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State v. Strauder.

court seems to think a much stronger case of unjust discrimination by a State against any class of its inhabitants, such as Chinese, Catholics, Mormons, naturalized foreigners or women would be required to be made out, before a case could come within the purview of this provision in the fourteenth amendment, than would have to be made out if the discrimination were against negroes. I cannot believe that the States, which adopted this amendment, designed thereby to secure to the negroes any rights or privileges, that were not equally secured to all others. It is true that the occasion for this provision and all the other provisions of the thirteenth and fourteenth amendments was the supposed necessity of protecting the negro; but special care was taken to extend these provisions to all persons whatsoever. The language is as broad as it possibly can be: "No person shall be denied the equal protection of the laws." A Chinaman or a naturalized foreigner or Roman Catholic is obviously, under this provision, entitled to this equal protection of the laws to the same extent as a negro; and though the Supreme Court has used this language, I cannot believe, when the case arises, that they can, or will, in any decision they may render, discriminate against others in favor of the negro. If they had held the law of Kentucky, forbidding a negro to testify for or against a white person, unconstitutional, they would assuredly have held the law of California, prohibiting a Chinese to testify for or against a white person, also unconstitutional. From the general tenor of the decisions of the Supreme Court, it is fair to conclude that they regard the position taken by the Supreme Court of Indiana, if not entirely sound, as substantially so; and that the thirteenth and fourteenth amendments of the Constitution of the United States have little or no other effect, than to abolish slavery and declare a negro a citizen, when born in the United States; and that the powers of the State legislatures over the civil rights, privileges, duties, or immunities of any and all of its citizens, whether negroes or whites, remain as they always were; and that no power with reference to these rights is conferred by Congress on the Federal judiciary. This decision of the Supreme Court has since been followed up by others, based on the same views of the meaning of these amendments of the Constitution. Thus in Bradwell v. The State, 16 Wall. 130, the court decided that the decision of the Supreme Court of Illinois, that a woman resident in Illinois ought to be refused a license to practice law in the courts of that State, by the law of that State, was no viola

State v. Strauder.

tion of the 14th amendment of the Constitution of the United States, basing that decision on the broad ground that, no matter what laws a State may pass relative to its own citizens, their rights or immunities, such law would not violate this amendment of the Constitution; and on these principles, any State could prohibit a Chinese or a negro, or a white man, resident in the State, from practicing law or sitting on a jury, or giving evidence in its State courts. In the same spirit, the 3d and 4th sections of the act of May 31, 1870 (16 Stat. 140), providing for the punishment of State officers of election and others, was pronounced unconstitutional by the Supreme Court, in the case of the United States v. Reese et al., 2 Otto, 215, the same not being regarded as "appropriate legislation," within the meaning of the fifteenth amendment of the Constitution. And in the United States v. Cruikshank, id. 542, the Supreme Court decided that the fourteenth amendment of the Constitution of the United States prohibits a State from depriving any person of life, liberty or property, without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws; but it adds nothing to the rights of one citizen against another. It simply furnishes an additional guaranty against the encroachment by the States upon the fundamental rights, which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there.

I will follow the example of the Supreme Court of the United States in the Slaughter House cases, 16 Wall. 81, and not undertake to state my views of the cases, to which the last clause of the first section of the fourteenth amendment may apply, till some case arises of oppression of the State, by the denying of equal protection of the laws to some person within its jurisdiction; and content myself, as they did, with saying that we find no such case in the one before us. For this is obviously no such case. The prisoner has not been denied the equal protection of the laws of West Virginia. It follows from the case of Blyew v. The United States, 13 Wall. 581, that in the opinion of the Supreme Court, the prisoner could not be regarded as being denied the equal protection of the laws, if white persons had been, as they were, permitted to testify against him, even if our State laws had prohibited, which they do not, a negro to testify in an exactly similar

State v. Strauder.

case against a white prisoner on trial. And surely if this be the case the mere prohibition of negroes to sit upon the jury which tried him cannot be regarded as the denial of equal protection of the laws to him. The negro has no more right to insist upon the equal protection of the laws than a Chinaman or a woman. And surely it will not be pretended that a State, which by its laws prohibits a Chinaman or a woman from sitting on a jury, does thereby deny to a Chinaman or woman who is being tried for a felony the equal protection of the laws. Has not a woman as much right to insist that a State, by its laws, must permit her to be defended by a woman as her counsel, as she has to insist that women should be allowed to sit on a jury which tries her? And yet the Supreme Court of the United States decided in the case of Bradwell v. The State, 16 Wall. 130, that a State has a right to prohibit women from acting as counsel in any case. I agree with the Supreme Court in the Slaughter House cases, that it is doubtful whether in the future any action of a State is likely to occur which will ever be held to come within the purview of this last clause of the first section of the 14th amendment, prohibiting a State to deny to any person the equal protection of its laws. But I cannot think that a State is likely to bring a case within the purview of this provision by discriminating against the negro in such manner as to deny to the negro the equal protection of the laws, as it has been heretofore interpreted. And as I have before said, I believe the interpretation of this provision ought and must be the same, whether applied to negroes, Chinamen, women or other persons. I know of no State law which has been passed since the adoption of this amendment of the Constitution which violates it by thus discriminating against negroes; and though there have been some State laws, even in our own State, which would perhaps be regarded as violating this provision of the Constitution of the United States, yet they were directed not against negroes but against white persons. They have, however, been repealed, and it is not likely that such acts will ever be again passed by any State. It is confidently believed that no such acts will be ever again enacted in this State. An example of this sort of legislation may be found in the act passed February 28, 1865, and re-enacted in the Code of West Virginia of 1868. See Code of West Virginia, chap. 136, §§ 10, 11, 12 and 13, page 645. This act prohibited any person who had abetted the Confederate States from suing a per

State v. Strauder.

son who had remained loyal to the government of the United States.

courts.

The views I have expressed show clearly that in the case before us the Circuit Court did not err in refusing to order the removal of this case to the United States court for trial. The prisoner in his petition based his application for such removal on two grounds: First, because a false impression prevailed throughout the State of West Virginia that colored men are not entitled to the same protection in the marital relation as white men. This amounts to an allegation that prejudices exist in this State relative to negroes that would injuriously affect him if he were tried before the State It is obvious from what has been said that in my opinion this gives him no right to have the trial of his case removed to the Federal court. If it did, any citizen of this State, white or black, could at his pleasure on affidavit remove any case, civil or criminal, from the State to the Federal courts. The other ground, alleged in the petition for the removal of the cause to the Federal court, is that under the laws of West Virginia none but white persons are allowed to serve as jurors, and therefore, he, being a negro, has not the equal protection of the laws. We have seen that in the trial of a citizen of this State for an offense committed in the State against her laws, the prisoner could in no case have a right to have the trial removed to the Federal court, the fourteenth amendment not being intended to protect the citizens of any State against unjust legislation by their own State. In the particular case before us I cannot see why a jury of white men would not be quite as likely to do justice to the prisoner as a jury of negroes; but if it were otherwise, it would give him no right to have his case removed to the Federal court for trial.

HAYMOND, MOORE and JOHNSON, JJ., concurred.

Judgment affirmed.

CASES

IN THE

SUPREME COURT

OF

PENNSYLVANIA.

JOHNSTON V. COMMONWEALTH,

(85 Penn. St. 54.)

Criminal law-burglary-constructive breaking.

The prisoner, pretending to have business with the occupant of a dwelling house, gained admittance thereto at night, with intent to commit a robbery Held, a constructive breaking sufficient to support an indictment for burglary by breaking and entering.

IND

[NDICTMENT for burglary and entering with intent to steal. Conviction. The opinion states the facts.

J. McDowell Sharpe, and Duncan & McGowan, for plaintiff in

error.

0. C. Bowers, district attorney, and Kennedy & Stewart, for the Commonwealth.

PAXSON, J. [Omitting a minor point.] Without going into extended details, there was abundant evidence to show a conspiracy between the defendant (plaintiff in error) and his confederate, Rolland, to rob the bank. This design had evidently existed for a period of some weeks, and the plan carefully arranged. There were well-matured preparations for disguise and flight; masks and

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