APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.
The ground upon which the appellant based his application for writs of habeas corpus and certiorari was that his trial and conviction were in violation of his rights under the Constitution and laws of the United States, in that the grand jurors who returned the indictment, and the petit jurors by whom he was tried, were drawn from lists from which were excluded, because of their race and color, all citizens of African race and descent. Certainly, such exclusion was not required by the laws of New York. By the act of July 1, 1882, known as the New York Consolidation Act, grand jurors in courts of Oyer and Terminer and of General Sessions, held in the city and county of New York, are required to be selected from the persons whose names are contained in the list of petit jurors for the time being for that city, and by a Board consisting of the Mayor, the Presiding Judge of the Supreme Court in the First Judicial District, the Chief Justice of the Superior Court of the city, the first Judge of the Court of Common Pleas, the
Recorder, and the City Judge of the city and county. It is the duty of that Board to select from the lists produced by the commissioner of Jurors of persons qualified to serve as jurors in the city, the names of not less than six hundred nor more than one thousand persons to serve as grand jurors of the different courts of Oyer and Terminer and General Sessions; and the persons so selected are required to be "intelligent citizens of good character," and, "so far as the said Board may be informed, possessed of the qualifications required of persons to serve as jurors for the trial of issues of fact, and not exempted from serving as such jurors." Laws of N.Y. 1882, §§ 1638, 1641. A person, to be qualified to serve as a trial juror for a court in the city and county of New York, must be: "1. A male citizen of the United States, and a resident of that city and county. 2. Not less than twenty-one, nor more than seventy years of age. 3. The owner, in his own right, or real or personal property, of the value of two hundred and fifty dollars; or the husband of a woman who is the owner, in her own right, of real or personal property of that value. 4. In the possession of his natural faculties, and not infirm or decrepit. 5. Free from all legal exceptions; intelligent; of sound mind and good character; and able to read and write the English language understandingly." § 1652; Code of Civil Procedure, § 1079. It is admitted, and, if it were not admitted, it is too clear to require discussion to prove, that these statutory regulations do not authorize, indeed, do not permit, the exclusion of any citizen from the lists of grand and petit jurors, because of his race and color. They apply equally to citizens of the United States resident in the city and county of New York, to whatever race they belong. So far as participation in the administration of justice by service upon grand and petit juries is concerned, they ignore all distinctions between citizens of the United States arising merely from race and color.
But it is contended that the present case is brought within former decisions of this court by reason of the alleged exclusion, in fact, from the lists of grand and petit jurors, of citizens of the African race, because of their race and color. The
decision upon which the appellant particularly relies in support of his application for the writ of habeas corpus is Neal v. Delaware, 103 U.S. 370, 394, which, it must be observed, came here from the highest court of the State upon writ of error. In that case this court -- after remarking that a denial, by officers of the State charged with the duty of selecting jurors, of the right of the accused 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 -- observed: "As said by us in Virginia v. Rives, 100 U.S. 313, 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. We repeat what was said in that case, that while a colored citizen, party to a trial involving his life, liberty or property, cannot claim, as matter of right, that his race shall have a representation on the jury, and while a mixed jury, in a particular case, is not, within the meaning of the Constitution, always or absolutely necessary to the equal protection of the laws, it is a right to which he is entitled, 'that in the selection of jurors to pass upon his life, liberty or property, there shall be no exclusion of his race, and no discrimination against them, because of their color.'"
We do not perceive that anything said in Neal v. Delaware would have authorized the Circuit Court to discharge the appellant from custody, even if, upon investigation, it had found that citizens of the race to which he belongs had been, in fact and because of their race, excluded from the lists of grand and petit jurors from which were selected the grand jurors who indicted and the petit jurors who tried him. That was a matter arising in the course of the proceedings against the appellant, and during his trial, and not from the statutes of New York, and should have been brought at the appropriate time, and in some proper mode, to the attention of the trial court. Whether the grand jurors who found the indictment, and the petit jurors who tried the appellant, were or were not selected in conformity with the laws of New York --
which laws, we have seen, are not obnoxious to the objection that they discriminate against citizens of the African race, because of their race -- was a question which the trial court was entirely competent to decide, and its determination could not be reviewed by the Circuit Court of the United States, upon a writ of habeas corpus, without making that writ serve the purposes of a writ of error. No such authority is given to the Circuit Courts of the United States by the statutes defining and regulating their jurisdiction. It often occurs in the progress of a criminal trial in a state court, proceeding under a statute not repugnant to the Constitution of the United States, that questions occur which involve the construction of that instrument and the determination of rights asserted under it. But that does not justify an interference with its proceedings by a Circuit Court of the United States, upon a writ of habeas corpus sued out by the accused either during or after the trial in the state court. For "upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them;" and "if they fail therein, and withhold or deny rights, privileges or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination." Robb v. Connolly, 111 U.S. 624, 637.
Of this right to have the action of the trial court reviewed in the highest court of the State, the appellant availed himself. His present application, it is true, does not show that his case was carried to the Court of Appeals of New York, and that the judgment of conviction was there affirmed, October 7, 1890. But we may, as doubtless the Circuit Court did, take judicial notice of those facts. That court said: "The record in this case discloses no exception that is not wholly ...