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LAW, CONSTITUTIONAL. 



secntvd by the amendment to n white woman, 

 ii.. r ..IK- which a State i> prohibited from deny- 

 in- T abridging. May a State regulate tho 

 practice of law in its own courts on the ground 

 .11 as sex? The court has ad- 

 mitted that a State may exclude from the jury- 

 box all persons above or under a certain age ; 

 may i-xdude women: may make property or 

 intelligence qualifications; may make convic- 

 tion of un offense a disqualification. May it 

 exrlude colored jurors as well as the old, the 

 young, the |>o..r. the ignorant, and females? In 

 other \\onK is the privilege of sitting on a 

 jury, or the right to be tried by a jury from 

 which blacks nre not excluded, a right which a 

 State is prohibited by the fourteenth amend- 

 ment from denying to a colored citizen? 



This question was raised, elaborately dis- 

 cussed, and decided in tho Virginia jury cases, 

 which came up in 1879, and are reported in 

 100 U. S. Reports. The decision of the court 

 was in favor of the power of the General Gov- 

 ernment, and against that of the States. It held 

 that whether a colored or a white citizen was on 

 trial, whether life, liberty, or property, either 

 of black or white, was at stake, no State has a 

 right to exclude negroes from the jury by rea- 

 son of their color, or to make any color or race 

 discrimination in the selection of jurors in State 

 courts. The amendment, said Justice Strong, 

 " ordains that no State shall deprive any person 

 of life, liberty, or property without due process 

 of law, or deny to any person within its juris- 

 diction the equal protection of the laws. What 

 is that but declaring that the law in the States 

 shall be the same for the black a.s for the white; 

 that all persons, whether colored or white, shall 

 stand equal before the laws of the States ; and 

 in regard to the colored race, for whose protec- 

 tion the amendment was primarily designed, 

 that no discrimination shall be made against 

 them by law because of their color ? The words 

 of the amendment, it is true, are prohibitory, 

 but they 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 legal discrimina- 

 tions, implying inferiority in civil society, 

 lessening the security of their enjoyment of 

 the rights which others enjoy, and discrimina- 

 tions which are steps toward reducing them to 

 the condition of a subject race. . . . The very 

 fact that colored people are singled out and 

 expressly denied by a statute all right to par- 

 ticipate in the administration of the law as 

 jurors, because of their color, is practically a 

 brand upon them affixed by the law, an asser- 

 tion of their inferiority and a stimulant to that 

 race prejudice which is an impediment to se- 

 curing to individuals of the race that equal 

 justice which the law aims to secure to all 

 others." 



From this doctrine Justices Field and Clifford 

 dissented in elaborate opinions written by the 

 former in the cases of Virginia against Rives, 



and ex parte Virginia, reported in 100 U. S. 

 Reports. From these opinions the following 

 passages are given, as showing the views of 

 the minority of the court: 



Its first clause [of the fourteenth amendment] do- 

 rian d who nre citizens of the United States and of the 

 States. It thus removed from discussion the question 

 which had previously been debated, and though de- 

 cided, not settled, by the judgment in the Drca Scott 

 case, whether descendants ofpersons brought to this 

 country and sold as slaves were citizens within tho 

 meaning of the Constitution. It also recognized if it 

 did not create a national citizenship, as contradistin- 

 guishcd from that of the States. But the privilege or 

 the duty, whichever it may be called, of acting as a 

 juror in the courts of the country is not an incident of 

 citizenship. Women are citizens; so are tin 

 above sixty, and children in their minority ; vet thev 

 are not allowed in Virginia to act assurors. Though 

 some of these are in all respects qualified for such ser- 

 vice, no one will pretend tnat their exclusion by law 

 from the jury-list impairs their rights as citizens. 



The second clause of the first section of the amend- 

 ment declares that " no State shall make or enforce 

 any law which shall abridge the privileges or immu- 

 nities of citizens of the United States." In the Slaugh- 

 ter-House cases it was held by a majority of the court 

 that this clause had reference only to privileges and 

 immunities of citizens of the United States, as "distin- 

 guished from those of citizens of the States, and there- 

 fore did not apply to those fundamental civil rights 

 which belong to citizens of all free governments, such 

 as the right to acquire and enjoy property and pursue 

 happiness, subject only to such just restraints as niiirht 

 be prescribed for the general good. If this construc- 

 tion be correct, there can be no pretense that the priv- 

 ilege or duty of acting as a juror in a State court is 

 within the inhibition of the clause. . . . 



The third clause in the first section of the amend- 

 ment declares that no State " shall deprive any PIT.- *n 

 of life, liberty, or property without due process of 

 law." It will not be contended that this clause con- 

 fers upon the citizen any right to serve as a juror in 

 the State courts. It exists in the Constitutions of 

 nearly all the States, and is only an additional secu- 

 rity against arbitrary deprivation of life and liberty, 

 and arbitrary spoliation of property. It means that 

 neither can be taken or the enjoyment thereof im- 

 paired, except in the course of the regular administra- 

 tion of the law in the established tribunals. The ex- 

 istence of this clause in the amendment is to me a 

 persuasive argument that those who framed it never 

 contemplated that the prohibition was to be enforced 

 in any other wav than through the judicial tribunals, 

 as previous prohibitions upon the States had always 

 been enforced. If Congress could, as an appropriate 

 means to enforce the prohibition, prescribe criminal 

 prosecutions against legislators, judges, and other 

 officers of the States, it would be authorized to frame 

 a vast portion of their laws. . . . 



The fourth clause in the first section of the amend- 

 ment declares that no State shall " deny to any person 

 within its jurisdiction the equal protection of the 

 laws." . . . The equality of the protection secured 

 extends only to civil rights as distinguished from 

 those which are political, or arise from the form of 

 government and its mode of administration. ... It 

 secures to all persons their civil rights upon the same 

 terms ; but it leaves political rights, or such as arise 

 from the form of government arid its administration, 

 as they stood previous to its adoption. It has no more 

 reference to them than it has to social rights and du- 

 ties, which do not rest upon any positive law, though 

 they are more potential in controlling the intercourse 

 of individuals. In the consideration of questions 

 growing out of these amendments much confusion has 

 arisen from a failure to distinguish between the civil 

 and the political rights of citizens. Civil rights are 

 absolute and personal. Political rights, on the other 



