The Legislature of Massachusetts, in entire harmony with the
Constitution, has made no discrimination of race or color in the
establishment of Common Schools.
Any such discrimination by the Laws would be unconstitutional and
void. But the Legislature has been too just and generous, too mindful
of the Bill of Rights, to establish any such privilege of _birth_.
The language of the statutes is general, and applies equally to all
children, of whatever race or color.
The provisions of the Law are entitled, _Of the Public Schools_,[26]
meaning our Common Schools. To these we must look to ascertain what
constitutes a Public School. Only those established in conformity
with the Law can be legally such. They may, in fact, be more or less
public; yet, if they do not come within the terms of the Law, they do
not form part of the beautiful system of our Public Schools,--they are
not Public Schools, or, as I prefer to call them, Common Schools. The
two terms are used as identical; but the latter is that by which they
were earliest known, while it is most suggestive of their comprehensive
character. A "common" in law is defined to be "_open ground equally
used_ by many persons"; and the same word, when used as an adjective,
is defined by lexicographers as "belonging equally to many or to the
public," thus asserting Equality.
[26] Revised Statutes, Ch. 23.
If we examine the text of this statute, we shall find nothing to
sustain the rule of exclusion which has been set up. The first
section provides, that "in every town, containing fifty families or
householders, there shall be kept in each year, at the charge of the
town, by a teacher or teachers of competent ability and good morals,
_one school_ for the instruction of _children_ in Orthography, Reading,
Writing, English Grammar, Geography, Arithmetic, and Good Behavior,
for the term of six months, or two or more such schools, for terms of
time that shall together be equivalent to six months." The second,
third, and fourth sections provide for the number of such schools in
towns having respectively one hundred, one hundred and fifty, and five
hundred families or householders. There is no language recognizing
any discrimination of race or color. Thus, in every town, the
schools, whether one or more, are "for the instruction of _children_"
generally,--not children of any particular class or race or color, but
children,--meaning the children of the town where the schools are.
The fifth and sixth sections provide a school, in certain cases, where
additional studies are to be pursued, which "shall be kept _for the
benefit of all the inhabitants_ of the town." The language here
recognizes no discrimination among the children, but seems directly to
exclude it.
In conformity with these sections is the peculiar phraseology of the
memorable Colonial law of 1647, founding Common Schools, "to the end
that learning may not be buried in the graves of our forefathers." This
law obliged townships having fifty householders to "forthwith appoint
one within their towns to teach _all such children as shall resort to
him_ to write and read."[27] Here again there is no discrimination
among the children. _All_ are to be taught.
[27] Charters and General Laws of the Colony and Province of
Massachusetts Bay, p. 186.
On this legislation the Common Schools of Massachusetts have been
reared. The section of the Revised Statutes,[28] and the statute of
1838,[29] appropriating small sums, in the nature of a contribution,
from the School Fund, for the support of Common Schools among the
Indians, do not interfere with this system. These have the anomalous
character of all the legislation concerning the Indians. It does not
appear, however, that separate schools are established by law among the
Indians, nor that the Indians are in any way excluded from the Common
Schools in their neighborhood.
[28] Chap. 23, sec. 68.
[29] Chap. 154.
I conclude, on this head, that there is but one Public School in
Massachusetts. This is the Common School, equally free to all the
inhabitants. There is nothing establishing an exclusive or separate
school for any particular class, rich or poor, Catholic or Protestant,
white or black. In the eye of the law there is but _one class_,
where all interests, opinions, conditions, and colors commingle in
harmony,--excluding none, therefore comprehending all.
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