power to annul or evade it. The Constitutional Amendment was ordained for a purpose. It was to secure equal rights to all persons, and to insure to all persons the enjoyment of such rights. Power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons; not upon the abstract thing denominated a state, but upon the persons who are the agents of the state in the denial of the rights which were intended to be secured. Such is the act of March 1, 1875, and is fully authorized by the Constitution. The act of the defendant, in selecting jurors, was a ministerial, not a judicial act; and being charged with the performance of that duty, although he derived no authority from the state, he was bound, in the discharge of his duties, to obey the Federal Constitution and the laws passed in pursuance thereof. One great purpose of the Fourteenth Amendment was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states. It was intended to take away all possibility of oppression by law because of race or color. It is a limitation of the power of the state, and an enlargement of the power of Congress. It is said the selection of jurors for her courts and the administration of her laws belongs to each state; that they are her rights. This is true in the general sense. But in exercising her rights, a state cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the General Government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the General Government involves a corresponding diminution of the governmental powers of the states. It is carved out of them. Ex parte Commonwealth of Virginia and Coles, 100 U. S. 339.

§ 331. Law excluding jurors on account of race or color. The alleged exclusion from the grand jury that found, and from the petit jury that was summoned to try this indictment, of persons of the African race because of their race, did not result from the Constitution or laws of the state as expounded by its highest judicial tribunal; and consequently, the accused was not entitled to the removal of the prosecution into the Circuit Court. Such exclusion however if made by the jury commissioners without authority derived from the constitution and laws of the state, was a violation of the prisoner's rights under the Constitution and laws of the United States which the trial court was bound to redress; and the remedy for any failure in that respect is ultimately in the Supreme Court upon writ of error to the state court.

The Fourteenth Amendment was designed primarily to secure to the colored race, thereby invested with the rights, privileges and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons; that, while a state, consistently with the purposes for which that amendment was adopted, may establish qualifications for jurors, a denial to citizens of the African race, because of their color, of the right or privilege accorded to white persons, of participating as jurors in the administration of justice, is a discrimination against the former inconsistent with the amendment, and within the power of Congress by appropriate legislation to prevent; that to compel a colored man to submit to a trial before a jury drawn from a panel from which was excluded, because of their color, every man of his race, however well qualified by education and character to discharge the functions of jurors, was a denial of the equal protection of the laws. Neal v. Delaware, 103 U. S. 370.

§ 332. Punishment of offense. The section of the code of Alabama punishing adultery or fornication committed by a white person and a negro with each other more

severely than the same offense committed between persons of the same race and color as punished by that code, does not make a discrimination against the colored person in the punishment designated, which conflicts with the clause of the Fourteenth Amendment prohibiting a state from denying to any person within its jurisdiction the equal protection of the laws. The statute applies the same punishment to both offenders, the white and the black. The discrimination in the punishment is directed against the offense designated, and not against the person of any particular color or race. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others, to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. There is in this law no discrimination against either race. Pace v. Alabama, 106

U. S. 583.

§ 333. Setting aside panel of jurors-Discriminating against citizens of African descent. It was not error for the state court to overrule a motion to set aside a panel of petit jurors made on the ground that only white citizens were selected and summoned, when it was not distinctly shown that the officers, who selected the petit jurors, excluded qualified citizens of African descent from the panel because of their race or color. A grand jury selected and formed upon the basis of excluding therefrom, because of their color, all citizens of the African race, is prohibited by the Fourteenth Amendment, and the laws passed by Congress for the enforcement of its provisions. Where the statutes of Kentucky excluded citizens of African descent from service on grand and petit juries because of their race, it will be presumed that prior to the time they were adjudged invalid, they were followed by jury commissioners. Where citizens of African descent have been wrongfully excluded from a

grand jury, an indictment found by it should be set aside. Bush v. Kentucky, 107 U. S. 110.

§ 334. State statute requiring separate accommodations for white and colored persons in railway coaches. A state statute providing for separate railway carriages for the white and colored races by railway companies carrying passengers in their coaches in the state, and the assignment of passengers to the coaches according to their race by conductors does not deprive a colored person of any rights under the Fourteenth Amendment of the Federal Constitution. The enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment. So far as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with respect to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, it can not be said that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the Fourteenth Amendment than the act of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. The underlying fallacy of the plaintiff's argument consists in the assumption that the enforced separation of the two races stamps the colored race with the badge of inferiority. If this be so, it is

not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument also assumes that social prejudice may be overcome by legislation, and that equal rights can not be secured to the negro except by an enforced commingling of the two races. The Supreme Court refused to accept this proposition, and declared, that if the two races are to meet on terms of social equality, it must be the result of natural affinity, a mutual appreciation of each other's merits and a voluntary consent of individuals. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. Plessy v. Ferguson, 163 U. S. 537.

§ 335. Discrimination against colored children. A decision by a state court denying an injunction against the maintenance, by a board of education, of a high school for white children, while failing to maintain one for colored children also, for the reason that the funds were not sufficient to maintain it in addition to needed primary schools for colored children, does not constitute a denial of the equal protection of the law or equal privileges of citizens of the United States. The relief asked for was an injunction that would either impair the efficiency of the high school provided for the white children or compel the board to close it. Such action would not give to colored children additional opportunities for the education furnished in high schools. The board had before it the question whether it should maintain a high school for about 60 colored children, or withhold the benefit of education in primary schools from 300 children of the same The evidence in the record does not permit the

race.