Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1881-06-02

had existed for its production, was without
precedent in the court of oyer and terininer
Of the State, and, therefore, in this case, the
motion must be treated as coming too late.
| may add to what ia thus stated, that, so far
as my knowledge extends, the application IL
without precedent in any court. Applications
NAV be heard for a hearing but, until re-
hearing is had, it is not permissible TO call
witnesses for the motion already decided.
Besides this consideration, there was no ALL
davit nor suggestion, by the defendant that
the officers named would support his state
ment. His motion was simply for permission
to make the experiment by calling them to
the stand. The prothonotary and clerk oil
the peace were not shown to have had any
on the subject; and the commits
sioners of the levy court could not have
been required to answer as to
the asserted fact that persons were
excluded by them from the jury list on
account of their race or color III the law OF
Congress prohibiting such exclusion be valid,
the commissioners by such action would have
subjected themselves to penalties And,
whilst it is true that a witness may not claim
exemption from answering questions where |
the answer might subject him to criminal |
prosecution, vet it would be unusual thing |
TO require parties to be summoned upon II |
suggestion that they might be willing to |
criminate themselves and thus furnish sup |
port to motion. The refusal to allow the |
the commissioners, and to enter on an ex- |
ploring expedition with the others named, |
does not appear 10 be a harsh ruling mer1tin6 |
animadyersion, hut Que perfectly Just and
proper. And i'll this connection the statement
OF counsel of the defendant in their printed
brief is not to be overlooked. that 1t was not
i'll his power ''to produce any evidence of the
intent with which the levy court excluded
men of his race and color from the jury lists
other than the presumptlye evidence already
discussed that is, such al arose from the
fact that they had always been excluded from
jury service "a statement which Is equlya-
lent to all admission that the right for which
counsel now contend, had it been allowed to
the defendant would have been of no avail
to him.
But erroneous as deem the ruling OF the
majority of this court iii the weight accorded
to the unsupported ayerments OF the de
PENDANT as to matters not within his personal
knowledge. the meaning given TO the conclnd-
ing clause OF the Fourteenth amendment
presents matter for consideration of far
greater Importance True, the opinion only
reatfirms the doctrine IN the cases from
Virginia decided at the last term. | thought
the doctrine erroneous then and, with great
Difference to my associates, | must say, that
after careful and repeated pornsal of their
opinion. my conviction remains unchanged.
The legislation of Congress, which requires
persons of the colored race to be admitted to
serve ~ jurors i'll state courts, is contained III
the fourth section of the act of March lst
1875. ito protect all citizens i'll their civil aud
legal rights, which declares That no CIT
izen possessing all other qualliicatlons, which
are or may be prescribed by law, shall be dis
qualified for service as grand or petit juror
iii any court Of the United States. or OF any
state, on account of race, color, or previous
condition of servitude and any officer OF
other person charged with any duty in the
selection or summonlng 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 $1,000
Before the adoption of the Thirteenth,
Fourteenth and Fifteenth amendments to the
Constitution, no one would have pretended
that Congress possessed any power to legis-
late with respect to jurors grand or petit
III the state courts. Upon no one subject
would there have been more general con-
| currence of opinion that their selection Was IA
| matter entirely Of state regulation; that II
| was foi the states exclusively to determine
who should be liable to serve AZ jurors III
| their courts, what qualifications they should
| possess, and III what manner they should he
| selected. Indeed il was competent for the
states to do away completely with juriea, and
to require all suits, civil aud criminal. to bc
| determined without their aid.
| OF the three amendments, it Is plain that
| the Thirteenth and Fifteenth have ITO bearing
| upon the selection of jurors. Tie Thirteenth
prohibits slavery and involuntary servitllde.
| except in punishment for crime. within the
| United States, or In any other place subject
to their jurisdiction. 1t makes every one
! Within our broad domain, and wherever our
| jurisdiction goes, on land or sea, freeman,
| with the same right to pursue hls happiness
as all others, and on like conditions. But it
! does not undertake to do anything more II
does not confer any political rights it leaves
the states with all their previous powers IL
determine who shall ill their offices and bt
| entrusted with the administration of then
laws. similar provision was found i'll thu
constitutions OF all Free States, and il wa,
never supposed that it impaired i'll any respect
the sovereign right and power OF thu
people of every state to determine to whom
they would cOutide the trusts Of government
The Fifteenth amendment only prohibit
the denial or abrldgmeut of the elective fran
eniIc to citizens by reason Of their race
color, or previous condition of servitude |
excludes from the power of the state ON
ground Of limitation upon the qualification .
voters it touches upon no other subject.
IL, then, to the Fourteenth amendment tina
the advocates of the Congressional act mus
resort to find authority for its enactment
and to the first section of that amendment
which Is AZ follows "All persons born q
naturalized in the United States, and subieC
to the jurisdiction thereof arc. citizens OF th
| United States. and OF the state wherein the
reside. No state shall make or enforce an
law which shall abridge the privileges or in
| munlties of citizens of the United States, nc
| snail any state deprive any person OF lif
: liberty, or property, without due process
) law, nor deny to any person within its juri
I diction the equal protection of the laws"
+ In the first clause of this section, declariI
who are citizens of the United States, the
\ tnlnlpg "a IN "A
= consideration. The second clause, declariI
L that no state shall make or enforce any la
Z. which will abridge the privileges or ilnlnui
d ties OF citizens OF the United States,
IS limited, according to the decision OF I'll
It court in the Slaughter House cases, to SUI
:, privileges and iinmunlties ar belong to ctize
Il of the United States, rs distinguished fro
II those Of citizens of the state II this co
Y. structlon be Hound-and, restricted AZ 1t il,
ii has not been overruled by those who appro
e " loose and latitudmarian ca
It struction of another clause of the raj
II section ~ It will not be contend
a. that the privilege of persons to
O. as jurors is covered by the nhibitiC
70 But II Il broader construction be given
ID the clause, sucn as was advocated by the d
I'd sentiug judges i'll the Slaughter House cas-
re the Inhibition can nave no application. L
n Constitution, previous to this amendmei
er declared that "the citizens of each sti
shall be entitled to all privileges ii
rs lmmnnities of citizens in the several state
al and II was never supposed or couteudod TIL
IL jury duty or jury service was included amu
II. those privileges aud immuntles Ihe tn
~ clause, which declares that no state shall
to prive any person Of HE, liberty, or prope
Of without due process of law, has no referoi
cc to this subject. That Is u provision found
be all uur state constitutions from
as origin OF the government, and
ny intended to protect life libe
d and property from arbitrary legislati,
lce 1t is upon the last clause Of the section Ii
of the majority Of the court are compelled
on rely to sustain the act of Congress- .
lst state tshall deny to amy person within
CO. Jurisdiction the equal protection of the Law
vet What then Is meant by tins provision seq
uel protection Of the laws All persons wit
ar the jurisdiction of the state, whether ctiz
his or foreigners. male or female, old or yoII
arc embraced III its comprehensive terms.
in to give equal protection to them requires [
100 persOns of the clHsnes to which they sever
,iy belong shall have the privilege or be sub
NY to the duty whichever il may he of aci
nee AZ juror. in the courts in cases affecting Il
tM7 Interests. the mandate of tile Gonst
nrn ton will produce most extraordiG
IN change in the administration
ole the laws of the states it will abolish the
The tillctiuns made i'll the selection Of jurors
.hl tween citizens aud foreigners and betW
"" We those Of our race and those of the Mongol
- Indian and other races. who may be at
IA. time within their jurisdiction. 4 China
tier may insist that people Of his race shal
red summoned as jurors i'll cases affecting hi
are terest-. and that the exclusion Ii deniH
g " him OF the equal protection of the Ii
~ ANY foreigner aojOurning in the cuui
a.. may make similar CLAIM for jurors of
cen nation. 1t is obvious that no such cl
the wunid be Respected, and yet am iluabl
"A Al | tglt i moi he. slIIt