of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. But as it is a state that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of state oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment." In conformity with this interpretation the earlier cases brought to the Supreme Court involving this particular clause in the amendment related to the colored race, and to discriminations against persons of that race, respecting their right to act as jurors, and their right to be tried by juries composed in part of persons of the same race. These cases were followed by others which passed upon state statutes alleged to discriminate against the negro.

§ 328. Denial to colored persons of the right to act as jurors. The statute of West Virginia, which, in effect, singles out and denies to colored citizens the right and privilege of participating in the administration of the law, as jurors, because of their color, though qualified in all other respects, is, practically, a brand upon them affixed by the law, and is a discrimination against that race forbidden by the Fourteenth Amendment. It is a denial of the equal protection of the laws to the race thus excluded since the construction of juries is a very essential part of the protection which the trial by jury is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose

rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds. Where, as here, the state statute secures to every white man the right of trial by jury selected from and without discrimination against his race, and at the same time permits or requires such discrimination against the colored man because of his race, the latter is not equally protected by law with the former. The words of the amendment, although prohibitory, contain a necessary implication of a positive immunity, or right, most valuable to the colored race-the right to exemption from unfriendly legislation against them distinctively as colored-exemption from discrimination, imposed by public authority, implying legal inferiority in civil society, lessening the security of their rights, and which are steps towards reducing them to the condition of a subject race. Strauder v. West Virginia, 100 U. S. 303.

§ 329. Equal protection of laws to colored race—Right to mixed juries. Section 641 of the Revised Statutes, which provides for the removal into the Federal Court of any civil suit or prosecution "commenced in any state. court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in any part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States," etc., examined in connection with sections 1977 and 1978, and the Court held, that the object of these statutes, as of the Constitution which authorized them, was to place the colored race, in respect to civil rights, upon a level with whites. They made the rights and responsibilities, civil and criminal, of the two races exactly the same. The prohibitions of the Fourteenth Amendment have reference to state action exclusively, and not to any action of private individuals. It is the state which is prohibited from denying to any person within its jurisdiction, the equal protection of the laws

and, consequently, the statutes partially enumerating what civil rights colored men shall enjoy equally with white persons, founded as they are upon the amendment, are intended for protection against state infringement of these rights. Section 641 was also intended for their protection against state action, and against that alone. A state may act through different agencies, either by its legislative, its executive or its judicial authorities, and prohibitions of the amendment extend to all actions of the state denying equal protection of the laws, whether it be action by one of these agencies or by another. Congress, by virtue of the Fifth section of the Fourteenth Amendment, may enforce the prohibitions whenever they are disregarded by either the legislative, the executive, or the judicial department of the state. The mode of enforcement is left to its discretion. It may secure the right, that is, enforce its recognition, by removing the case from a state court, in which it is denied, into a Federal court, where it will be acknowledged. But the Fourteenth Amendment is broader than the statute which authorizes the removal. Section 641 does not apply to all cases in which equal protection of the laws may be denied to a defendant. The removal authorized by the statute is a removal before trial or final hearing. But the violation of the constitutional provision, when made by the judicial action of a state, may be, and generally will be, after the trial or final hearing has commenced. It is during the trial or final hearing the defendant is denied equality of legal protection, and not until then. Nor can he know until then that the equal protection of the laws will not be extended to him. Certainly not until then can he affirm that it has been denied. To such a case, that is, to judicial infractions of the Constitutional Amendment after the trial has commenced, section 641 has no applicability. It was not intended to reach such cases. They were left to the revisory power of the Supreme Court of the United States. Therefore, the denial or inability to enforce in the judicial tribunals of a state, rights secured

to a defendant by any law providing for the equal civil rights of all persons, citizens of the United States, of which section 641 speaks, is primarily, if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the constitution or laws of the state, rather than a denial made manifest at the trial of the case. In other words, the statute has reference to a legislative denial or an inability resulting from it. By express requirement of the statute, the party must set forth, under oath, the facts upon which he bases his claim to have his case removed, not merely his belief that he cannot enforce his rights at a subsequent stage of the proceedings. But, in the absence of constitutional or legislative impediment, he cannot swear before his case comes to trial, that his enjoyment of his civil rights is denied to him.

The constitution and laws of Virginia do not exclude colored persons from service on juries. The petition for removal did not present a case for removal under the 641st section. The defendant moved in the state court that the venire be so modified that one-third or some portion of the jury should be composed of his own race. The denial of this motion was not a denial of a right secured to him by any law providing for the equal civil rights of citizens of the United States, or by any statute, or by the Fourteenth Amendment. A mixed jury in a particular case is not essential to the equal protection of the laws. It is a right to which any colored man is entitled, that, in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them, because of his color. But that is a different thing from that which was claimed, as of right, and denied in the state court, viz: a right to have the jury composed in part of colored men. When a subordinate officer of the state, in violation of state law, undertakes to deprive an accused person of a right which the statute law accords to him, as in the case at bar, it can hardly be said that he is denied, or cannot enforce, "in

the judicial tribunals of the state," the rights which belong to him. In such a case it ought to be presumed the court will redress the wrong. If the accused is deprived of the right, the final and practical denial will be in the judicial tribunal which tries the case, after the trial has commenced. If, as in this case, the subordinate officer whose duty it is to select jurors fails to discharge that duty in the true spirit of the law; if he excludes all colored men solely because they are colored; or if the sheriff to whom a venire is given, composed of both white and colored citizens, neglects to summon the colored jurors only because they are colored; or if a clerk whose duty it is to take the twelve names from the box rejects all the colored jurors for the same reason, it can with no propriety be said the defendant's right is denied by the state and cannot be enforced in the judicial tribunals. The court will correct the wrong, will quash the indictment or the panel, or, if not, the error will be corrected in a superior court. Such cases are not within the provisions of section 641. Denials of equal rights in the action of the judicial tribunals of the state are left to the revisory powers of the Supreme Court of the United States. Ex parte Commonwealth of Virginia, 100 U. S. 313.

§ 330. Exclusion of juror on account of color. The inhibition contained in the Fourteenth Amendment means that no agency of the state, nor of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. 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; and as he acts in the name and for the state, and is clothed with the state's power, his act is that of the state. Otherwise the constitutional inhibition has no meaning and the state has clothed one of its agents with