Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1880-03-19
Text of Judge Fields Late Protest in
the Supreme Court.
Concluded from our first page.

pOslUlOn untenaDle. All persons W1tnln the
Jurisdiction Of the State, whether permanent
residents or temporary sojourners, whether
old or young, male or female, are to be equal
ly protected Yet no one will contend that
equal protection to women, to children, to
the aged, to aliens, can only be secured by
allowing persons Of the class to which they
belong to act as jurors in cases affecting their
interests. The equality Of protection in
tended does not require that all persons shall
be permitted to participate in the govern
ment of the State and the administration of
its laws, to hold its offices, or be clothed
with any public trusts. AS already said, the
universally Of the protection assured repels
any such conclusion.
The equality of the protection secured ex-
tends only to civil rights as distinguished
from those which are political, or arise from
the form of the government and its mode Of
administration. And yet the reach and in
fluence of the amendment are immense. 1t
opens the courts of the country 20 every one
on the same terms, for the security Of his
person and property, the prevention and re-
dress of wrongs, and the enforcement of con-
tracts; it assures TO every one the same rules
of evidence and modes Of procedures it al
lows no impediments to the acquisition of
property and the pursuit Of happiness, 10
which all are not subjected; it suffers no
other or greater burdens or charges to be
laid upon one than suchas are equally borne
by others; and in the administration of Grim
inal justice it permits no different or greater
punishment to be imposed upon one than
such as is prescribed to all for like offenses.
1t secures to all persons their civil rights
upon the same terms; but it leaves political
rights, or such as arise from the form of gov
eminent and its administration, as they stood
previous to its adoption. 1t has no more ref
erence to them than it has to social rights
and duties which do not rest upon any pos
tive law, though they are more potential in
controlling the intercourse Of individuals.
Much confusion has arisen in the minds of
persons in the consideration of questions
growing out of these amendments, from a
failure to distinguish between the civil and
the political rights of citizens. Civil rights
are absolute and personal and can always be
enforced. Political rights, on the other hand,
are conditioned and dependent upon the dis
erection of the elective or appointing power,
whether that be the people acting through
the ballot, or one of the departments Of their
government. The civil rights of the indi-
vidual are never to be denied. The political
rights which he may enjoy, such as holding
office and discharging public trust, are
qualified because their possession depends
on the fitness of the applicant TO be adjudged
by others than himself whom society has
clothed with the elective authority The
Thirteenth and Fourteenth amendments
were designed to secure the civil rights of
all persons, of every race, color and condi
ton, but they left to the States to determine
to whom the possession of political power
should be entrusted. This is manifest from
the fact that when it was desired to confer
political power upon the newly made citi-
vap pf tbp States n = Hnpp nv ipbihitinCr
the denial to them of the suffrage, on ac-
count Of race, color or previous condition of
serVitude, new amendment was required.
The doctrine of the District judge, for
which the counsel contend, would lead to
some singular results. IT, when a colored
person is accused of criminal ohense, the
presence of persons of his race on the jury
by which he is to be tried is essential to Sc
cure to him the equal protection OF the laws,
il would seem that the presence Of such per-
sons on the bench would be equally essen
tial, if the court should consist of more than
one Judge, as in many cases it may and if
it should consist of single judge, that such
protection would be impossible. A similar
objection might be raised to the composition
of any appellate court to which the case,
after verdict, might be carried.
The position that in cases where the rights
of colored persons are concerned, justice
will not be done to them unless they have
mixed jury, is founded on the notion that
in such cases white persons will not be fair
and honest jurors. If this position be cor
rect there ought not to be any white persons
on the jury where the interests of colored
persons only are involved. That jury would
not be an honest or fair one, (which any of
its members should be governed in his judg-
ment by other considerations than the law
and the evidence, and that decision would
hardly be considered just which should be
reached by a sort ofcompromise,i in which the
prejudices ofOne race were set off against the
prejudices of the other. To be consistent,
those who hold this notion should contend
that in cases affecting members of the col
ored race only the juries should be com
posed entirely of colored persons, and that
the presiding judge should be of the same
race. To this result the doctrine asserted
by the District court logically leads The
jury de medietdte iingaG, anciently allowed in
England for the trial of an alien, was ex-
pressly authorized by statue, probably as
much because of the difference of language
and customs between him and Englishmen,
and the greater probability of his defense
being more fully understood, rs because it
would be heard in more friendly spirit by
jurors Of his own country and language.
If these views as to the purport and mean
ing of the Thirteenth and Fourteenth amend
ments to the Constitution be correct, there
is no warrant for the act of Congress under
which the indictment in this case was found
and the arrest and Imprisonment of the petit
toner was unlawful, and his release should
be ordered.
The case is one which should not be delay
ed for the slow process of Il trial in the court
below, and subsequent appeal, in case of
conviction, to this court TO be heard years
hence. The commonwealth of Virginia has
represented to us that the services of her
judicial officer are needed in her courts for
the administration of justice between her
citizens, and she asks that the highest tribu-
nal of the Union release him from his UNI
lawful arrest, in order that he may perform
the duties of his office Those who regard
the independence of the States in all their
reserved powers-and this includes the in
depence of their legislative, judicial and ex-
ecutive departments-as essential to the sue
cessiul maintenance of our form of govern
ment, cannot fail to view with the gravest
apprehension for the future the indictment
in "A court of the United States ol judicial
officer of Il State for the manner in which
he has discharged his duties under her laws,
and of which she makes no complaint The
proceeding is a gross olfcnse TO the State; it
is an attack upon her sovereignty in mat
ters over which she has never surrendered
her jurisdiction The doctrine which sus-
tains it, carried TO its logical results, would
degrade and sink her 10 the level of mere
local municipal corporation, for if Congress
can punish an officer of u State for the man
ner in which he discharges his duties under
/ her laws, it can fix the nature and extent of
the punishment; it may imprison for life or
] punish bV his removal from Office A nd IL
| 1t can make the exclusion Of persons from
4 jury service on account of race or color u
/ criminal oifense, it can make their exclusion
! from Office on that account also criminal I;
and, adopting the doctrine of the District
! judge in this case, the failure 20 appoint
/ them To Office will be presumptiye evidence
Of their exclusion on that ground. TO such
a result are we logically led. The legis-
I lation of Congress is founded and sane
| toned by this court, as it seems 10 me, upon
/ a theory as 30 what constitutes the equal
L -