# Ex parte Virginia

Supreme Court of the United States
100 U.S. 339
EX PARTE VIRGINIA
Petition for Writ of Habeas Corpus.
Argued: Oct. 14-16, 1879 --- Decided: Mar. 1, 1880

## Dissenting Opinion

    Field
1. A., a judge of a county court in Virginia, charged by the law of that State with the selection of jurors to serve for the year 1878 in the circuit and county courts of his county, was, in the District Court of the United States for the Western District of Virginia, indicted for excluding and failing to select as grand jurors and petit jurors certain citizens of his county, of African race and black color, who, possessing all other qualifications prescribed by law, were excluded from the jury lists made out by him as such officer, on account of their race, color, and previous condition of servitude, and for no other reason, against the peace, &c., of the United States, and against the form of the statute in such case made and provided. Being in custody under that indictment, he presented to this court his petition for a writ of habeas corpus and a writ of certiorari to bring up the record of the inferior court, that he might be discharged, averring that the finding of the indictment, and his arrest and imprisonment thereunder, were unwarranted by the Constitution of the United States, in violation of his rights and the rights of the State of Virginia, whose judicial officer he is, and that the inferior court had no jurisdiction to proceed against him. A similar petition was presented by Virginia. Held, that while a writ of habeas corpus cannot generally be made to subserve the purposes of a writ of error, yet when a prisoner is held without any lawful authority, and by an order which an inferior court of the United States had no jurisdiction to make, this court will, in favor of liberty, grant the writ, not to review the whole case, but to examine the authority of the court below to act at all.
2. The section of the act entitled "An Act to protect all citizens in their civil and legal rights," approved March 1, 1875 (18 Stat., part 3, 336), which enacts that "no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified from service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person, charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than $5,000," examined, and held to be authorized by the Thirteenth and Fourteenth Amendments of the Constitution.
3. The inhibition contained in the Fourteenth Amendment means that no agency of the State, or of the officers or agents by whom her powers are exerted, shall deny to any person within her jurisdiction the equal protection of the laws. Whoever by virtue of his public position under a State government deprives another of life, liberty, or property, without due process of law, or denies or takes away the equal protection of the laws, violates that inhibition; and as he acts in the name of and for the State, and is clothed with her power, his act is her act. Otherwise, the inhibition has no meaning, and the State has clothed one of her agents with power to annul or evade it.
4. That amendment was ordained to secure equal rights to all persons. To render its purpose effectual, Congress is vested with power to enforce [p340] its provisions by appropriate legislation. Such legislation must act, not upon the abstract thing denominated a State, but upon the persons who are its agents in the denial of the rights which were intended to be secured. Such is said act of March 1, 1875, and it is fully authorized by the Constitution.
5. The act of A. in selecting jurors was ministerial, not judicial, and, although he derived his authority from the State, he was bound, in the discharge of that duty, to obey the Federal Constitution and the laws passed in pursuance thereof.
Petition for a writ of habeas corpus.
The facts are stated in the opinion of the court.
Mr. James G. Field, Attorney-General of Virginia, and Mr. William J. Robertson for the petitioner.
Mr. Attorney-General Devens and Mr. Assistant Attorney-General Smith, contra.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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