Neal v. Delaware, 103 U.S. 370 (1880)

Neal v. Delaware

103 U.S. 370

ERROR TO THE COURT OF OYER AND TERMINER

OF NEW CASTLE COUNTY, STATE OF DELAWARE

Syllabus

1. The adoption of the Fifteenth Amendment rendered inoperative a provision in the then existing Constitution of a State whereby the right of suffrage was limited to the white race.

2. Therefore, a statute confining the selection of jurors to persons possessing the qualifications of electors is enlarged in its operation so as to embrace all those who, by the Constitution of the State, as modified by that amendment, are entitled to vote.

3. The presumption should be indulged, in the first instance, that the State recognizes as binding on all her citizens and every department of her government an amendment to the Constitution of the United States, from the time of its adoption, and her duty to enforce it, within her limits, without reference to any inconsistent provisions in her own Constitution or statutes.

4. In this case, that presumption is strengthened, and becomes conclusive, not only by the direct adjudication of the highest court of the State of Delaware that her Constitution had been modified by force of the amendments to the Constitution of the United States, but by the entire absence of any statutory enactment, since their adoption, indicating that she does not recognize, in the fullest legal sense, their effect upon her Constitution and laws. 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.

5. Had the State, since the adoption of the Fourteenth Amendment, enacted any statute in conflict with its provisions, or had her judicial tribunals repudiated it as a part of the supreme law of the land, or declared that the acts passed to enforce it were inoperative and void, there would have been just ground to hold that the case was one embraced by sect. 641 of the Revised Statutes, and, therefore, removable into the Circuit Court.

6. The exclusion, because of their race and color, of citizens of African descent from the grand jury that found, and from the petit jury that was summoned to try, the indictment, 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 this court upon writ of error.

7. Upon the showing made by the prisoner, the motions to quash the indictment and the panels of jurors should have been sustained.

8. The court reaffirms the doctrines announced in Strauder v. West Virginia (100 U.S. 303), Virginia v. Rives (id., 315), and Ex parte Virginia (id., 339).

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. The indictment was, by a writ of certiorari, removed for trial into the Court of Oyer and Terminer for the same county, the highest judicial tribunal of Delaware in which the decision of such a case could be had. In the latter court, the accused, by counsel specially assigned for his defence, filed the following petition:

In the Court of Oyer and Terminer of the State of Delaware,

sitting in and for New Castle County, May Term, A.D. 1880

THE STATE OF DELAWARE

v.

WILLIAM NEAL

Indictment for Rape, certified from the Court of

General Sessions for said County.

To the Honorable Court of Oyer and Terminer of the State of Delaware, sitting in and for New Castle County.

The petition of William Neal respectfully represents that your petitioner is the defendant in the above-entitled indictment for the crime of rape alleged to have been committed on one Margaret E. Gosser; that said indictment was found in the Court of General Sessions of the Peace and Jail Delivery for said county, by the grand inquest of said county, on the eleventh day of May instant, and has since been duly certified into the Court of Oyer and Terminer for said county.

That your petitioner is a citizen of the United States and of the State of Delaware, of African race and descent from black in color; that, by the statutes of the State, all persons qualified to vote at the general election are liable to serve as jurors, except public officers of the said State or of the United States, counselors and attorneys at law, ordained ministers of the gospel, officers of colleges and teachers in public schools, practicing physicians, surgeons regularly licensed, cashiers of incorporated banks, and all persons who are more than seventy years of age.

That, by the Constitution of the State, the right of an elector is enjoyed only by male citizens above the age of twenty-one years, who are also free white persons, and is not enjoyed by virtue of the provisions of that Constitution, by persons otherwise qualified, who are not white persons.

That the Levy Court of New Castle County are required by the law of the State, at its annual session in March, to select from the list of taxable citizens of each county the names of one hundred sober and judicious persons to serve, if summoned, as grand jurors at the several courts to be holden in that year, and also the names of one hundred and fifty other sober and judicious persons to serve, if summoned, as petit jurors in said courts; that said Levy Court for said county, at their annual session in March last, in selecting persons to serve as grand jurors and petit jurors as aforesaid, if summoned, for the courts aforesaid, including both the Court of General Sessions and the Court of Oyer and Terminer, as aforesaid, selected no persons of color, or African race, to serve as such jurors as aforesaid, but, on the contrary thereof, did exclude all colored persons and persons of African race, because of their race and color, from those selected as aforesaid to serve as and be drawn for jurors as aforesaid; that the prothonotary and clerk of the peace for said county drew from the lists of those so selected as aforesaid to serve as grand jurors the grand jurors by whom the said indictment against your petitioner was found, and also drew from the list of those selected as aforesaid to serve as petit jurors the petit jurors by whom your petitioner is to be tried for his life under said indictment, and that, from both the grand jury aforesaid and from the said petit jury, all persons otherwise qualified by law to serve as jurors as aforesaid who were persons of color and of African race were excluded as aforesaid, because of their race and color, from serving thereon as jurors, and that said grand and petit juries were drawn from and composed of exclusively white persons, and that, in fact, persons of color and of African race, though otherwise qualified, have always in said county and State been excluded from serving on juries because of their race and color; that, by reason of the exclusion as aforesaid from said grand and petit juries in said courts of all persons of color and African race, because of their race and color, though otherwise qualified to serve as jurors, your petitioner, in the finding of said indictment, has been, and in the trial thereof will be, denied the equal protection of the laws, and will not have the full and equal benefit of all laws and proceedings in the State of Delaware for the security of his person in the trial of said indictment as is enjoyed by white persons.

That, by reason of the exclusion as aforesaid of all persons of color and African race from said grand and petit juries in said courts, and, by reason of the Constitution and laws of Delaware in respect to the qualifications of jurors excluding from said grand and petit jury all colored persons of African race, your petitioner is denied, and cannot enforce in the judicial tribunals of the State, a right secured to him by the law of the United States providing for the equal civil rights of citizens of the United States, to-wit, the rights under the fourteenth article of the amendments to the Constitution of the United States to the equal protection of the laws; and to the right under said amendment and the acts of Congress in the enforcement thereof to a trial under said indictment for his life by a jury from which the State of Delaware has not excluded all persons of his own race and color because of their race and color.

Your petitioner therefore prays this honorable court that the said indictment and its prosecution be removed into the Circuit Court of the United States for the District of Delaware for trial at the next ensuing term of said Circuit Court.

And your petitioner will ever pray.

WILLIAM [his mark] NEAL

Sworn to and subscribed by the said William Neal, the thirteenth day of May, A.D. 1880, before me.

JOHN P. SPRINGER, C.P.

STATE OF DELAWARE,

New Castle County, ss:

On this fourteenth day of May, A.D. 1880, before me, John P. Springer, clerk of the peace and of the Court of Oyer and Terminer and the Court of General Sessions of the Peace and Jail Delivery for New Castle County, personally appeared William Neal, who, being by me first solemnly sworn according to law, says that the facts set forth in the foregoing petition (signed by him by making his mark thereunto in my presence) are true to the best of his knowledge and belief.

WILLIAM [his mark] NEAL.

Sworn to and subscribed before me, as witness my hand and the seal of the Court of Oyer and Terminer the day and year aforesaid.

JOHN P. SPRINGER, C.P.

The court being of the opinion that the defendant was not entitled to have his case removed to the Circuit Court of the United States, because there is no law of the State of Delaware forbidding the Levy Court to select persons of African race and of color as jurors, on account of their race and color, if in the judgment of the Levy Court such persons are otherwise qualified to serve as jurors, and because it did not appear that the grand and the petit jury, though composed solely of white men, were so made up because the names of colored men were not selected for jury service on the ground of their race and color, and because the defendant had not shown that he was denied any right secured to him as a citizen of the United States, through the selection of those panels by the Levy Court -- denied the prayer of the petitioner, and refused to certify the indictment and prosecution into the Circuit Court, but compelled him to proceed to trial in the Court of Oyer and Terminer. To which ruling of the court, the defendant excepted.

Thereupon, the defendant, before he was arraigned, moved to quash the indictment, and the list and panel of grand jurors by whom it was found, upon the following grounds: that the Levy Court, in selecting persons to serve as grand jurors and petit jurors (if summoned) for the Court of General Sessions and the Court of Oyer and Terminer, selected no persons of color or African race to serve as such jurors, but, on the contrary, excluded all colored persons and persons of African race, because of their race and color, from those selected to serve as and be drawn for jurors; that the prothonotary and clerk of the peace for the county drew from the lists of those so selected to serve as grand jurors the grand jurors by whom the indictment against the defendant was found, and also drew from the list of those selected to serve as petit jurors the petit jurors by whom the defendant was to be tried for his life under the indictment; and that from both the grand and the petit jury all persons qualified by law to serve as jurors who were persons of color and of African race were excluded, because of their race and color, from serving thereon as jurors, and that the grand and petit jurors were drawn from and were composed exclusively of white persons, and that, in fact, persons of color and of African race, though otherwise qualified, have always in the county and State been excluded from serving upon juries because of their race and color; and that by reason of such exclusion from the grand and petit juries of all persons of color and African race; because of their race and color, though otherwise qualified to serve as jurors, the defendant in the finding of the indictment had been, and in the trial thereof would be, denied the equal protection of the laws, and would not have the full and equal benefit of all laws and proceedings in the State of Delaware for the security of his person as is enjoyed by white persons.

It being then and there agreed between the Attorney General on behalf of the State, and the defendant, through his counsel, with the consent of the court, that the statement and allegations of the defendant in his petition for the removal of the indictment, and its prosecution for trial into the Circuit Court and their verification by his oath, should be taken and treated and given the same force and effect, in the consideration and decision of the motions to quash the indictment, and the lists and panels of grand and petit jurors, as if the statements and allegations were made and verified by him in a separate and distinct affidavit; the court thereupon overruled and refused to grant the motion of the defendant to quash the indictment, and the lists and panels of grand jurors and petit jurors, because, although in fact no persons of African race and of color were upon either panel, no evidence had been produced or offered by him to prove his statements and allegations in his petition and affidavit thereto, upon which the motion to quash was founded, that the exclusion by the Levy Court from the grand and petit juries of all persons of African race and color was because of their race and color, and that the court could not accept such fact of exclusion because of race and color to be established by the circumstance that no persons of African race or of color were, in fact, on the lists and panels of grand jurors and petit jurors, or by his mere unaided affidavit, but the same should have been proven affirmatively on his part by competent testimony outside of his own affidavit, before the motion could be granted. To which ruling, the defendant excepted.

Thereupon, before the defendant was arraigned under the indictment, and before he had pleaded thereto, and after the motion of the defendant to quash the indictment and the lists and panels of grand jurors and petit jurors, because of the alleged exclusion by the Levy Court of New Castle County from the lists and panels of grand jurors and petit jurors of all persons of African race and color, because of their race and color, had been overruled by the court, because the defendant had offered no evidence or witnesses to prove the statements and allegations of his own affidavit that the Levy Court had excluded from the lists and panels of grand jurors and petit jurors all persons of African race and of color, because of their race and color, to-wit, on the twenty-fourth day of May, 1880, he further moved the court that he be permitted to produce as witnesses in support of his motion to quash the indictment, and the lists and panels of grand jurors and petit jurors, and in support of the allegations and statements of his petition and affidavit, on which the motion was founded, the commissioners and clerk and bailiff of the Levy Court, and that the court should issue by its clerk subpoenas for the persons as witnesses to testify as aforesaid.

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; that application for leave to summon witnesses to support a motion which had been argued and refused because of want of proof when sufficient time had existed for its production was without precedent in the Court of Oyer and Terminer of that State, and therefore the motion must be treated as coming too late to be granted; to which ruling of the court the defendant excepted.

The prisoner was then arraigned, and pleaded not guilty. The jury tried the issue, and returned a verdict of guilty. Whereupon he was by the court, May 27, 1880, sentenced to suffer death by hanging. He thereupon sued out this writ of error.

Sect. 1 of art. 4 of the Constitution of Delaware declares that --

All elections for governor, senators, representatives, sheriffs, and coroners shall be held on the Tuesday next after the first Monday in the month of November of the year in which they are to be held, and be by ballot.

And in such elections every free white male citizen of the age of twenty-two years or upwards, having resided in the State one year next before the election, and the last month thereof in the county where he offers to vote, and having within two years next before the election paid a county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector; and every free white male citizen of the age of twenty-one years and under the age of twenty-two years, having resided as aforesaid, shall be entitled to vote without payment of any tax: Provided, that no person in the military, naval, or marine service of the United States shall be considered as acquiring a residence in this State by being stationed in any garrison, barrack, or military or naval place or station within this State; and no idiot, or insane person, pauper, or person convicted of a crime deemed by law felony, shall enjoy the right of an elector; and that the legislature may impose the forfeiture of the right of suffrage as a punishment for crime.

Chapter 109 of the Revised Statutes of 1853 of the State contains the jury law of Feb. 28, 1849. It is as follows:

SECT. 1. All persons qualified to vote at the general election shall be liable to serve as jurors, except public officers of this State, or of the United States, counselors and attorneys at law, ordained ministers of the gospel, officers of colleges, and teachers of public schools, practicing physicians and surgeons regularly licensed, cashiers of incorporated banks, and all persons who are more than seventy years of age.

SECT. 2. The Levy Court for each county shall, at its annual session in March, select from the list of taxable citizens of such county, in such proportion for each hundred as may be deemed proper, the names of one hundred sober and judicious persons, to serve (if summoned) as grand jurors at the several courts to be holden in that year; and also the names of one hundred and fifty other sober and judicious persons, to serve (if summoned) as petit jurors, at the several courts, other than the courts of quarter sessions, to be holden in that year; and also the names of one hundred and twenty other sober and judicious persons, to serve (if summoned) as jurors at the Court of Quarter Sessions to be holden in that year. There shall be provided for each hundred, three boxes, one of which shall be marked or labeled "grand jurors," another "petit jurors," and the other "quarter sessions jurors," and each with the names of the hundred. The name of the persons selected as aforesaid shall be written each on a separate ballot, all the ballots being of the same color, size, and shape, and the ballots shall be folded so as to conceal the names written upon them. Those containing the names of persons selected for grand jurors shall be deposited in the boxes marked "grand jurors," the names selected from each hundred being placed in the box of that hundred; in like manner, the names of persons selected for petit jurors shall be deposited in the boxes marked "petit jurors," the names selected from each hundred being placed in the box of that hundred; in like manner, the names of persons selected for "quarter session jurors" shall be deposited in the boxes marked "quarter sessions jurors," the names selected from each hundred being placed in the box of that hundred; after which the boxes shall be locked and delivered to the prothonotary, and the keys shall be kept by the clerk of the peace. The Levy Court shall preserve lists of the persons selected for jurors, and shall deliver to the said prothonotary, with the boxes aforesaid, copies of said lists signed by the chairman of said court, and countersigned by the clerk thereof, showing the number selected from each hundred.

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SECT. 4. The prothonotary and clerk of the peace shall, within ten days after the delivery of the said boxes to the prothonotary as above provided, meet in the prothonotary’s office, and, first shaking the boxes so as to intermix the ballots, shall, in the presence of such persons as may choose to be present, draw from the box marked "grand jurors," in the same proportion for each hundred in which they were selected by the Levy Court, the names of twenty-four persons to be summoned as grand jurors for that year.

SECT. 5. The prothonotary and clerk of the peace shall, at least twenty days before the commencement of each term of the Superior Court and Court of General Sessions for the county, in like manner draw from the boxes marked "petit jurors," in the same proportions for each hundred in which they were selected by the Levy Court, the names of thirty persons to serve as petit jurors at the ensuing term of said courts.

* * * *

SECT. 8. The officers drawing for grand and petit jurors as aforesaid shall, immediately thereafter, deliver to the sheriff of the county a correct list of names of the persons so drawn, with the date of the drawing indorsed thereon.

SECT. 9. The said boxes shall, immediately after any drawing for jurors, be locked and kept by the prothonotary, the keys being delivered into the custody of the clerk of the peace.

SECT. 10. The sheriff of the county, upon receiving a list of persons drawn for grand jurors as aforesaid, shall, at least ten days before the next ensuing term of the Court of General Sessions for his county, summon, in writing, each of the said persons to serve as the standing grand jurors for that year at the said court. He shall, in like manner, upon receiving a list of persons drawn for petit jurors as aforesaid, at least ten days before the next ensuing term of the Superior Court and Court of General Sessions, summon, in writing, each of the said persons to serve as petit jurors at the then next term of the said courts respectively.

The sheriff shall, within one hour after opening of said courts respectively, on the first day of every term, return to each of said courts a separate and distinct panel of persons summoned to attend thereat as grand or petit jurors, showing the Christian and surnames, and places of abode of such jurors.

SECT. 11. The grand jurors for the year drawn as aforesaid shall be summoned and returned to attend, as grand jurors, at any Court of Oyer and Terminer, when the precept for holding such court directs a grand jury to be summoned.

For any Court of Oyer and Terminer, forty-eight petit jurors shall, upon notice from the sheriff to the prothonotary and clerk of the peace that such court is to be held, be drawn, summoned and returned according to the foregoing provisions for drawing, summoning and returning petit jurors for the Superior Court and Court of General Sessions: Provided, that if the day assigned for holding a Court of Oyer and Terminer shall be at a time when a petit jury is in attendance upon the Superior Court or Court of General Sessions, such jury shall constitute a part of the panel of the petit jurors to be summoned to attend the said Court of Oyer and Terminer, and only the residue of the said number of forty-eight jurors shall be drawn according to the foregoing provisions.