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state court, and ultimately in this court by writ of error to protect any right secured or granted to the accused by the Constitution or laws of the United States and which has been denied to him in the highest court of the State in which the decision in respect to that right can be had. The fact that the courts of the State have on previous trials refused to recognize the validity of an alleged pardon given to the accused by the acting Governor of the State does not make a case under § 641, Rev. Stat., for the removal of the prosecution from the state court into the Circuit Court.

While the prior decisions of this court determining the scope of § 641, Rev. Stat., had reference to discrimination against negroes because of their race, the rules announced equally apply where it exists as to the white race; § 641 as well as the Fourteenth Amendment is for the benefit of all of either race whose cases are embraced by its provisions and not alone for the benefit of the African race.

Where the highest court of the State has declared that the action of the trial court in refusing to quash the indictment or the panel of petit jurors cannot under the laws of the State be reviewed by any appellate court, although the motion to quash was based on Federal grounds, then after the highest appellate court of the State has disposed of the matters of which it may take cognizance, a writ of error will run from this court to the highest court in the State in which the decision of the Federal question may be had; and upon such writ of error this court can review the judgment of the trial court, and will exercise such jurisdiction as may be necessary to vindicate any Federal right, privilege or immunity specially set up and denied.

Where this court holds that a case cannot be removed under § 641 from the state court into the Circuit Court it will not pass upon the merits of any Federal question which may arise in the case.

THESE cases arise out of a criminal prosecution begun in one of the courts of Kentucky and, after several trials, removed on the petition of the accused, Caleb Powers, into the Circuit Court of the United States for the Eastern District of Kentucky.

The principal question to be determined is whether the prosecution was removable from the state court.

After referring to the indictment and to the transfer of the prosecution into the Circuit Court of the United States, the petition for removal alleged that the accused was within the jurisdiction of the United States and of the Commonwealth of Kentucky; that he was and all of his life had been a citizen of the United States, and of that Commonwealth, and as such citizen was entitled to enforce in the judicial tribunals of Kentucky,

on the trial and final disposition of said prosecution, all equal civil rights and equal protection of laws secured to him by the provision of the Fourteenth Amendment that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." He also claimed the rights secured by section 1977 of the Revised Statutes of the United States, providing, "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other;" as well as those secured by the act of Congress of March 1, 1875, 18 Stat. 335, the preamble of which declares that: "Whereas, it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law."

The petition then refers to the arrest of the accused on the ninth of March, 1900, upon the charge of being an accessory before the fact to the willful murder of William Goebel, and alleges that on the tenth of March, 1900, and prior to the finding and reporting of the indictment against the accused, "William S. Taylor, who was then the duly and legally elected, qualified, actual and acting Governor of the State of Kentucky, and had in his actual possession and under his actual control the office and executive mansion prepared by said State for its Governor, and all the books, papers, records, and archives belonging thereto, in due form of law duly and legally granted and de

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livered to your petitioner, and your petitioner accepted from him, a full, complete, absolute and unconditional pardon, release, and acquittance of the identical charge against him in said indictment, and the charge now pending in said prosecution against your petitioner in said Scott Circuit Court and under which your petitioner is now in custody; that said Taylor at the time he granted said pardon had the right and authority, under the constitution and laws of Kentucky, to grant same; that your petitioner accepted said pardon, and from the time same was granted he had claimed, and he now claims, the full benefit and effect thereof and his liberty thereunder. That on the day said pardon was granted him it was, by said Taylor as Governor aforesaid, duly entered on the executive journal kept in his office, and a certificate thereof was duly and in due form of law and as required by law, issued and delivered to him, duly executed by said Governor and the Secretary of said State, and placed in your petitioner's possession, and same was by your petitioner accepted. Your petitioner further states that at the time the said pardon was granted to him by his Excellency, the said William S. Taylor and subsequent thereto, the said William S. Taylor was, and prior thereto he had been, recognized, regarded, and treated as the duly elected, actual and acting Governor of the State of Kentucky by the Executive power and Executive Departments of the United States Government, including the President, the Attorney General and the Postmaster General, and by the postmaster at Frankfort, Kentucky;" that "for said State to hold him in custody, or to try or to require him to be tried in any one of its courts for the offense alleged against him in and by said indictment, since the granting and acceptance of said pardon and the issuance and acceptance of the certificate thereof, is a denial to him of the equal protection of the laws and the equal civil rights to which he is entitled under and as provided for in and by the portions of said Amendment to the Constitution of the United States above copied, and by said section of said Revised Statutes, and by said act of Congress;" and, that "notwithstanding the granting and ac

ceptance of said pardon, the issuance and acceptance of said certificate, the fact that the said William S. Taylor was the Governor of Kentucky when said pardon was granted and when said certificate was issued, and was then recognized as such Governor by said executive officers of the United States, that he cannot enforce in the said Scott Circuit Court in which said prosecution is pending, or in that part of the State in which said Scott County is located, or in any court, judicial tribunal or place of the said State, the equal civil rights and the equal protection of the laws secured to him by each and all of the three portions of said Amendment copied above, and by said section of the Revised Statutes of the United States and by said act of Congress for the reasons now set forth."

The accused here refers to the three trials to which he was subjected, and after stating that he was confined in the county jail, without bail, and awaiting trial, proceeds in his petition: "That at each of said trials your petitioner presented to said Scott Circuit Court said certificate of pardon, and pleaded and offered in evidence said pardon and said certificate as a bar and complete defense to said prosecution and the trial and conviction of your petitioner under said indictment, but at each of said trials the said trial court overruled said pleas and refused to admit said pardon and certificate as evidence, and held and adjudged that said pardon and certificate were null and void and of no effect whatever, and in each of said trials the said holding of the trial court in reference to said pardon and certificate was duly excepted to and made one of the grounds which was presented and on which a reversal was asked by said Court of Appeals on the trial of each one of said appeals heretofore mentioned, and on each one of said appeals your petitioner contended that said pardon and certificate entitled him to an acquittal of the charge contained in said indictment, but the said Court of Appeals on the trial and final disposition of each one of said appeals failed and refused to hold that said pardon and certificate authorized your petitioner's acquittance of said charge; instead, that court, as the said trial court had

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done, held that said pardon and certificate were and are null and void and of no effect whatever. The holding of said Court of Appeals on the trial of each of said appeals was reduced to writing, and each holding as prepared and ordered by said Court of Appeals has been, by the official reporter of that court, under the court's direction, caused to be printed in, and is now a part of, the official printed reports of said court, and all of said holdings are now in full force and effect as, and they in fact are, the laws of said State in this case, and are binding upon and will have to control this honorable court. That the instances named are the only instances in which said Court of Appeals or any trial court of said State ever held any pardon and certificate thereof, granted, entered and issued by any Governor of Kentucky, to be void and of no effect. That in consequence of the action and holdings of said trial court and said Court of Appeals above stated, this honorable court cannot, and, should this case be retried in this honorable court, could not allow your petitioner to plead or introduce said pardon and certificate as evidence as a defense to the said charges contained in said indictment against him, and could not allow your petitioner his liberty and acquittal under and by virtue of said pardon and certificate, or allow said pardon and certificate to have any effect whatever in your petitioner's behalf, but instead is and will be bound in consequence of said laws to hold said pardon and certificate null and void and of no effect whatever."

In the second paragraph of his petition for removal the accused states that he is a citizen of the United States and of Kentucky, and as such is entitled to enforce in the judicial tribunals of the State the equal civil rights and the equal protection of the law secured to him by the above constitutional provisions and statutes.

His petition then alleges: "But your petitioner states that he is denied and cannot enforce in the judicial tribunals of this State and in the part of the State where this action is pending, the rights secured to him by said laws and each of said laws,