The daily gazette., 1880-05-21

moval might be reasonable. But in
this case it is Objectionable because
certain forms are to be observed in the
mode of procedure, while, in his opin-
ion, by no rule of construction or inn
plication could the law be infer
red to provide punishment for crimes.
MIR. Higgins proceeded to argue that
while the laws of Delaware, strictly
constructed, did not exclude colored
men from juries, yet they were exclud-
ed by the action of the men entrusted
with the duty of drawing jurors, in
the manner referred to in the Supreme
Court opinion in the Reynolds case
above quoted. He alluded to the mode
of drawing juries in this State, and
claimed that if the case was not re-
moved, the Court should protect the
prisoner in the matter of proper repre-
sentation of his color on the jury. Mr..
Higgins argument was clear and con-
else, filled with cogent reasoning, and
was much more impressive in its con-
victions and conclusions than could be
made apparent by any sort Of synop-
sis.
FOR THE sTATE-ATToRNEYG GENERAL
GRAY's BRILLIANT RsBUTTAL.
Attorney-GeDeral Gray said he real zed
the tact that TINS case was unprecedented
in the Courts of this s ate. The argu-
ment was as to whether or not the ale
CATION of the petition came within the
scope of the law, as interpreted by the
Supreme Court. 1t was the first time in
tina history of our State that a man ac-
cused of crime had attempted to asperse
The fairness of the tribunal selected to
try him. The question was serious and
far reaching, and would work complete
revolution in our criminal jurisdiction,
and in the relations supposed to exist
between the State and Federal Govern
ments.
The facts set forth in the petition, said
Mr.. Gray, are something your Honors
must take notice OF. He asserts that by
reason of the exclusion OF colored men
from the jnres he has been denied the
free and equal protection of the law. No
more grave or serious allegation could
he made. On these points and in the
light of recent decisions of the Supreme
| Court, this Court Is required to say
whether he has stated facts which are
primd tdcie, true, or which must be
taken primd .facie to be true. The first
allegation is that coioI ed men were ex
cllIded from the ] Try, and If this be true
then, under Section Gal of the Revised
Statutes, this case will have TO be remov-
ed to the u. 5. Circuit Court. The Con-
stitlltion and laws OF the Unitei States
are as much part of our State jurisdic-
tion and State polity as the constitution
and laws Of the State of Delaware, or
any part thereof.
Mr.. Gray then read Section Gal, which
provides for cessation of all pro1eed-
ings in State Court, where the person
OH trial is denied any Of the rights guar
anteed by the fourteenth an fifteenth
amendments to the Constitution, and
said: The question is whether this pc.
| tiiion states such case as will come un-
| Ger the purview Of this Section. The
| Virginia case mentioned In tie Supreme
| Court decision we accept as entirely
governing aud 10 every way conformable
% this case. We hold from this decision
| if the petition should state facts which
/ bring this case within lhe meaning OF
Section Gal, that this is the end OF
the matter as far as this Court is con-
cerned.
But this Court must scrutinize this pc
tition, and see if it supports the case.
| The allegations of fact In this petition
are allegations of what the law of this
state is in regard to the selection of
Jurors, and this point your Honors must
Judge. 1t is an allegation that by the
laws of this State colored men are
ercluded from juries, and if the allega-
tion prevails, then any colored prisoner
in the box, can by making this assertion,
even though it be lie, bring himself
within the provisions of this Section.
| The petition might as well say the pris-
oner could no, have fair aud impartial
trial because there are no colored men
ON the bench as because there are none
on the jury.
This brings up the question, do the
constitution aud laws of Delaware er-
cludc colored men from juries? II is
| Judge Strong's conclusion that the stat
| utes of the United States are not as
bro id as the constitutional amendments
and that Congress does not protect the
civil rights of colored IN m, excepting
where they are denied by the judicial
tribunals of the States, and it must be a
riqht deniel by the States, other@ise it
cannot be proved to be just cause.
This decision applies to Section 641
only so far as it is applicable to such
rights are denied By the State and NOT
by an improper execution OF the laws
by the officers of the State.
(The Chief Justice-The ground for
tbe motion for removal is that there is
an impediment on the part of the
State for the motion to quash the
panel. that the officers of the State inn
properly exercised their judicial func-
tions,)
MIR. Gray next read from the Re-
yised Code the qualifications of Jurors
in this Sta which the following
words 'All persons qualified to vote
at the general election shall be liable
to serve as jurors )" with the usual
exception Of public officers, lawyers,
&c. but not colored menu lie then
said Here there is no distinct ion as to
color. It makes the qualifications OF
jurors the same as the qualifications OF
electors. 1t was passed Tin 1S40) be-
fore the adoption ofthe fourteenth and
filtee. til amendments to the constltu-
tion. and is so apt, so elastic and ac-
commodating in its phraseology that
# did not need any amendment when
the new dispensation came about. II
accommodates itself to the state of af
Fairs now as we'll as then. In 184t
colored men were not qualified as cleo
1 l. lcG