Ladies and Gentlemen:
We have met for the purpose of saying a few words about the recent
decision of the Supreme Court, in which that tribunal has held the first
and second sections of the Civil Rights Act to be unconstitutional; and
so held in spite of the fact that for years the people of the North
and South have, with singular unanimity, supposed the Act to be
constitutional--supposed that it was upheld by the 13th and 14th
Amendments,--and so supposed because they knew with certainty the
intention of the framers of the amendments. They knew this intention,
because they knew what the enemies of the amendments and the enemies of
the Civil Rights Act claimed was the intention. And they also knew what
the friends of the amendments and the law admitted the intention to
be. The prejudices born of ignorance and of slavery had died or fallen
asleep, and even the enemies of the amendments and the law had accepted
the situation.
But I shall speak of the decision as I feel, and in the same manner as I
should speak even in the presence of the Court. You must remember that
I am not attacking persons, but opinions--not motives, but reasons--not
judges, but decisions.
The Supreme Court has decided:
1. That the first and second sections of the Civil Rights Act of March
1, 1875, are unconstitutional, as applied to the States--not being
authorized by the 13th and 14th Amendments.
2. That the 14th Amendment is prohibitory upon the States only, and the
legislation forbidden to be adopted by Congress for enforcing it, is
not "direct" legislation, but "corrective,"--such as may be necessary
or proper for counteracting and restraining the effect of laws or acts
passed or done by the several States.
3. That the 13th Amendment relates only to slavery and involuntary
servitude, which it abolishes.
4. That the 13th Amendment establishes universal freedom in the United
States.
5. That Congress may probably pass laws directly enforcing its
provisions.
6. That such legislative power in Congress extends only to the subject
of slavery, and its incidents.
7. That the denial of equal accommodations in inns, public conveyances
and places of public amusement, imposes no badge of slavery or
involuntary servitude upon the party, but at most infringes rights which
are protected from State aggression by the 14th Amendment.
8. The Court is uncertain whether the accommodations and privileges
sought to be protected by the first and second sections of the Civil
Rights Act are or are not rights constitutionally demandable,--and if
they are, in what form they are to be protected.
9. Neither does the Court decide whether the law, as it stands, is
operative in the Territories and the District of Columbia.
10. Neither does the Court decide whether Congress, under the commercial
power, may or may not pass a law securing to all persons equal
accommodations on lines of public conveyance between two or more States.
11. The Court also holds, in the present case, that until some State law
has been passed, or some State action through its officers or agents has
been taken adverse to the rights of citizens sought to be protected
by the 14th Amendment, no legislation of the United States under said
amendment, or any proceeding under such legislation, can be called into
activity, for the reason that the prohibitions of the amendment are
against State laws and acts done under State authority. The essence of
said decision being, that the managers and owners of inns, railways, and
all public conveyances, of theatres and all places of public amusement,
may discriminate on account of race, color, or previous condition of
servitude, and that the citizen so discriminated against, is without
redress.
This decision takes from seven millions of people the shield of the
Constitution. It leaves the best of the colored race at the mercy of
the meanest of the white. It feeds fat the ancient grudge that vicious
ignorance bears toward race and color. It will be approved and quoted
by hundreds of thousands of unjust men. The masked wretches who, in the
darkness of night, drag the poor negro from his cabin, and lacerate with
whip and thong his quivering flesh, will, with bloody hands, applaud
the Supreme Court. The men who, by mob violence, prevent the negro from
depositing his ballot--who with gun and revolver drive him from the
polls, and those who insult with vile and vulgar words the inoffensive
colored girl, will welcome this decision with hyena joy. The basest will
rejoice--the noblest will mourn.
But even in the presence of this decision, we must remember that it is
one of the necessities of government that there should be a court of
last resort; and while all courts will more or less fail to do justice,
still, the wit of man has, as yet, devised no better way. Even after
reading this decision, we must take it for granted that the judges
of the Supreme Court arrived at their conclusions honestly and in
accordance with the best light they had. While they had the right to
render the decision, every citizen has the right to give his opinion as
to whether that decision is good or bad. Knowing that they are liable
to be mistaken, and honestly mistaken, we should always be charitable
enough to admit that others may be mistaken; and we may also take
another step, and admit that we may be mistaken about their being
mistaken. We must remember, too, that we have to make judges out of men,
and that by being made judges their prejudices are not diminished and
their intelligence is not increased. No matter whether a man wears a
crown or a robe or a rag. Under the emblem of power and the emblem
of poverty, the man alike resides. The real thing is the man--the
distinction often exists only in the clothes. Take away the crown--there
is only a man. Remove the robe--there remains a man. Take away the rag,
and we find at least a man.
There was a time in this country when all bowed to a decision of the
Supreme Court. It was unquestioned. It was regarded as "a voice from
on high." The people heard and they obeyed. The Dred Scott decision
destroyed that illusion forever. From that day to this the people have
claimed the privilege of putting the decisions of the Supreme Court in
the crucible of reason. These decisions are no longer exempt from honest
criticism. While the decision remains, it is the law. No matter how
absurd, no matter how erroneous, no matter how contrary to reason and
justice, it remains the law. It must be overturned either by the Court
itself (and the Court has overturned hundreds of its own decisions), or
by legislative action, or by an amendment to the Constitution. We do not
appeal to armed revolution. Our Government is so framed that it provides
for what may be called perpetual peaceful revolution. For the redress
of any grievance, for the purpose of righting any wrong, there is the
perpetual remedy of an appeal to the people.
We must remember, too, that judges keep their backs to the dawn. They
find what has been, what is, but not what ought to be. They are tied and
shackled by precedent, fettered by old decisions, and by the desire to
be consistent, even in mistakes. They pass upon the acts and words of
others, and like other people, they are liable to make mistakes. In
the olden time we took what the doctors gave us, we believed what the
preachers said; and accepted, without question, the judgments of the
highest court. Now it is different. We ask the doctor what the medicine
is, and what effect he expects it to produce. We cross-examine the
minister, and we criticise the decision of the Chief-Justice. We do
this, because we have found that some doctors do not kill, that some
ministers are quite reasonable, and that some judges know something
about law. In this country, the people are the sovereigns. All
officers--including judges--are simply their servants, and the sovereign
has always the right to give his opinion as to the action of his agent.
The sovereignty of the people is the rock upon which rests the right of
speech and the freedom of the press.
Unfortunately for us, our fathers adopted the common law of England--a
law poisoned by kingly prerogative--by every form of oppression, by the
spirit of caste, and permeated, saturated, with the political heresy
that the people received their rights, privileges and immunities from
the crown. The thirteen original colonies received their laws, their
forms, their ideas of justice, from the old world. All the judicial,
legislative, and executive springs and sources had been touched and
tainted.
In the struggle with England, our fathers justified their rebellion
by declaring that Nature had clothed all men with the right to life,
liberty, and the pursuit of happiness. The moment success crowned their
efforts, they changed their noble declaration of equal rights for all,
and basely interpolated the word "white." They adopted a Constitution
that denied the Declaration of Independence--a Constitution that
recognized and upheld slavery, protected the slave-trade, legalized
piracy upon the high seas--that demoralized, degraded, and debauched
the nation, and that at last reddened with brave blood the fields of the
Republic.
Our fathers planted the seeds of injustice, and we gathered the harvest.
In the blood and flame of civil war, we retraced our fathers' steps. In
the stress of war, we implored the aid of Liberty, and asked once more
for the protection of Justice. We civilized the Constitution of our
fathers. We adopted three Amendments--the 13th, 14th and 15th--the
Trinity of Liberty.
Let us examine these amendments:
"Neither slavery, nor involuntary servitude, except as a punishment
for crime whereof the party shall have been duly convicted, shall exist
within the United States or any place subject to their jurisdiction.
"Congress shall have power to enforce this article by appropriate
legislation."
Before the adoption of this amendment, the Constitution had always been
construed to be the perfect shield of slavery. In order that slavery
might be protected, the slave States were considered as sovereign.
Freedom was regarded as a local prejudice, slavery as the ward of the
Nation, the jewel of the Constitution. For three-quarters of a century,
the Supreme Court of the United States exhausted judicial ingenuity in
guarding, protecting and fostering that infamous institution. For the
purpose of preserving that infinite outrage, words and phrases were
warped, and stretched, and tortured, and thumbscrewed, and racked.
Slavery was the one sacred thing, and the Supreme Court was its
constitutional guardian.
To show the faithfulness of that tribunal, I call your attention to the
3d clause of the 2d section of the 4th article of the Constitution:
"No person held to service or labor in any State under the laws thereof,
escaping to another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be
delivered up on the claim of the party to whom such service or labor may
be due."
The framers of the Constitution were ashamed to use the word "slave,"
and thereupon they said "person." They were ashamed to use the word
"slavery," and they evaded it by saying, "held to service or labor."
They were ashamed to put in the word "master," so they called him "the
party to whom service or labor may be due."
How can a slave owe service? How can a slave owe labor? How could a
slave make a contract? How could the master have a legal claim against
a slave? And yet, the Supreme Court of the United States found no
difficulty in upholding the Fugitive Slave Law by virtue of that clause.
There were hundreds of decisions declaring that Congress had power to
pass laws to carry that clause into effect, and it was carried into
effect.
You will observe the wording of this clause:
"No person held to service or labor in any State under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be
delivered up on the claim of the party to whom such service or labor may
be due."
To whom was this clause directed? To individuals or to States? It
expressly provides that the "person" held to service or labor shall not
be discharged from such service or labor in consequence of any law or
regulation in the "State" to which he has fled. Did that law apply to
States, or to individuals?
The Supreme Court held that it applied to individuals as well as to
States. Any "person," in any State, interfering with the master who
was endeavoring to steal the person he called his slave, was liable
to indictment, and hundreds and thousands were indicted, and hundreds
languished in prisons because they were noble enough to hold in infinite
contempt such infamous laws and such infamous decisions. The best men in
the United States--the noblest spirits under the flag--were imprisoned
because they were charitable, because they were just, because they
showed the hunted slave the path to freedom, and taught him where to
find amid the glittering host of heaven the blessed Northern Star.
Every fugitive slave carried that clause with him when he entered a free
State; carried it into every hiding place; and every Northern man was
bound, by virtue of that clause, to act as the spy and hound of slavery.
The Supreme Court, with infinite ease, made a club of that clause with
which to strike down the liberty of the fugitive and the manhood of the
North.
In the Dred Scott decision it was solemnly decided that a man of African
descent, whether a slave or not, was not, and could not be, a citizen
of a State or of the United States. The Supreme Court held on the even
tenor of its way, and in the Rebellion that tribunal was about the last
fort to surrender.
The moment the 13th Amendment was adopted, the slaves became freemen.
The distinction between "white" and "colored" vanished. The negroes
became as though they had never been slaves--as though they had always
been free--as though they had been white. They became citizens--they
became a part of "the people," and "the people" constituted the
State, and it was the State thus constituted that was entitled to the
constitutional guarantee of a republican government.
These freed men became citizens--became a part of the State in which
they lived.
The highest and noblest definition of a State, in our Reports, was given
by Justice Wilson, in the case of Chisholm, &c., vs. Georgia;
"By a State, I mean a complete body of free persons, united for their
common benefit, to enjoy peaceably what is their own, and to do justice
to others."
Chief Justice Chase declared that:
"The people, in whatever territory dwelling, whether temporarily or
permanently, or whether organized under regular government, or united by
less definite relations, constitute the State."
Now, if the people, the moment the 13th Amendment was adopted were
all free, and if these people constituted the State; if, under
the Constitution of the United States, every State is guaranteed a
republican government, then it is the duty of the General Government to
see to it that every State has such a government. If distinctions are
made between free men on account of race or color, the government is not
republican. The manner in which this guarantee of a republican form of
government is to be enforced or made good, must be left to the wisdom
and discretion of Congress.
The 13th Amendment not only destroyed, but it built. It destroyed the
slave-pen, and on its site erected the temple of Liberty. It did not
simply free slaves--it made citizens. It repealed every statute that
upheld slavery. It erased from every Report every decision against
freedom. It took the word "white" from every law, and blotted from the
Constitution all clauses acknowledging property in man.
If, then, all the people in each State, were, by virtue of the 13th
Amendment, free, what right had a majority to enslave a minority? What
right had a majority to make any distinctions between free men? What
right had a majority to take from a minority any privilege, or any
immunity, to which they were entitled as free men? What right had the
majority to make that unequal which the Constitution made equal?
Not satisfied with saying that slavery should not exist, we find in the
amendment the words "nor involuntary servitude." This was intended to
destroy every mark and badge of legal inferiority.
Justice Field upon this very question, says:
"It is, however, clear that the words 'involuntary servitude' include
something more than slavery, in the strict sense of the term. They
include also serfage, vassalage, villanage, peonage, and all other forms
of compulsory service for the mere benefit or pleasure of others. Nor
is this the full import of the term. The abolition of slavery and
involuntary servitude was intended to make every one born in this
country a free man, and as such to give him the right to pursue the
ordinary avocations of life without other restraint than such as affects
all others, and to enjoy equally with them the fruits of his labor.
A person allowed to pursue only one trade or calling, and only in one
locality of the country, would not be, in the strict sense of the term,
in a condition of slavery, but probably no one would deny that he would
be in a condition of servitude. He certainly would not possess the
liberties, or enjoy the privileges of a freeman."
Justice Field also quotes with approval the language of the counsel for
the plaintiffs in the case:
"Whenever a law of a State, or a law of the United States, makes a
discrimination between classes of persons which deprives the one class
of their freedom or their property, or which makes a caste of them, to
subserve the power, pride, avarice, vanity or vengeance of others--there
involuntary servitude exists within the meaning of the 13th Amendment."
To show that the framers of the 13th Amendment intended to blot out
every form of slavery and servitude, I call attention to the Civil
Rights Act, approved April 9, 1866, which provided, among other things,
that:
"All persons born in the United States, and not subject to any foreign
power--excluding Indians not taxed--are citizens of the United States;
and such citizens, of every race and color, without regard to any
previous condition of slavery or involuntary servitude, are entitled to
the full and equal benefit of all laws and proceedings for the security
of person and property enjoyed by white citizens, and shall be subject
to like punishments, pains and penalties--and to none other--any
law, statute, ordinance, regulation or custom to the contrary
notwithstanding; and they shall have the same rights in every State and
Territory of the United States as white persons."
The Supreme Court, in _The Slaughter-House Cases,_ (16 Wallace, 69) has
said that the word servitude has a larger meaning than the word slavery.
"The word 'servitude' implies subjection to the will of another contrary
to the common right." A man is in a state of involuntary servitude when
he is forced to do, or prevented from doing, a thing, not by the law of
the State, but by the simple will of another. He who enjoys less than
the common rights of a citizen, he who can be forced from the public
highway at the will of another, who can be denied entrance to the cars
of a common carrier, is in a state of servitude.
The 13th Amendment did away with slavery not only, and with involuntary
servitude, but with every badge and brand and stain and mark of slavery.
It abolished forever distinctions on account of race and color.
In the language of the Supreme Court:
"It was the obvious purpose of the 13th Amendment to forbid all shades
and conditions of African slavery."
And to that I add, it was the obvious purpose of that amendment to
forbid all shades and conditions of slavery, no matter of what sort or
kind--all marks of legal inferiority. Each citizen was to be absolutely
free. All his rights complete, whole, unmaimed and unabridged.
From the moment of the adoption of that amendment, the law became
color-blind. All distinctions on account of complexion vanished. It took
the whip from the hand of the white man, and put the nation's flag above
the negro's hut. It gave horizon, scope and dome to the lowest life. It
stretched a sky studded with stars of hope above the humblest head.
The Supreme Court has admitted, in the very case we are now discussing,
that:
"Under the 13th Amendment the legislation meaning the legislation of
Congress--so far as necessary or proper to eradicate all forms and
incidents of slavery and involuntary servitude, may be direct and
primary, operating upon the acts of individuals, whether sanctioned by
State legislation or not."
Here we have the authority for dealing with individuals.
The only question then remaining is, whether an individual, being the
keeper of a public inn, or the agent of a railway corporation,
created by a State, can be held responsible in a Federal Court for
discriminating against a citizen of the United States on account of
race, color, or previous condition of servitude. If such discrimination
is a badge of slavery, or places the party discriminated against in a
condition of involuntary servitude, then the Civil Rights Act may be
upheld by the 13th Amendment.
In The United Slates vs. Harris, 106 U. S., 640, the Supreme Court says:
"It is clear that the 13th Amendment, besides abolishing forever slavery
and involuntary servitude within the United States, gives power to
Congress to protect all citizens from being in any way subjected to
slavery or involuntary servitude, except for the punishment of crime,
and in the enjoyment of that freedom which it was the object of the
amendment to secure."
This declaration covers the entire case.