determined by the court of original jurisdiction, subject to the ultimate revisory power of this court. He did not bring his case within the provisions of sect. 641 of the Revised Statutes.

One of the allegations of the petition is that colored persons are excluded from the grand and petit juries by the Constitution and statutes of Delaware. As there is not a line in either which so excludes them, this allegation, if one of fact, is absolutely unfounded, and if one of law, cannot be sustained. By the Constitution adopted in 1831 the right of voting was confined to white male citizens, and the jury law declares that persons qualified to vote shall, with certain specified exceptions, be liable to serve on juries. Counsel insist that as the restriction upon the right of suffrage has not been removed in the mode prescribed by the Constitution of Delaware, the jury law must be construed with exclusive reference to the condition of things which existed at the time of its passage. Their contention is that as in Feb. 28, 1849, persons of African descent were not voters, they were not then, nor are they now, competent jurors. That law is prospective in its effect and scope, and would seem to have been drawn in view of all the possibilities of the future. Its true construction is that persons entitled to vote when a grand or a petit jury is selected are liable to serve upon it. Were colored persons so entitled when the jurors were selected in this case? There can be but one answer to this question. The Thirteenth and [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]s being a part of the supreme law of the land, every provision in a State Constitution in conflict with them is null and void. They changed the status of the slave into that of the freeman, and as effectually secured to the colored citizens of Delaware the right of suffrage as if her Constitution had in express terms conferred it. 'White' as well as 'free,' in sect. 1, art. 4, of the existing Constitution is a dead letter. As they have the right to vote, they are liable to serve as jurors. Such is, in effect, the decision of the learned court below, and the fact that they do vote is admitted by the counsel for the prisoner. Strauder v. West Virginia, upon which they rely, has no application to this case. The State law then under consideration was passed after the adoption of the amendments, and its constitutionality was maintained by the State court.

The right of removal does not depend solely upon the allegations of the petition. If their falsity appears without evidence aliunde, as where they relate to a public law or institution, or where facts of which judicial cognizance is always taken are misstated, then the court must be governed by its own knowledge, and say that the alleged fact is not really a fact. The action below in refusing to order the removal of the cause was obviously proper.

It is maintained on the other side that the court should have quashed the indictment, and the panels of grand and petit jurors, on the ground that the Levy Court had excluded from them all persons of African race and color, because of their race and color; and that the motion should not have been refused because the accused produced no evidence aliunde in support of his petition verified by his oath. To this it will be sufficient to say that the granting of the motion on his unsupported allegation of facts, which could not possibly have been within his knowledge, and which, moreover, imputed to all the persons constituting the Levy Court, the commission of grave offenses against the law, would reverse all the rules of evidence, overturn all orderly procedure in courts of justice, and contradict the settled maxims of ordinary human experience.

The court properly denied his subsequent application to be allowed to produce as witnesses the commissioners and the clerk and the bailiff of the Levy Court to support the allegations upon which the overruled motion was founded. No prayer for a rehearing was presented, nor was it shown that before the motion was decided due diligence had been used to procure their attendance by process, of which he at all times could have availed himself. The court held '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 this State, and therefore, in this case, the motion must be treated as coming too late to be granted.'

If the motion had been for a rehearing, which in form it was not, but that is the most favorable view in which it can be considered, granting it rested in the discretion of the court, and the action upon it is not subject to review in an appellate tribunal. Refusing to grant a rehearing or a motion for a new trial cannot be assigned for error here, even in a case removed from an inferior court of the United States. The re-examination of the judgments of State courts is limited to a particular class of cases, and to the determination of the Federal questions which they involve. This court, in exercising its jurisdiction in such cases, has habitually adhered to the construction given below to a local statute, unless such a question was involved. This is believed to be the first attempt to reverse the judgment of a State court upon a ruling which conforms to its established practice, and has no relation to any principle of Federal jurisprudence.

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 (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, 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 [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|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 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 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, counsellors 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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]s 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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|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 the times, that since the adoption of the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|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 [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|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 [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|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, 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 [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|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 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 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, '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 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.' 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 counter affidavits, 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 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.' 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.