The Revised Statutes of Kentucky were superseded (certainly as to the selection of grand and petit jurors) by the General Statutes, which were formally enacted as the law of the State, and went into effect on the first day of December, 1873. These whilst declaring, in conformity with the Fourteenth Amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof if residing in Kentucky to be citizens of that State- re-enacted the disqualification of colored persons as petit jurors, and also provided that "no person shall be qualified as a grand juryman unless he be a white citizen." Gen. Stat. Ky. 570. And in the new Criminal Code of Practice of Kentucky, which went into effect Jan. 1, 1877, it is expressly provided that “the selecting, summoning, and impanelling of a grand jury shall be as prescribed in the General Statutes." Sect. 101.

It thus appears that the legislature of Kentucky, after the adoption of the Fourteenth Amendment and notwithstanding the explicit declaration therein that "no State shall deny to any person within its jurisdiction the equal protection of the laws," twice expressly enacted that no citizen of the African race should be competent to serve either as a grand or petit juror. And these re-enactments of the prior laws excluding citizens of that race from service on grand or petit juries remained unchanged by legislation in that Commonwealth until the passage of the act approved Jan. 26, 1882, whereby the word "white" was stricken out of the sections of the General Statutes prescribing the qualifications of grand and petit jurymen.

In this connection it is necessary to recur to the case of Commonwealth v. Johnson, determined, as we have seen, in the Court of Appeals of Kentucky on the 29th of June, 1880. In that case it was held, upon the authority of Strauder v. West Virginia, 100 U. S. 303 (decided on the first day of March, 1880), that so much of the statute of Kentucky "as excludes all persons other than white men from service on juries is unconstitutional, and that no person can be lawfully excluded from any jury on account of his race or color." The learned court then proceeded: "This question has not been heretofore passed on by this court, and as the duty of select

ing and summoning juries is devolved upon merely ministerial officers, we ought to assume that, in performing their duties, they obeyed the statute as enacted by the legislature, and that they excluded colored persons from the jury because the statute declares them to be incompetent, and, consequently, that the appellee was deprived by the statute of a right which the Supreme Court holds is secured to him by the Constitution.

"But the word white,' as found in our jury laws, being now declared to be no part of that law, it will be incumbent on all officers charged with the duty of selecting or summoning jurors, to make their selections without regard to race or color; and when juries are hereafter selected and summoned, it ought to be presumed that the officers did their duty, and ignored the statute so far as it is herein held to be unconstitutional, and that they have not excluded any person from the jury on account of his race or color." 78 Ky. 509.

The indictment upon which the plaintiff in error has been tried, convicted, and sentenced to suffer death was returned by a grand jury selected by jury commissioners who were appointed by the State court of original jurisdiction at its May Term, 1880. It was therefore found by grand jurors who were selected prior to the decision in Commonwealth v. Johnson. The names of the grand jurors so selected were reported to the court at that term as the grand jury for the succeeding term, at which the indictment upon which Bush was tried was returned. So that the grand jurors who found the indictment were selected when statutes of Kentucky, re-enacted after the adoption of the Fourteenth Amendment, expressly restricted jury commissioners in their selection of grand jurors to white citizens. Further, they were selected at a time when, according to the rule announced by the highest court of Kentucky, it should be assumed that the officers charged with the duty of selecting grand jurors obeyed the local statute by excluding from the list, because of their race, all citizens of African descent.

These considerations bring the case within the principles announced in Neal v. Delaware. The presumption that the State recognized the Fourteenth Amendment from the date of its adoption to be binding on all its citizens and every depart

ment of its government, and to be enforced within its limits without reference to any inconsistent provisions in its own Constitution and laws, is overthrown by the fact that twice, after the ratification of that amendment, the State enacted laws which in terms excluded citizens of African descent, because of their race, from service on grand and petit juries. It was not until after the grand jurors who returned the indictment against Bush had been selected that the highest court of Kentucky, speaking with authority for all the judicial tribunals of that Commonwealth, declared that the local statutes, in so far as they excluded colored citizens from grand and petit juries because of their race, were in conflict with the national Constitution.

But upon this branch of the case the argument by counsel for the Commonwealth of Kentucky is, that the record does not show, by a bill of exceptions or otherwise, that any proof whatever was offered in support of the motion to set aside the indictment; and, consequently, that in disposing of that motion, as presenting simply a question of law arising upon the face of the local statutes, the presumption is that the jury commissioners in their selection, at May Term, 1880, of the Fayette Circuit Court, of grand jurors for the succeeding term, respected the decision in Strauder v. West Virginia and similar cases, and, therefore, disregarded the statutes of Kentucky. The force of this position would be greatly strengthened if the record furnished any evidence that the court gave to those commissioners such instructions as were given to the sheriff in May, 1881, when that officer was required to select and summon petit jurors for the trial of Bush. We are of opinion that the rule announced by the Court of Appeals in Commonwealth v. Johnson is consistent with sound reason and public policy; and, in conformity therewith, in the absence of any evidence that the selection of grand jurors, in May, 1880, was in fact made without discrimination against colored citizens, because of their race, — it should be assumed that the jury commissioners then appointed followed the statutes of Kentucky so far as they restricted the selections of grand jurors to citizens of the white race.

For these reasons it is adjudged that the court of original

jurisdiction erred in overruling the motion to set aside the indictment, and, consequently, that the Court of Appeals of Kentucky erred in affirming its judgment.

The judgment of the Court of Appeals of Kentucky is reversed, and the cause remanded to that court, to be thence remanded to the Fayette Circuit Court, with directions to set aside the indictment.

MR. JUSTICE FIELD adheres to the views expressed by him in his dissenting opinions in Ex parte Virginia, 100 U. S. 339, 349, and in Neal v. Delaware, 103 id. 370, 398; and, therefore, dissents from the judgment in this case.

MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE GRAY, dissenting.

I am unable to concur in this judgment. In my opinion it is not to be presumed that the courts or the officers of Kentucky neglected or refused to follow the rulings in Strauder v. West Virginia after the judgment in that case was pronounced by this court. The Court of Appeals promptly recognized the authority of that case, and, in the absence of any proof to the contrary, it seems to me we must assume that the inferior courts also did.

KENDALL v. UNITED STATES.

1. In computing the six years after his claim against the United States first accrues within which it may be filed in the Court of Claims, the period must be included when the claimant was unable to sue in that court by reason of the aid he gave to the rebellion.

2. The petition is bad on demurrer when it appears therefrom that the claimant's right of action against the United States is barred by the lapse of time.

APPEAL from the Court of Claims.

The case is stated in the opinion of the court.

Mr. Thomas W. Bartley for the appellant.

The Solicitor-General for the United States.

MR. JUSTICE HARLAN delivered the opinion of the court. The act of March 3, 1863, c. 92, amending that of Feb. 24, 1855, c. 122, establishing the Court of Claims, declares" that every claim against the United States, cognizable by the Court of Claims," that is, such as the government permits to be asserted against it by suit in that tribunal,-"/shall be forever barred, unless the petition, setting forth a statement of the claim, be filed in the court, or transmitted to it under the provisions of this [that] act, within six years after the claim first accrues." After providing that claims which had accrued six years before its passage shall not be barred if the petition be filed in, or transmitted to, the court within three years after its passage, and that the claims of married women, first accrued during marriage, of persons under the age of twentyone years, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in court or transmitted within three years after the disability has ceased, the act proceeds: "But no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively."

The same act also provides that, in order to authorize a judgment in favor of any citizen of the United States, it shall be set forth in the petition that the claimant, and the original and every prior owner thereof, where the claim has been assigned, has at all times borne true allegiance to the government of the United States, and whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to the rebellion against the government, which allegations may be traversed by the government; and if on the trial such issue shall be decided against the claimant, his petition shall be dismissed.

The appellant's claim arose on or about the last day of December, 1865. His petition was not filed within six years from that date, and not until Nov. 22, 1872. The government demurred, and the petition was dismissed upon the ground that the claim was barred.

Claimant was engaged in the service of the insurgent government, but he insists that in virtue of the amnesty proclamation