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under any circumstances whatever, to try him for the crime charged.

Such a construction of sect. 641 is wholly inadmissible. The prosecution against Bush could only have been commenced in the judicial tribunals of Kentucky. The crime for which he was indicted, being an offence against the laws of that State, not against those of the United States, was not originally cognizable in the courts of the Union. The removal of the first indictment into the Federal court was competent only because at that time he was denied, by the statutes of Kentucky, rights secured to him by the Constitution and laws of the United States. And when the Federal court in that mode acquired jurisdiction to proceed, as if the prosecution had been there commenced, its authority was limited to the trial of the indictment so removed. That court had, pending the prosecution therein, the same power over the indictment that the State court could have exercised had there been no removal. When, therefore, the Federal court, in the exercise of the discretion which it unquestionably had, quashed the indictment, it was without jurisdiction further to proceed against the defendant for the crime. He could not have been held for indictment by a grand jury in that court, for the obvious reason already suggested that his offence was not one against the United States, but against Kentucky. It was for the authorities of the latter alone to determine whether he should be again indicted, or the prosecution be abandoned.

It follows that there was no error in the order directing the prisoner to be returned to the county in which he was originally indicted. That course was due to the State to the end that its authorities, being duly notified, might take such further action in the premises as they should deem expedient. Coleman v. Tennessee, 97 U. S. 509; United States v. McBratney, 104 id. 621; United States v. Cisna, 1 McLean, 254.

2. But it is contended, upon behalf of the accused, that his petition for removal, filed after the second indictment was returned, should have been granted, and that the State court could not thereafter rightfully proceed. The petition referred to is doubtless the one described in the order of May 18, 1881. But the record contains no copy of it; nor did it appear in the

record sent to the Court of Appeals of Kentucky. The same question having been raised in that court, it replied properly that "an inspection of the petition is essential to determine whether it contained allegations sufficient to authorize a transfer, and, in its absence, it must be presumed that it was defective in the allegation of jurisdictional facts, and, therefore, that the court below did right to disregard it."

But there is another and distinct ground upon which that petition, assuming that it was based upon sect. 641, was properly disregarded by the inferior State court. The Court of Appeals of Kentucky, in Commonwealth v. Johnson, 78 Ky. 509, decided June 29, 1880 (and hereafter more fully referred to), had declared that the statutes of Kentucky excluding from a grand or a petit jury citizens of African descent because of their race or color, was unconstitutional, and that thereafter every officer charged with the duty of selecting or summoning jurors must so act without regard to race or color. That decision was binding as well upon the inferior courts of Kentucky as upon all of its officers connected with the administration of justice. After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of Kentucky the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The last indictment was consequently not removable into the Federal court for trial under sect. 641 at any time after the decision in Commonwealth v. Johnson had been pronounced. This point was distinctly ruled in Neal v. Delaware, and is substantially covered by the decision in Virginia v. Rives. If any right, privilege, or immunity of the accused, secured or guaranteed by the Constitution or laws of the United States, had been denied by a refusal of the State court to set aside either that indictment, or the panel of petit jurors, or by any erroneous ruling in the progress of the trial, his remedy would have been through the revisory power of the highest court of the State, and ultimately through that of this court. Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 id. 370.

3. It is also assigned for error that the court of original jurisdiction erred in overruling the motion to set aside the panel of petit jurors. We have seen that the ground of this motion was that the petit jurors were not selected and summoned as required by law, in that all citizens of African descent in the county, very many of whom were eligible and qualified to serve as jurors, were excluded from the panel by the officer charged with the duty of selecting and summoning the petit jurors, and that only white citizens were selected and summoned.

It is sufficient for, this assignment to say that the motion was properly overruled, for the reason, amongst others, that the grounds upon which it was rested do not clearly and distinctly show that the officers who selected and summoned the petit jurors excluded from the panel qualified citizens of African descent because of their race or color. It may have been true that only white citizens were selected and summoned, yet it would not necessarily follow that the officer had violated the law and the special instruction given by the court "to proceed in his selection without regard to race, color, or previous condition of servitude." There was no legal right in the accused to a jury composed in part of his own race. All that he could rightfully demand was a jury from which his race was not excluded because of their color. Virginia v. Rives, 100 U. S. 313. The allegation that colored citizens were excluded, and that only white citizens were selected, was too vague and indefinite to constitute the basis of an inquiry by the court whether the sheriff had not disobeyed its order by selecting and summoning petit jurors with an intent to discriminate against the race of the accused. This motion was, therefore, properly overruled.

4. But the most important question raised by the assignments of error is that which relates to the overruling of the motion made before the trial to set aside the indictment because found by a grand jury selected and formed upon the basis of excluding therefrom, because of their color, all citizens of the African race resident in Fayette County and eligible for such service.

In several cases heretofore decided in this court we have had

occasion to consider the general question whether the Fourteenth Amendment, and the laws passed by Congress for the enforcement of its provisions, do not prohibit any discrimination, in the selection of grand and petit jurors, against citizens of African descent, because of their race or color.

In Neal v. Delaware, 103 U. S. 370, we said commenting upon Strauder v. West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 id. 303, 313, 339- that a denial to citizens of African descent, because of their race, of the right or privilege accorded to white citizens, 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 is excluded, because of their color, every man of his race, however well qualified by education and character to discharge the functions of jurors, is a denial of the equal protection of the laws; and that such exclusion of the black race from juries, because of their color, is not less forbidden by law than would be the exclusion from juries, in the States where the blacks have the majority, of the white race, because of their color.

It was also said, in that case, that "the presumption should be indulged, in the first instance, that the State recognizes, as is its plain duty, an amendment of the Federal Constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced within its limits, without reference to any inconsistent provisions in its own Constitution or statutes."

But it was further said: "Had the State, since the adoption of the Fourteenth Amendment, passed any statute in conflict with its provisions, or with the laws enacted for their enforcement, or had its judicial tribunals, by their decisions, repudiated that amendment as a part of the supreme law of the land, or declared the acts passed to enforce its provisions to be inoperative and void, there would have been just ground to hold that there was such a denial, upon its part, of equal civil rights, or such an inability to enforce them in those tribunals, as, under the Constitution and within the meaning

of that section (641, Rev. Stat.), would authorize a removal of the suit or prosecution to the Circuit Court of the United States."

Again, it was declared that a denial upon the part of the officers of the State, charged with duties in that regard, of the right of a colored man "to a selection of grand and petit jurors without discrimination against his race, because of their race, would be a violation of the Constitution and laws of the United States, which the trial court was bound to redress. said by us in Virginia v. Rives, 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,' and ultimately in this court upon review."

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Guided by these principles, we proceed to inquire whether there was anything in the action of the State, by means of legislation or otherwise subsequent to the adoption of the Fourteenth Amendment, that requires us to hold, as matter of law, that in the selection and formation of the grand jury which returned the last indictment there was such a discrimination against the plaintiff in error because of his race, as made it the duty of the court to sustain the motion to set aside that indictment.

By the Revised Statutes of Kentucky, which went into effect on the first day of July, 1852, and were in force when the Fourteenth Amendment became a part of the national Constitution, no one was competent to serve as a petit juror who was not " a free white citizen;" and none except citizens could serve on a grand jury. 2 Rev. Stat. Ky. (Stanton's ed.), pp. 75, 77. By the same statutes it was provided that all free white persons born in Kentucky or in any other State of the Union, residing in that State, all free white persons naturalized under the laws of the United States, residing there, and all persons who have obtained a right to citizenship under former laws, and every child, wherever born, whose father or mother was or shall be a citizen of Kentucky at the birth of such child, shall be deemed citizens of that State. 1 id. 238. So that, by the law of Kentucky at the adoption of the Fourteenth Amendment no citizen of the African race was competent to serve as a grand juror.

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