ARGUMENT BEFORE THE SUPREME COURT OF MASSACHUSETTS, IN THE CASE
OF SARAH C. ROBERTS _v._ THE CITY OF BOSTON, DECEMBER 4,
1849.
This argument, though addressed to the Supreme Court of Massachusetts,
is mainly national and universal in topics, so that it is applicable
wherever, especially in our country, any discrimination in educational
opportunities is founded on race or color. It is a vindication of Equal
Rights in Common Schools. The term "Equality before the Law" was here
for the first time introduced into our discussions. It is not found in
the Common Law, nor until recently in the English language. It is a
translation from the French, whence Mr. Sumner took it.
The Supreme Court heard the argument, and in their opinion complimented
the advocate; but they did not take the responsibility of annulling
the unjust discrimination. After stating the claim of Equality before
the Law, Chief-Justice Shaw reduced it to very small proportions,
when he said that it meant "only that the rights of all, as they are
settled and regulated by law, are equally entitled to the paternal
consideration and protection of the law for their maintenance and
security."[11] This made it mean nothing; but such was the decision.
The _victrix causa_ was not less odious to Mr. Sumner, who never ceased
to regret the opportunity lost by the Court of contributing an immortal
precedent to the recognition and safeguard of human rights.
The error of the Court was repaired by the Legislature of
Massachusetts, which in 1855 enacted as follows:--
"In determining the qualifications of scholars to be admitted into
any Public School or any District School in this Commonwealth,
no distinction shall be made on account of the race, color, or
religious opinions of the applicant or scholar."[12]
[11] Roberts _v._ City of Boston, 5 Cushing R., 206.
[12] General Laws of Massachusetts, 1855, Ch. 256, sec. 1.
By other sections, the child excluded on such account was entitled to
"damages therefor in an action of tort," with a bill of discovery to
obtain evidence. Then came this supplementary protection:--
"Every person belonging to the School Committee under whose rules
or directions any child shall be excluded from such school, and
every teacher of any such school, shall, on application by the
parent or guardian of any such child, state in writing the grounds
and reasons of such exclusion."
Since this legislation, Equal Rights have prevailed in the Common
Schools of Massachusetts, and nobody would go back to the earlier
system.
Associated with Mr. Sumner in this case was Robert Morris, Esq., a
colored lawyer.