without that due process of law required by the Constitution;" and it was held that the trial of challenges to jurors in a trial for murder should not have taken place in the absence of the prisoner.

256 q. In Head v. Amoskeag Manufacturing Co.1 a statute of New Hampshire authorized any person to erect and maintain on his own land a water-mill and a mill-dam upon and across any stream not navigable, with a right thereby to flow the land of other parties above, upon paying them such damages as might be assessed by a jury in a judicial proceeding prosecuted for that purpose. This statute was held, in a very elaborate opinion pronounced by Mr. Justice Gray, not to be unconstitutional, and as not depriving the landowners of their property without due process of law.

In another case,2 a statute of New Jersey of 1852 had made water rents a lien on land prior to the lien of mortgages, or other like incumbrances. And it was held that the act was constitutional and gave a valid lien, although the water was not introduced into the premises until after the mortgages relied upon had been made. It was objected that the act was unconstitutional as tending to deprive the mortgagee of his property without due process of law, and Mr. Justice Bradley, in his opinion, said: "The ground on which the decision below was placed was, that the laws [Acts of N. J. Legislature] having made the water rents a charge on the land, with a lien prior to all other incumbrances, in the same manner as taxes and assessments, the complainant took its mortgages subject to this condition, whether the water was introduced on to the lot mortgaged before or after the giving of the mortgage; and hence the complainant had no ground of complaint that its property was taken without due process of law. We do not well see how this position can be successfully controverted."

In a still later case, it was declared, after an elaborate ci

1 113 U. S. 9. ED.

? Provident Inst. for Savings v. Mayor & Aldermen of Jersey City, 113 U. S. 506. ED.

tation of New Jersey cases, that the statute of New Jersey of March 8, 1871, providing for the drainage of any tract of low or marshy land within the state, upon proceedings instituted by at least five owners of separate lots of land included in the tract, and not objected to by the owners of the greater part of the tract, and for the assessment by commissioners, after notice and hearing, of the expenses upon all the owners, does not deprive them of their property without due process of law, nor deny to them the equal protection of the laws, within the meaning of the fourteenth amendment.

Denying the Equal Protection of the Laws.

§ 256 r. Separate Schools. In analogy to the doctrine of the Slaughter-House Cases, it was held in People v. Gallagher, 93 N. Y. 438, after a very elaborate examination, that a law of New York was not unconstitutional, which provided separate schools for the colored race, and prohibited their attendance at schools for white children. And the same has been held elsewhere.1 But it is a violation of the fourteenth amendment to provide by law that white children should be entitled to all the benefits of schools sustained by the taxes from white population, and that colored children should be admitted only to such schools as could be supported by the tax from colored people. The colored race are entitled to a fair share of all the school money, however derived.2 Carriers may lawfully assign different cabins for white and colored females, provided only they do so in good faith, and both are equal in quality and convenience. And states may pass laws prohibiting the intermarriage of white and colored persons, without violating the fourteenth amendment of the Constitution or of the U. S. Rev. Sts. § 1977.4

1 See State v. McCann, 21 Ohio St. 210; Cory v. Carter, 48 Ind. 328; Bertonneau v. Directors of City Schools, 3 Woods, 177. ED.

2 Claybrook v. City of Owensboro, 16 Fed. Rep. 297 (1885). See

23 Fed. Rep. 634 (1884); Ward v. Flood, 48 Cal. 51. ED.

8 The Sue, 22 Fed. Rep. 843 (1885). Ed.

4 Ex parte Kinney, 3 Hughes, 9; Ex parte Hobbs, 1 Woods, 537; Ex parte Francois, 3 Woods, 367. ED.

§ 256 s. Right of Suffrage.- United States v. Cruikshank1 was an indictment for conspiring together to prevent certain colored men from exercising their rights as citizens, i. e. that of voting. Waite, C. J., again gave the opinion, to the effect that we have a government of the United States and also of each of the several states. Each government has citizens of its own. The same person may be a citizen of each. Slaughter-House Cases, 16 Wall. 74. Then followed some general remarks as to the nature of citizenship; of governments; of the necessity for a national government; of the nature of it; how it and the state governments exist together. It was asserted that the powers of the national government are entirely delegated powers; and that those not delegated are reserved to the states. He then continued as follows:

"The fourteenth amendment prohibits a state from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states; and it still remains. there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guarantee."

"The Constitution of the United States has not conferred the right of suffrage upon any one, and the United States have no voters of their own creation in the states, as was decided in Minor v. Happersett, 21 Wall. 178.

"From the principles of U. S. v. Reese, 92 U. S. 214, it appears that the right of suffrage is not a necessary attri1 92 U. S. 542. And see United States v. Washington, 4 Woods, 349, 20 Fed. Rep. 630; United States v. Harris, 106 U. S. 637. ED.

bute of national citizenship; but that exemption from discrimination in the exercise of that right on account of race, etc., is: The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States; but the last has been."

§ 256 t. Trial by Jury. In Strauder v. West Virginia, Strauder, a colored man, was tried for murder in the state court of Tennessee and convicted. A writ of error was brought on the ground that he was denied rights secured to him by the fourteenth amendment.

The questions underlying the assignments of errors were "first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and empanelled without discrimination against his race or color; and, second, if he has such a right, and is denied its enjoyment by the state in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?"

The fourteenth amendment "is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the rights that the superior race enjoy." Slaughter-House Cases, 16 Wall. 74.

The fourteenth amendment was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the states."

The West Virginia statute respecting juries discriminates against the colored race.

66

The fourteenth amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its

1 100 U. S. 303. And see Green v. The State, 73 Ala. 35; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110. ED.

language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any state action that denies this immunity to a colored man is in conflict with the Constitution."

The power of Congress to enforce the fourteenth amendment authorized the enactment of § 641 Rev. Sts.1

§ 256 u. Exclusion from Jury. In Ex parte Virginia,2 a judge of a state court of Virginia, one Coles, was indicted in the United States District Court for excluding from the jury certain persons on account of their [black] color. In the United States Supreme Court he filed a petition for a habeas corpus, and the state of Virginia filed a similar one. It was held that the indictment must be justified, if at all, by authority of the act of Congress, March 1, 1875, § 4, viz., “ No citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall be deemed guilty," etc.

The thirteenth and fourteenth amendments relate to this subject.

"One great purpose of these amendments 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. They were intended to take away all possibility of oppression by law, because of race or color. They were intended to be, what they really are, fimitations of the power of the states and enlargements of the power of

1 See Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370, for illustrations of cases where the rights of colored men were not infringed. ED.

2 100 U. S. 339. ED.