The daily gazette., 1880-05-26

than one colored man appears upon a
panel in the United States Courts,
which have the whole State to select
from whereas, in this case the selec-
tion was confined to a simple county.
And in support of the suggestion of
witnesses we have the fact that though
the constitutional amendment and the
legislation appropriate" to carry it
into effect, have been in force, the for
mer for about fifteen years and the lat
ter for over five years, yet no instance
has occurred where parties to pro-
ceeding, aud they are very often COL
ored men. have ever selected a man of
African descent as referee. This
fact is not to be disregarded i'm assign
ing course for the exclusion of ne
groes from juries, if such exclusion
could be shown to have been made.
With our knowledge as men, of the
state of African race in Delaware, and
Of the circumstances just referred to,
it would be wholly unwarranted in us
to infer exclusion for the mere reason
of color, because our juries are in point
of fact composed of white men alone
or to entertain suspicion of such
cause, unless it had better support
wholly unsupported affidavit of the de-
fendant. To impute o the Levy Court
purpose to do otherwise than per-
form their duty by the selection of
''scber and judicious' persons to serve
upon the .julies, as the law requires,
would be wrong on our part upon the
we'll known principle that, in the alb
sence of proof to the contrary public
officer discharglng an official obliga-
tion or function is to be presumed to
have done it faithfully according to
law.
This is a case of challenge to the
whole array or body of the grand and
petit juries in other words, an excep-
tion to the whole of them, and for the
reason that the Levy Court excluded
negroes from them because Of their
color. Now, wherein does such an OBJ.
lection differ, in its quality, from that
of partiality? Exclusion because of
color, selection because of partiality,
are alike matters of fact, to be estab-
lished by some proof at least, and not
by mere suspicion on the belief of
him who mourns to quash an array.
AS a Court would not quash an array
upon an allegation or affidavit of par
tiality without proof of satisfactory
kind to support it, or in want or sus-
picion that the charge was true, so it
ought not to quash jury panels because
colored persons are not upon them
without some sufficient proof that the
names of none of them were put into
the box from which the jury was
drawn because of their color alone.
There is no such proof here and there
fore the motion to quash must be re-
, fused.
The motion to remove this case into
the Circuit Court of the United States
for trial there under the provision of
section GAL of the Revised Statutes of
the United States, is upon the grounds
that the laws of this State forbid the
selection Of colored persons to serve
upon juries, and therefore deny to that
class or prevent them from enforcing
in the judicial tribunals of this State
their rights secured to them 'by any
law providing for the equal civil rights
of citizens of the United States" In
the case ca pGrte. In the matter of
the Commonwealth of VirgIana and j.
ID. Coles, petitioners, the Supreme
Court of the United States decided
that the act of Congress of March LIST,
1875, which enacts that "no citizen
possessing Ill other qualifications
which are or may be presented by law
shall be disqualified from service as
the United States, or of any State, on
account of race, color or previous con-
dition of servitude" etc., is unconsti-
tutional. We must therefore so treat
it, and we SO treat it without the least
demur, because of the original provi-
sion of the consti ution of the United
States in which untrammeled, free
Independent, political societies, ac-
quiesed in such constitution and
the laws of the United States which
shall be made in pursuance thereof
and all treaty shall be the supreme law
of the land, and the judges in every
State shall be boHnd thereby, anything
in the Constitution or laws of any State
to the contrary Notwithstanding" The
Supreme court of the United States,
which was C eated by that Constitution
to determine ultimately all questions
arising under such Constitutional laws,
has decided that the statute quoted was
made in pursuance of Constitutional
power in Congress: and, therefore, what
ever private opinions any of the mem-
bers of this court may hold with respect
to the means taken, or time chosen, TO
affix to such Constitution the amend
mems which sanctions the act Of Con-
gress concerning the selection Of jurors
in the State Courts, we must still treat
such statute as being as much supreme
law, for this case, as if it were part of
the fundamental law of the United
States. There is no room for doubt up
on this question, and discussion of 1t
would, therefore, be not only uDneces-
sary, but waste of labor and time.
The law is valid and we lave nothing
to do with its consequences how ever we
may thiuk them degrading to the good
name and fame, no less than to the citi-
zens of the State. Until it were plain
that Justice in the Courts of State had
been or inevitably wonld be denied to
a citizen because of his meie race, or
complexion, it would seem that the
States of the Union might have been
spared the ortification of q statute to
compel departure from the course of
selecting jurymn to try cases between
man and man. which all usage had here
tofore sanctioned. Would there have
been no risk, to any but blacks, in leav-
ing things as they were.? Could nothing
be trusted, for time at least, until such
| time should prove to be unsafe, to peo-
| IL .r Io bod nayor haau acousad of die