BY-LAW VOID.

The Court will declare the by-law of the School Committee

unconstitutional and illegal, although there are no express words of

prohibition in the Constitution and Laws.

It is hardly necessary to say anything in support of this proposition.

Slavery was abolished in Massachusetts, under the Declaration of

Rights in our Constitution, without any specific words of abolition in

that instrument, or in any subsequent legislation.[44] The same words

which are potent to destroy Slavery must be equally potent against

any institution founded on Inequality or Caste. The case of _Boston_

v. _Shaw_ (1 Metcalf, 130), to which reference has been already made,

where a by-law of the city was set aside as unequal and unreasonable,

and therefore void, affords another example of the power which I here

invoke. But authorities are not needed. The words of the Constitution

are plain, and it will be the duty of the Court to see that they are

applied to the discrimination now waiting for judgment.

[44] Commonwealth _v._ Aves, 18 Pick. R., 210.

The Court might justly feel delicacy, if called to revise an act of

the Legislature. But it is simply the action of a local committee that

they are to overrule. They may also be encouraged by the circumstance

that it is only to the schools of Boston that their decision can be

applicable. Already the other towns have voluntarily banished Caste.

Banishing it from the schools of Boston, the Court will bring them

into much-desired harmony with the schools of other towns, and with

the whole system of Common Schools. I am unwilling to suppose that

there can be any hesitation or doubt. If any should arise, there is a

rule of interpretation which is plain. According to familiar practice,

judicial interpretation is made always in favor of life or liberty. So

here the Court should incline in favor of Equality, that sacred right

which is the companion of those other rights. In proportion to the

importance of this right will the Court be solicitous to vindicate and

uphold it. And in proportion to the opposition which it encounters from

prejudices of society will the Court brace themselves to this task. It

has been pointedly remarked by Rousseau, that "it is precisely because

the force of things tends always to destroy Equality that the force of

legislation should always tend to maintain it."[45] In similar spirit,

and for the same reason, the Court should always tend to maintain

Equality.

[45] Contrat Social, Liv. II. ch. 11.

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