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Page:Harvard Law Review Volume 1.djvu/318

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although the most palpable errors appear upon the face of the record, yet, if the federal question has been rightly determined, the judgment cannot be reversed. Such is the rule clearly deducible from the limitations set upon the federal judiciary at its creation and preserved ever since, and such is the rule consistently laid down and acted upon in the decided cases. Murdock v. City of Memphis, 20 Wall. 590; Bonaparte v. Tax Court, 104 U. S. 592. The sole question then presented to the Supreme Court in the present case, the only question which it had authority to decide, the question on the determination of which alone the course to be pursued depended, was whether or not the courts of Illinois had wrongly deprived the petitioners of a right claimed and in fact secured to them by the Constitution of the United States.

The violation alleged of the rights claimed appears to have been twofold; that the statute under which the jury was selected was unconstitutional, and that the trial judge disregarded their rights. But while the petitioners claimed that the statute was unconstitutional and that the course of the trial judge was in violation of their rights, it does not appear to have been questioned but that Judge Gary’s acts were simply in execution of the statute; no claim was made that its provisions were disregarded or disobeyed, and in no proper sense does any question as to its construction appear to have been raised. It might be that judge Gary decided erroneously the matters which the statute referred to him for decision, and if the Constitution of the United States guaranteed the accused a correct decision, this error would be a violation of constitutional rights. As the case stood, therefore, the exact question was, whether the accused had rights under the federal Constitution which a statute like that of Illinois would violate or which an erroneous decision by the trial court in executing such a law would violate, and if so whether those rights were in fact violated.

The rights asserted were claimed to be secured by Articles 4–6, and Article 14, Sect. 1, of the Amendments. The real reliance, however, must be on the Fourteenth Amendment, for it has long been settled that the first ten amendments apply only to the federal government, and the argument that their provisions are now, by Article 14, made limitations on the several States, is shortly answered by the consideration that, as the only rights and immunities secured by them are to protection against the United States, they are, while properly described as privileges and immunities