by John Marshall Harlan

“ The only persons excluded by that Constitution from suffrage are those in the military, naval, or marine service of the United States, stationed in Delaware, idiots, insane persons, paupers, and those convicted of felonies.
The statute of Delaware, adopted in 1848, and in force at the trial of this case, provides for an annual selection, by the Levy Court of the county, of persons to serve as grand and petit jurors, and from those so selected the prothonotary and clerk of the peace are required to draw the names of such as shall serve for that year, if summoned. ”

“ Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition ”

“ That colored persons have always been excluded from juries in the courts of Delaware was conceded in argument, and was likewise conceded in the court below. The Chief Justice, however, accompanied that concession with the remark in reference to this case, 'that none but white men were selected is in nowise remarkable in view of the fact-too notorious to be ignored-that the great body of black men residing in this State are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries.' The exceptions, he said, were rare. ”

“ One of the allegations of the petition is that colored persons are excluded from the grand and petit juries by the Constitution and statutes of Delaware. As there is not a line in either which so excludes them, this allegation, if one of fact, is absolutely unfounded, and if one of law, cannot be sustained. By the Constitution adopted in 1831 the right of voting was confined to white male citizens, and the jury law declares that persons qualified to vote shall, with certain specified exceptions, be liable to serve on juries. ”

“ The action of those officers in the premises is to be deemed the act of the State; and the refusal of the State court to redress the wrong by them committed was a denial of a right secured to the prisoner by the Constitution and laws of the United States. Speaking by Mr. Justice Strong, in Ex parte Virginia, we said, and now repeat, that 'a State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. ”

“ Where, therefore, a negro, indicted in one of her courts for a felony, presented a petition alleging that persons of African descent were, by reason of their race and color, excluded by those laws from service on juries, and praying that the prosecution against him be removed to the Circuit Court of the United States,-Held, that the prayer of the petition was properly denied. ”

“ Ever since the last civil rights bill was passed by Congress, negroes have been admitted as witnesses in all cases, civil and criminal, tried in our courts; whereas, before, they could give no evidence in any such cases against a white person except in case of crime, and to prevent a failure of justice, when no white person was present at the time of the transaction competent to give testimony. There is, then, an excision or erasure of the word 'white' in the qualification of voters in this State ”

“ It further provides that all qualified to vote at the general election, being 'sober and judicious persons,' shall be liable to serve as jurors, except public officers of the State or of the United States, counsellors and attorneys at law, ordained ministers of the gospel, officers of colleges, teachers of public schools, practicing physicians and surgeons regularly licensed, cashiers of incorporated banks, and all persons over seventy years of age. ”

“ The plaintiff in error, a citizen of African descent, was, on May 11, 1880, indicted in the Court of General Sessions of the Peace and Jail Delivery of New Castle County, Delaware, for the crime of rape,-an offence punishable, under the laws of that State, with death. ”

“ It is thus seen that the statute, by its reference to the constitutional qualifications of voters, apparently restricts the selection of jurors to white male citizens, being voters, and sober and judicious persons. ”

“ The court overruled the motion, and refused to cause subpoenas to be issued for the witnesses and to permit the defendant to produce them, or to go into the proof of the statements and allegations of his petition and affidavit on which the motion to quash was founded on the ground that full time to produce the witnesses had existed before the motions were heard ”

“ If the motion had been for a rehearing, which in form it was not, but that is the most favorable view in which it can be considered, granting it rested in the discretion of the court, and the action upon it is not subject to review in an appellate tribunal. ”

“ And if the position taken by counsel be correct, so long as the mere language of the Constitution, as originally framed and adopted by a State, is inconsistent with that equality of civil rights secured by the recent amendments to the Federal Constitution, every civil suit or criminal prosecution in that State, against a colored man, would be removable, under sect. ”