"The 13th Amendment is not confined to African slavery. It is general
and universal in its application--prohibiting the slavery of white men
as well as black men, and not prohibiting mere slavery in the strict
sense of the term, but involuntary servitude in every form." 16 Wallace,
90.
The 13th Amendment declares that neither slavery nor involuntary
servitude shall exist. Who must see to it that this declaration is
carried out? There can be but one answer. It is the duty of Congress.
At last the question narrows itself to this: Is a citizen of the United
States, when denied admission to public inns, railway cars and
theatres, on account of his race or color, in a condition of involuntary
servitude? If he is, then he is under the immediate protection of the
General Government, by virtue of the 13th Amendment; and the Civil
Rights Act is clearly constitutional.
If excluded from one inn, he may be from all; if from one car, why not
from all? The man who depends for the preservation of his privileges
upon a conductor, instead of the Constitution, is in a condition of
involuntary servitude. He who depends for his rights--not upon the
laws of the land, but upon a landlord, is in a condition of involuntary
servitude.
The framers of the 13th Amendment knew that the negro would be
persecuted on account of his race and color--knew that many of the
States could not be trusted to protect the rights of the colored man;
and for that reason, the General Government was clothed with power to
protect the colored people from all forms of slavery and involuntary
servitude.
Of what use are the declarations in the Constitution that slavery and
involuntary servitude shall not exist, and that all persons born or
naturalized in the United States shall be citizens--not only of the
United States, but of the States in which they reside--if, behind
these declarations, there is no power to act--no duty for the General
Government to discharge?
Notwithstanding the 13th Amendment had been adopted--notwithstanding
slavery and involuntary servitude had been legally destroyed--it was
found that the negro was still the helpless victim of the white man.
Another amendment was needed; and all the Justices of the Supreme Court
have told us why the 14th Amendment was adopted.
Justice Miller, speaking for the entire court, tells us that:
"In the struggle of the civil war, slavery perished, and perished as a
necessity of the bitterness and force of the conflict."
That:
"When the armies of freedom found themselves on the soil of slavery,
they could do nothing else than free the victims whose enforced
servitude was the foundation of the war."
He also admits that:
"When hard pressed in the contest, the colored men (for they proved
themselves men in that terrible crisis) offered their services, and were
accepted, by thousands, to aid in suppressing the unlawful rebellion."
He also informs us that:
"Notwithstanding the fact that the Southern States had formerly
recognized the abolition of slavery, the condition of the slave, without
further protection of the Federal Government, was almost as bad as it
had been before."
And he declares that:
"The Southern States imposed upon the colored race onerous disabilities
and burdens--curtailed their rights in the pursuit of liberty and
property, to such an extent that their freedom was of little value,
while the colored people had lost the protection which they had received
from their former owners from motives of interest."
And that:
"The colored people in some States were forbidden to appear in the towns
in any other character than that of menial servants--that they were
required to reside on the soil without the right to purchase or
own it--that they were excluded from many occupations of gain and
profit--that they were not permitted to give testimony in the courts
where white men were on trial--and it was said that their lives were
at the mercy of bad men, either because laws for their protection were
insufficient, or were not enforced."
We are informed by the Supreme Court that, "under these circumstances,"
the proposition for the 14th Amendment was passed through Congress, and
that Congress declined to treat as restored to full participation in
the Government of the Union, the States which had been in insurrection,
until they ratified that article by a formal vote of their legislative
bodies.
Thus it will be seen that the rebel States were restored to the Union
by adopting the 14th Amendment. In order to become equal members of the
Federal Union, these States solemnly agreed to carry out the provisions
of that amendment.
The 14th Amendment provides that:
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States, and of the
State wherein they reside."
That is affirmative in its character. That affirmation imposes
the obligation upon the General Government to protect its citizens
everywhere. That affirmation clothes the Federal Government with power
to protect its citizens. Under that clause, the Federal arm can reach to
the boundary of the Republic, for the purpose of protecting the weakest
citizen from the tyranny of citizens or States. That clause is a
contract between the Government and every man--a contract wherein the
citizen promises allegiance, and the nation promises protection.
By this clause, the Federal Government adopted all the citizens of all
the States and Territories, including the District of Columbia, and
placed them under the shield of the Constitution--made each one a ward
of the Republic.
Under this contract, the Government is under direct obligation to the
citizen. The Government cannot shirk its responsibility by leaving
a citizen to be protected in his rights, as a citizen of the United
States, by a State. The obligation of protection is direct. The
obligation on the part of the citizen to the Government is direct. The
citizen cannot be untrue to the Government because his State is, The
action of the State under the 14th Amendment is no excuse for the
citizen. He must be true to the Government. In war, the Government has a
right to his service. In peace, he has the right to be protected.
If the citizen must depend upon the State, then he owes the first
allegiance to that government or power that is under obligation to
protect him. Then, if a State secedes from the Union, the citizen should
go with the State--should go with the power that protects.
That is not my doctrine. My doctrine is this: The first duty of the
General Government is to protect each citizen. The first duty of each
citizen is to be true--not to his State, but to the Republic.
This clause of the 14th Amendment made us all citizens of the United
States--all children of the Republic. Under this decision, the Republic
refuses to acknowledge her children. Under this decision of the Supreme
Court, they are left upon the doorsteps of the States. Citizens are
changed to foundlings.
If the 14th Amendment created citizens of the United States, the power
that created must define the rights of the citizens thus created, and
must provide a remedy where such rights are infringed. The Federal
Government speaks through its representatives--through Congress;
and Congress, by the Civil Rights Act, defined some of the rights,
privileges and immunities of a citizen of the United States--and
Congress provided a remedy when such rights and privileges were invaded,
and gave jurisdiction to the Federal courts.
No State, or the department of any State, can authoritatively define
the rights, privileges and immunities of a citizen of the United States.
These rights and immunities must be defined by the United States, and
when so defined, they cannot be abridged by State authority.
In the case of Bartemeyer vs. Iowa, 18 Wall., p. 140, Justice Field, in
a concurring opinion, speaking of the 14th Amendment, says:
"It grew out of the feeling that a nation which had been maintained by
such costly sacrifices was, after all, worthless, if a citizen could not
be protected in all his fundamental rights, everywhere--North and South,
East and West--throughout the limits of the Republic. The amendment
was not, as held in the opinion of the majority, primarily intended to
confer citizenship on the negro race. It had a much broader purpose.
It was intended to justify legislation extending the protection of the
National Government over the common rights of all citizens of the United
States, and thus obviate objection to the legislation adopted for the
protection of the emancipated race. It was intended to make it possible
for all persons--which necessarily included those of every race and
color--to live in peace and security wherever the jurisdiction of
the nation reached. It therefore recognized, if it did not create,
a national citizenship. This national citizenship is primary and not
secondary.".
I cannot refrain from calling attention to the splendor and nobility of
the truths expressed by Justice Field in this opinion.
So, Justice Field, in his dissenting opinion in what are known as _The
Slaughter-House Cases_, found in 16 Wallace, p. 95, still speaking of
the 14th Amendment, says:
"It recognizes in express terms--if it does not create--citizens of the
United States, and it makes their citizenship dependent upon the
place of their birth or the fact of their adoption, and not upon the
constitution or laws of any State, or the condition of their ancestry.
"A citizen of a State is now only a citizen of the United States residing
in that State. The fundamental rights, privileges and immunities which
belong to him as a free man and a free citizen of the United States, are
not dependent upon the citizenship of any State. * * *
"They do not derive their existence from its legislation, and cannot be
destroyed by its power."
What are "the fundamental rights, privileges and immunities" which
belong to a free man? Certainly the rights of all citizens of the United
States are equal. Their immunities and privileges must be the same.
He who makes a discrimination between citizens on account of color,
violates the Constitution of the United States.
Have all citizens the same right to travel on the highways of the
country? Have they all the same right to ride upon the railways created
by State authority? A railway is an improved highway. It was only by
holding that it was an improved highway that counties and States aided
in their construction. It has been decided, over and over again, that a
railway is an improved highway. A railway corporation is the creation
of a State--an agent of the State. It is under the control of the
State--and upon what principle can a citizen be prevented from using the
highways of a State on an equality with all other citizens?
These are all rights and immunities guaranteed by the Constitution of
the United States.
Now, the question is--and it is the only question--can these rights
and immunities, thus guaranteed and thus confirmed, be protected by the
General Government?
In the case of _The U. S. vs. Reese, et al._, 92 U. S., p. 207,
the Supreme Court decided, the opinion having been delivered by
Chief-Justice Waite, as follows:
"Rights and immunities created by, and dependent upon, the Constitution
of the United States can be protected by Congress. The form and the
manner of the protection may be such as Congress in the legitimate
exercise of its legislative discretion shall provide. This may be varied
to meet the necessities of the particular right to be protected."
This decision was acquiesced in by Justices Strong, Bradley, Swayne,
Davis, Miller and Field. Dissenting opinions were filed by Justices
Clifford and Hunt, but neither dissented from the proposition that:
"Rights and immunities created by or dependent upon the Constitution of
the United States can be protected by Congress," and that "the form and
manner of the protection may be such as Congress in the exercise of its
legitimate discretion shall provide."
So, in the same case, I find this language:
"It follows that the Amendment"--meaning the 15th--"has invested the
citizens of the United States with a new constitutional right, which
is within the protecting power of Congress. This, under the express
provisions of the second section of the Amendment, Congress may enforce
by appropriate legislation."
If the 15th Amendment invested the citizens of the United States with
a new constitutional right--that is, the right to vote--and if for that
reason that right is within the protecting power of Congress, then I
ask, if the 14th Amendment made certain persons citizens of the United
States, did such citizenship become a constitutional right? And is such
citizenship within the protecting power of Congress? Does citizenship
mean anything except certain "rights, privileges and immunities"?
Is it not an invasion of citizenship to invade the immunities or
privileges or rights belonging to a citizen? Are not, then, all the
immunities and privileges and rights under the protecting power of
Congress?
The 13th Amendment found the negro a slave, and made him a free man.
That gave to him a new constitutional right, and according to the
Supreme Court, that right is within the protecting power of Congress.
What rights are within the protecting power of Congress? All the rights
belonging to a free man.
The 14th Amendment made the negro a citizen. What then is under the
protecting power of Congress? All the rights, privileges and immunities
belonging to him as a citizen.
So, in the case of _Tennessee vs, Davis_, 100 U, S,, 263, the Supreme
Court, held that:
"The United States is a government whose authority extends over the
whole territory of the Union, acting upon all the States, and upon all
the people of all the States.
"No State can exclude the Federal Government from the exercise of any
authority conferred upon it by the Constitution, or withhold from it
for a moment the cognizance of any subject which the Constitution has
committed to it."
This opinion was given by Justice Strong, and acquiesced in by
Chief-Justice Waite, Justices Miller, Swayne, Bradley and Harlan.
So in the case of _Pensacola Tel. Co. vs. Western Union Tel. Co_., 96 U.
S., p. 10, the opinion having been delivered by Chief-Justice Waite, I
find this:
"The Government of the United States, within the scope of its power,
operates upon every foot of territory under its jurisdiction. It
legislates for the whole Nation, and is not embarrassed by State lines."
This was acquiesced in by Justices Clifford, Strong, Bradley, Swayne and
Miller.
So we are told by the entire Supreme Court in the case of _Tiernan vs.
Rynker_, 102 U. S., 126, that:
"When the subject to which the power applies is national in its
character, or of such a nature as to admit of uniformity of regulation,
the power is exclusive of State authority."
Surely the question of citizenship is "national in its character."
Surely the question as to what are the rights, privileges and immunities
of a citizen of the United States is "national in its character."
Unless the declarations and definitions, the patriotic paragraphs, and
the legal principles made, given, uttered and defined by the Supreme
Court are but a judicial jugglery of words, the Civil Rights Act is
upheld by the intent, spirit and language of the 14th Amendment.
It was found that the 13th Amendment did not protect the negro. Then the
14th was adopted. Still the colored citizen was trodden under foot. Then
the 15th was adopted. The 13th made him free, and, in my judgment, made
him a citizen, and clothed him with all the rights of a citizen. That
was denied, and then the 14th declared that he was a citizen. In my
judgment, that gave him the right to vote. But that was denied--then
the 15th was adopted, declaring that his right to vote should never be
denied.
The 13th Amendment made all free. It broke the chains, pulled up the
whipping-posts, overturned the auction-blocks, gave the colored mother
her child, put the shield of the Constitution over the cradle, destroyed
all forms of involuntary servitude, and in the azure heaven of our flag
it put the Northern Star.
The 14th Amendment made us all citizens. It is a contract between the
Republic and each individual--a contract by which the Nation agrees to
protect the citizen, and the citizen agrees to defend the Nation. This
amendment placed the crown of sovereignty on every brow.
The 15th Amendment secured the citizen in his right to vote, in his
right to make and execute the laws, and put these rights above the
power of any State. This amendment placed the ballot--the sceptre of
authority--in every sovereign hand.
We are told by the Supreme Court, in the case under discussion, that:
"We must not forget that the province and scope of the 13th and 14th
Amendments are different;" that the 13th Amendment "simply abolished
slavery," and that the 14th Amendment "prohibited the States from
abridging the privileges and immunities of citizens of the United
States; from depriving them of life, liberty or property, without due
process of law; and from denying to any the equal protection of the
laws."
We are told that:
"The amendments are different, and the powers of Congress under them are
different. What Congress has power to do under one it may not have power
to do under the other." That "under the 13th Amendment it has only to do
with slavery and its incidents;" but that "under the 14th Amendment
it has power to counteract and render nugatory all State laws or
proceedings which have the effect to abridge any of the privileges or
immunities of the citizens of the United States, or to deprive them of
life, liberty or property, without due process of law, or to deny to any
of them the equal protection of the laws."
Did not Congress have that power under the 13th Amendment? Could the
States, in spite of the 13th Amendment, deprive free men of life or
property without due process of law? Does the Supreme Court wish to be
understood, that until the 14th Amendment was adopted the States had
the right to rob and kill free men? Yet, in its effort to narrow and
belittle the 13th Amendment, it has been driven to this absurdity. Did
not Congress, under the 13th Amendment, have power to destroy slavery
and involuntary servitude? Did not Congress, under that amendment, have
the power to protect the lives, liberty and property of free men? And
did not Congress have the power "to render nugatory all State laws and
proceedings under which free men were to be deprived of life, liberty or
property, without due process of law"?
If Congress was not clothed with such power by the 13th Amendment, what
was the object of that amendment? Was that amendment a mere opinion, or
a prophecy, or the expression of a hope?
The 14th Amendment provides that:
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States. Nor shall
any State deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction the equal
protection of its laws."
We are told by the Supreme Court that Congress has no right to enforce
the 14th Amendment by direct legislation, but that the legislation under
that amendment can only be of a "corrective" character--such as may
be necessary or proper for counteracting and redressing the effect
of unconstitutional laws passed by the States. In other words, that
Congress has no duty to perform, except to counteract the effect of
unconstitutional laws by corrective legislation.
The Supreme Court has also decided, in the present case, that Congress
has no right to legislate for the purpose of enforcing these clauses
until the States shall have taken action. What action can the State
take? If a State passes laws contrary to these provisions or clauses,
they are void. If a State passes laws in conformity to these
provisions, certainly Congress is not called on to legislate. Under
what circumstances, then, can Congress be called upon to act by way
of "corrective" legislation, as to these particular clauses? What can
Congress do? Suppose the State passes no law upon the subject, but
allows citizens of the State--managers of railways, and keepers of
public inns, to discriminate between their passengers and guests on
account of race or color--what then?
Again, what is the difference between a State that has no law on the
subject, and a State that has passed an unconstitutional law? In other
words, what is the difference between no law and a void law? If the
"corrective" legislation of Congress is not needed where the State has
passed an unconstitutional law, is it needed where the State has passed
no law? What is there in either case to correct? Surely it requires no
particular legislation on the part of Congress to kill a law that never
had life.
The States are prohibited by the Constitution from making any
regulations of foreign commerce. Consequently, all regulations made by
the States are null and void, no matter what the motive of the States
may have been, and it requires no law of Congress to annul such laws or
regulations. This was decided by the Supreme Court of the United States,
long ago, in what are known as _The License Cases_. The opinion may be
found in the 5th of Howard, 583.
"The nullity of any act inconsistent with the Constitution, is produced
by the declaration that the Constitution is supreme."
This was decided by the Supreme Court, the opinion having been delivered
by Chief Justice Marshall, in the case of _Gibbons vs. Ogden_, 9 Wheat,
210.
The same doctrine was held in the case of _Henderson et al., vs. Mayor
of New York, et al._, 92 U. S. 272--the opinion of the Court being
delivered by Justice Miller.
So it was held in the case of _The Board of Liquidation vs. McComb_--2
Otto, 541.
"That an unconstitutional law will be treated by the courts as null and
void"--citing _Osborn vs. The Bank of the United States_, 9 Wheaton,
859, and _Davis vs. Gray_, 16 Wallace, 220.
Now, if the legislation of Congress must be "corrective," then I ask,
corrective of what? Certainly not of unconstitutional and void laws.
That which is void, cannot be corrected. That which is unconstitutional
is not the subject of correction. Congress either has the right to
legislate directly, or not at all; because indirect or corrective
legislation can apply only, according to the Supreme Court, to
unconstitutional and void laws that have been passed by a Stale; and
as such laws cannot be "corrected," the doctrine of "corrective
legislation" dies an extremely natural death.
A State can do one of three things: 1. It can pass an unconstitutional
law; 2. It can pass a constitutional law; 3. It can fail to pass any
law. The unconstitutional law, being void, cannot be corrected. The
constitutional law does not need correction. And where no law has been
passed, correction is impossible.
The Supreme Court insists that Congress can not take action until the
State does. A State that fails to pass any law on the subject, has not
taken action. This leaves the person whose immunities and privileges
have been invaded, with no redress except such as he may find in the
State Courts in a suit at law; and if the State Court takes the
same view that is apparently taken by the Supreme Court in this
case,--namely, that it is a "social question," one not to be regulated
by law, and not covered in any way by the Constitution--then,
discrimination can be made against citizens by landlords and railway
conductors, and they are left absolutely without remedy.
The Supreme Court asks, in this decision,
"Can the act of a mere individual--the owner of the inn, or public
conveyance, or place of amusement, refusing the accommodation, be
justly regarded as imposing any badge of slavery or servitude upon
the applicant, or only as inflicting an ordinary civil injury properly
cognizable by the laws of the State, and presumably subject to redress
by those laws, until the contrary appears?"
How is "the contrary to appear"? Suppose a person denied equal
privileges upon the railway on account of race and color, brings suit
and is defeated? And suppose the highest tribunal of the State holds
that the question is of a "social" character--what then? If, to use the
language of the Supreme Court, it is "an ordinary civil injury,
imposing no badge of slavery or servitude," then, no Federal question is
involved.
Why did not the Supreme Court tell us what may be done when "the
contrary appears"? Nothing is clearer than the intention of the Supreme
Court in this case--and that is, to decide that denying to a man equal
accommodations at public inns on account of race or color, is not an
abridgment of a privilege or immunity of a citizen of the United States,
and that such person, so denied, is not in a condition of involuntary
servitude, or denied the equal protection of the laws. In other
words--that it is a "social question."
I have been told by one who heard the decision when it was read from the
bench, that the following phrase was in the opinion:
"_There are certain physiological differences of race that cannot be
ignored_."
That phrase is a lamp, in the light of which the whole decision should
be read.
Suppose that in one of the Southern States, the negroes being in a
decided majority and having entire control, had drawn the color line,
had insisted that:
"There were certain physiological differences between the races that
could not be ignored," and had refused to allow white people to enter
their hotels, to ride in the best cars, or to occupy the aristocratic
portion of a theatre; and suppose that a white man, thrust from the
hotels, denied the entrance to cars, had brought his suit in the Federal
Court. Does any one believe that the Supreme Court would have intimated
to that man that "there is only a social question involved,--a question
with which the Constitution and laws have nothing to do, and that he
must depend for his remedy upon the authors of the injury"? Would a
white man, under such circumstances, feel that he was in a condition of
involuntary servitude? Would he feel that he was treated like an
underling, like a menial, like a serf? Would he feel that he was under
the protection of the laws, shielded like other men by the Constitution?
Of course, the argument of color is just as strong on one side as on the
other. The white man says to the black, "You are not my equal because
you are black;" and the black man can with the same propriety, reply,
"You are not my equal because you are white." The difference is just as
great in the one case as in the other. The pretext that this question
involves, in the remotest degree, a social question, is cruel, shallow,
and absurd.
The Supreme Court, some time ago, held that the 4th Section of the Civil
Rights Act was constitutional. That section declares that:
"No citizen possessing all other qualifications which are or maybe
prescribed by law, shall be disqualified for service as grand or petit
juror in any court of the United States or of any State, on account of
color or previous condition of servitude."
It also provides that:
"If any officer or other person charged with any duty in the selection
or summoning of jurors, shall exclude, or fail to summon, any citizen
in the case aforesaid, he shall, on conviction, be guilty of misdemeanor
and be fined not more than five hundred dollars."
In the case known as _Ex-parte vs. Virginia_--found in 100 U. S. 339--it
was held that an indictment against a State officer, under this section,
for excluding persons of color from the jury, could be sustained. Now,
let it be remembered, there was no law of the State of Virginia, by
virtue of which a man was disqualified from sitting on the jury by
reason of race or color. The officer did exclude, and did fail to
summon, a citizen on account of race or color or previous condition of
servitude. And the Supreme Court held:
"That whether the Statute-book of the State actually laid down any
such rule of disqualification or not, the State, through its officer,
enforced such rule; and that it was against such State action, through
its officers and agents, that the last clause of the section was
directed."
The Court further held that:
"This aspect of the law was deemed sufficient to divest it of any
unconstitutional character."
In other words, the Supreme Court held that the officer was an agent
of the State, although acting contrary to the statute of the State; and
that, consequently, such officer, acting outside of law, was amenable
to the Civil Rights Act, under the 14th Amendment, that referred only
to States. The question arises: Is a State responsible for the action of
its agent when acting contrary to law? In other words: Is the principal
bound by the acts of his agent, that act not being within the scope of
his authority? Is a State liable--or is the Government liable--for the
act of any officer, that act not being authorized by law?
It has been decided a thousand times, that a State is not liable for
the torts and trespasses of its officers. How then can the agent, acting
outside of his authority, be prosecuted under a law deriving its entire
validity from a constitutional amendment applying only to States? Does
an officer, by acting contrary to State law, become so like a State that
the word State, used in the Constitution, includes him?
So it was held in the case of _Neal vs. Delaware_,--103 U. S.,
307,--that an officer acting contrary to the laws of the State--in
defiance of those laws--would be amenable to the Civil Rights Act,
passed under an amendment to the Constitution now held applicable only
to States.
It is admitted, and expressly decided in the case of _The U. S. vs.
Reese et al._, (already quoted) that when the wrongful refusal at an
election is because of race, color, or previous condition of servitude,
Congress can interfere and provide for the punishment of any individual
guilty of such refusal, no matter whether such individual acted under or
against the authority of the State.
With this statement I most heartily agree. I agree that:
"When the wrongful refusal is because of race, color, or previous
condition of servitude, Congress can interfere and provide for the
punishment of any individual guilty of such refusal."
That is the key that unlocks the whole question. Congress has
power--full, complete, and ample,--to protect all citizens from unjust
discrimination, and from being deprived of equal privileges on account
of race, color, or previous condition of servitude. And this language is
just as applicable to the 13th and 14th, as to the 15th Amendment. If
a citizen is denied the accommodations of a public inn, or a seat in
a railway car, on account of race or color, or deprived of liberty on
account of race or color, the Constitution has been violated, and the
citizen thus discriminated against or thus deprived of liberty, is
entitled to redress in a Federal Court.
It is held by the Supreme Court that the word "State" does not apply
to the "people" of the State--that it applies only to the agents of
the people of the State. And yet, the word "State," as used in the
Constitution, has been held to include not only the persons in
office, but the people who elected them--not only the agents, but the
principals. In the Constitution it is provided that "no State shall
coin money; and no State shall emit bills of credit." According to this
decision, any person in any State, unless prevented by State authority,
has the right to coin money and to emit bills of credit, and Congress
has no power to legislate upon the subject--provided he does not
counterfeit any of the coins or current money of the United States.
Congress would have to deal--not with the individuals, but with the
State; and unless the State had passed some act allowing persons to coin
money, or emit bills of credit, Congress could do nothing. Yet, long
ago, Congress passed a statute preventing any person in any State from
coining money. No matter if a citizen should coin it of pure gold, of
the requisite fineness and weight, and not in the likeness of United
States coins, he would be a criminal. We have a silver dollar, coined by
the Government, worth eighty-five cents; and yet, if any person, in any
State, should coin what he called a dollar, not like our money, but with
a dollar's worth of silver in it, he would be guilty of a crime.
It may be said that the Constitution provides that Congress shall have
power to coin money, and provide for the punishment of counterfeiting
the securities and current coin of the United States; in other words,
that the Constitution gives power to Congress to coin money and denies
it to the States, not only, but gives Congress the power to legislate
against counterfeiting. So, in the 13th, 14th, and 15th Amendments,
power is given to Congress, and power is denied to the States, not
only, but Congress is expressly authorized to enforce the amendments by
appropriate legislation. Certainly the power is as broad in the one case
as in the other; and in both cases, individuals can be reached as well
as States.
So the Constitution provides that:
"Congress shall have power to regulate commerce among the several
States."
Under this clause Congress deals directly with individuals. The States
are not engaged in commerce, but the people are; and Congress makes
rules and regulations for the government of the people so engaged.
The Constitution also provides that:
"Congress shall have power to regulate commerce with the Indian tribes."
It was held in the case of _The United States vs. Holliday_, 3 Wall.,
407, that:
"Commerce with the Indian tribes means commerce with the individuals
composing those tribes."
And under this clause it has been further decided that Congress has
the power to regulate commerce not only between white people and Indian
tribes, but between Indian tribes; and not only that, but between
individual Indians. _Worcester vs. The State, 6 Pet., 575; The United
States vs. 4.3 Gallons, 93 U. S., 188; The United States vs. Shawmux, 2
Saw., 304._
Now, if the word "tribe" includes individual Indians, may not the word
"State" include citizens?
In this decision it is admitted by the Supreme Court that where a
subject is submitted to the general legislative power of Congress, then
Congress has plenary powers of legislation over the whole subject. Let
us apply these words to the 13th Amendment. In this very decision I find
that the 13th Amendment:
"By its own unaided force and effect, abolished slavery and established
universal freedom."
The Court admits that:
"Legislation may be necessary and proper to meet all the various cases
and circumstances to be affected by it, and to prescribe proper modes of
redress for its violation in letter or spirit."
The Court further admits:
"And such legislation may be primary and direct in its character."
And then gives the reason:
"For the amendment is not a mere prohibition of State laws establishing
or upholding slavery, but an absolute declaration that slavery or
involuntary servitude shall not exist in any part of the United States."
I now ask, has that subject--that is to say, Liberty,--been submitted to
the general legislative power of Congress? The 13th Amendment provides
that Congress shall have power to enforce that amendment by appropriate
legislation.
In construing the 13th and 14th Amendments and the Civil Rights Act,
it seems to me that the Supreme Court has forgotten the principle of
construction that has been laid down so often by courts, and that is
this: that in construing statutes, courts may look to the history and
condition of the country as circumstances from which to gather the
intention of the Legislature. So it seems to me that the Court failed
to remember the rule laid down by Story in the case of _Prigg vs. The
Commonwealth of Pennsylvania,_ 16 Pet., 611, a rule laid down in the
interest of slavery--laid down for the purpose of depriving human beings
of their liberty:
"Perhaps the safest rule of interpretation, after all, will be found to
be to look to the nature and objects of the particular powers, duties
and rights with all the lights and aids of contemporary history, and to
give to the words of each just such operation and force consistent
with their legitimate meaning, as may fairly secure and attain the ends
proposed."
It must be admitted that certain rights were conferred by the 13th
Amendment. Surely certain rights were conferred by the 14th Amendment;
and these rights should be protected and upheld by the Federal
Government. And it was held in the case last cited, that:
"If by one mode of interpretation the right must become shadowy and
unsubstantial, and without any remedial power adequate to the end, and
by another mode it will attain its just end and secure its manifest
purpose--it would seem, upon principles of reasoning absolutely
irresistable, that the latter ought to prevail. No court of justice can
be authorized so as to construe any clauses of the Constitution as to
defeat its obvious ends, when another construction, equally accordant
with the words and sense thereof, will enforce and protect them."
In the present case, the Supreme Court holds, that Congress can not
legislate upon this subject until the State has passed some law contrary
to the Constitution.
I call attention in reply to this, to the case of _Hall vs. De Cuir,_
95 U. S., 486. The State of Louisiana, in 1869, acting in the spirit of
these amendments to the Constitution, passed a law requiring that all
persons engaged within that State in the business of common carriers of
passengers, should make no discrimination on account of race, color, or
previous condition of servitude. Under this law, Mrs. De Cuir, a colored
woman, took passage on a steamer, buying a ticket from New Orleans to
Hermitage--the entire trip being within the limits of the State. The
captain of the boat refused to give her equal accommodations with other
passengers--the refusal being on the ground of her color. She commenced
suit against the captain in the State Court of Louisiana, and recovered
judgment for one thousand dollars. The defendant appealed to the Supreme
Court of that State, and the judgment of the lower court was sustained.
Thereupon, the captain died, and the case was taken to the Supreme Court
of the United States by his administrator, on the ground that a Federal
question was involved.
You will see that this was a case where the State had acted, and had
acted exactly in accordance with the constitutional amendments, and had
by law provided that the privileges and immunities of the citizen of
the United States--residing in the State of Louisiana--should not be
abridged, and that no distinction should be made on account of race or
color. But in that case the Supreme Court of the United States solemnly
decided that the legislation of the State was void--that the State of
Louisiana had no right to interfere--no right, by law, to protect a
citizen of the United States from being discriminated against under such
circumstances.
You will remember that the plaintiff, Mrs. De Cuir, was to be carried
from New Orleans to Hermitage, and that both places were within the
State of Louisiana. Notwithstanding this, the Supreme Court held:
"That if the public good required such legislation, it must come from
Congress and not from the State."
What reason do you suppose was given? It was this: The Constitution
gives to Congress power to regulate commerce between the States; and
it appeared from the evidence given in that case, that the boat plied
between the ports of New Orleans and Vicksburg. Consequently, it was
engaged in interstate commerce. Therefore, it was under the protection
of Congress; and being under the protection of Congress, the State had
no authority to protect its citizens by a law in perfect harmony with
the Constitution of the United States, while such citizens were within
the limits of Louisiana. The Supreme Court scorns the protection of a
State!
In the case recently decided, and about which we are talking to-night,
the Supreme Court decides exactly the other way. It decides that if the
public good requires such legislation, it must come from the States, and
not from Congress; that Congress cannot act until the State has acted,
and until the State has acted wrong, and that Congress can then only act
for the purpose of "correcting" such State action. The decision in _Hall
vs. De Cuir_ was rendered in 1877. The Civil Rights Act was then in
force, and applied to all persons within the jurisdiction of the United
States, and provided expressly that:
"All persons within the jurisdiction of the United States shall
be entitled to the full and equal enjoyment of the accommodations,
privileges, and facilities of inns, public conveyances on land or water,
theatres, and other places of public amusement, without regard to race
or color."
And yet the Supreme Court said:
"No carrier of passengers can conduct his business with satisfaction to
himself, or comfort to those employing him, if on one side of a State
line his passengers, both white and colored, must be permitted to occupy
the same cabin, and on the other to be kept separate."
What right had the other State to pass a law that passengers should be
kept separate, on account of race or color? How could such a law have
been constitutional? The Civil Rights Act applied to all States, and
to both sides of the lines between all States, and produced absolute
uniformity--and did not put the captain to the trouble of dividing his
passengers. The Court further said:
"Uniformity in the regulations by which the carrier is to be governed
from one end to the other of his route, is a necessity in his business."
The uniformity had been guaranteed by the Civil Rights Act, and the
statute of the State of Louisiana was in exact conformity with the 14th
Amendment and the Civil Rights Act. The Court also said:
"And to secure uniformity, Congress, which is untrammeled by State
lines, has been invested with the exclusive power of determining what
such regulations shall be."
Yes. Congress has been invested with such power, and Congress has used
it in passing the Civil Rights Act--and yet, under these circumstances,
the Court proceeds to imagine the difficulty that a captain would have
in dividing his passengers as he crosses a State line, keeping them
apart until he reaches the line of another State, and then bringing
them together, and so going on through the process of dispersing and
huddling, to the end of his unfortunate route.
It is held by the Supreme Court, that uniformity of duties is essential
to the carrier, and so essential, that Congress has control of the whole
matter. If uniformity is so desirable for the carrier that Congress
takes control, then uniformity as to the rights of passengers is equally
desirable; and under the 13th and 14th Amendments, Congress has the
exclusive power to state what the rights, privileges and immunities of
passengers shall be. So that, in 1877, the Supreme Court decided that
the _States could not_ legislate; and in 1883, that _Congress could
not_, unless the State had. If Congress controls interstate commerce
upon the navigable waters, it also controls interstate commerce upon the
railways. And if Congress has exclusive jurisdiction in the one case, it
has in the other. And if it has exclusive jurisdiction, it does not
have to wait until States take action. If it does not have to wait until
States take action, then the Civil Rights Act, in so far as it refers
to the rights of passengers going from one State to another, must be
constitutional.
It must be remembered, in this discussion, that the 8th Section of the
Constitution conferred upon Congress the power:
"To make all laws that may be necessary and proper for carrying into
execution the powers vested by the Constitution in the Government of the
United States."
So the 2nd Section of the 13th Article provides:
"Congress shall have power to enforce this article by appropriate
legislation."
The same language is used in the 14th and 15th Amendments.
"This clause does not limit--it enlarges--the powers vested in the
General Government. It is an additional power--not a restriction on
those already granted. It does not impair the right of the Legislature
to exercise its best judgment in the selection of measures to carry
into execution the constitutional powers of the Government. A sound
construction of the Constitution must allow to the National Legislature
that discretion with respect to the means by which the powers it confers
are to be carried into execution, which will enable that body to perform
the high duties assigned to it in the manner most beneficial to the
people. Let the end be legitimate--let it be within the scope of the
Constitution, and all means which are appropriate--which are plainly
adapted to that end--are constitutional."
This is the language of Chief Justice Marshall, in the case of
_M'Caulay, vs. The State_, 4 Wheaton, 316.
"Congress must possess the choice of means, and must be empowered to use
any means which are in fact conducive to the exercise of a power granted
by the Constitution." U. S. vs. Fisher, 2 Cranch, 358.
Again:
"The power of Congress to pass laws to enforce rights conferred by
the Constitution is not limited to the express powers of legislation
enumerated in the Constitution. The powers which are necessary and
proper as means to carry into effect rights expressly given and duties
expressly enjoined, are always implied. The end being given, the means
to accomplish it are given also." _Prigs vs. The Commonwealth_, 16
Peters, 539.
This decision was delivered by Justice Story, and is the same one
already referred to, in which liberty was taken from a human being by
judicial construction. It was held in that case that the 2nd Section
of the 4th Article of the Constitution, to which I have already called
attention, contained "a positive and unqualified recognition of
the right" of the owner in a slave, unaffected by any State law or
regulation. If this is so, then I assert that the 13th Amendment
"contains a positive and unqualified recognition of the right" of every
human being to liberty; that the 14th Amendment "contains a positive and
unqualified recognition of the right" to citizenship; and that the 15th
Amendment "contains a positive and unqualified recognition of the right"
to vote.
Justice Story held in that case that:
"Under and by virtue of that section of the Constitution the owner of a
slave was clothed with entire authority in every State in the nation to
seize and recapture his slave."
He also held that:
"In that sense, and to that extent, that clause of the Constitution
might properly be said to execute itself, and to require no aid from
legislation--State or National."
"But," says Justice Story:
"The clause of the Constitution does not stop there, but says that he,
the slave, shall be delivered up on claim of the party to whom such
service or labor may be due."
And he holds that:
"Under that clause of the section Congress became clothed with the
appropriate authority to legislate for its enforcement."
Now let us look at the 13th and 14th Amendments in the light of that
decision.
First. Liberty and citizenship were given the colored people by this
amendment. And Justice Story tells us that:
"The power of Congress to enforce rights conferred by the Constitution
is not limited to the express powers of legislation enumerated in the
Constitution, but the powers which are necessary to protect such rights
are always implied."
Language cannot be stronger; words cannot be clearer. But now this
decision has been reversed by the Supreme Court, and Congress is left
powerless to protect rights conferred by the Constitution. It has been
shorn of implied powers. It has duties to perform, and no power to act.
It has rights to protect, but cannot choose the means. It is entangled
in its own strength. It is a prisoner in the bastile of judicial
construction.
Let us go further. Justice Story tells us that:
"The words 'but shall be given up on the claim of the person to whom
such labor or service may be due,' clothes Congress with the appropriate
authority to legislate for its enforcement."
In the light of this remark, let us look at the 14th Amendment:
"All persons bom or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside."
To which are added these words:
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty or property without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws."
Now, if the words: "But shall be delivered up on claim of the party to
whom such service or labor may be due," clothes Congress with power to
legislate upon the entire subject, then I ask if the words in the
14th Amendment declaring that "no law shall be made by any State, or
enforced, which shall abridge the privileges or immunities of citizens
of the United States; and that no State shall deprive any person of
life, liberty or property without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws," does
not clothe Congress with the power to legislate upon the entire subject?
In the two cases there is only this difference: The first decision was
made in the interest of human slavery--made to protect property in man;
and the second decision ought to have been made for exactly the opposite
purpose. Under the first decision, Congress had the right to select the
means--but now that is denied. And yet it was decided in _M'Cauley vs.
The State_, 4 Wheaton, 316, that:
"When the Government has a right to do an act, and has imposed on it the
duty of performing an act, then it must, according to the dictates of
reason, be allowed to select the means."
Again:
"The Government has the right to employ freely every means not
prohibited, for the fulfillment of its acknowledged duties."
_The Legal Tender Cases_--12 Wallace, 457.
It will thus be seen that Congress has the undoubted right to make all
laws necessary for the exercise of all the powers vested in it by the
Constitution. When the Constitution imposes a duty upon Congress, it
grants the necessary means. Congress certainly, then, has the right to
pass all necessary laws for the enforcement of the 13th, 14th and 15th
Amendments. Any legislation is "appropriate" that is calculated to
accomplish the end sought and that is not repugnant to the Constitution.
Within these limits Congress has the sovereign power of choice. No
better definition of "appropriate legislation" has been given than
that by the Supreme Court of California, in the case of The People vs.
Washington, 38 California, 658:
"Legislation which practically tends to facilitate the securing to
all, through the aid of the judicial and executive departments of the
Government, the full enjoyment of personal freedom, is appropriate."
The Supreme Court despairingly asks:
"If this legislation is appropriate for enforcing the prohibitions of
the Amendment, it is difficult to see where it is to stop. Why may not
Congress, with equal show of authority, enact a code of laws for
the enforcement and vindication of all rights of life, liberty and
property?"
My answer is: The legislation will stop when and where the
discriminations on account of race, color or previous condition of
servitude, stop. Whenever an immunity or privilege of a citizen of the
United States is trodden down by the State, or by an individual, under
the circumstances mentioned in the Civil Rights Act--that is to say,
on account of race, color, or previous condition of servitude--then
the Federal Government must interfere. The Government must defend the
immunities and privileges of its citizens, not only from State invasion,
but from individual invaders, when that invasion is based upon the
distinction of race, color, or previous condition of servitude. The
Government has taken upon itself that duty. This duty can be discharged
by a law making a uniform rule, obligatory not only upon States, but
upon individuals. All this will stop when the discriminations stop.
After such examination of the authorities as I have been able to make, I
lay down the following propositions, namely:
1. The sovereignty of a State extends only to that which exists by its
own authority.
2. The powers of the General Government were not conferred by the people
of a single State; they were given by the people of the United States;
and the laws of the United States, in pursuance of the Constitution, are
supreme over the entire Republic.
3. The Constitution of the United States is the supreme law of each
State.
4. The United States is a Government whose authority extends over the
whole territory of the Union, acting upon all the States and upon all
the people of all the States.
5. No State can exclude the Federal Government from the exercise of any
authority conferred upon it by the Constitution, or withhold from it,
for a moment, the cognizance of any subject which that instrument has
committed to it.
6. It is the duty of Congress to enforce the Constitution, and it
has been clothed with power to make all laws necessary and proper for
carrying into execution all the powers vested by the Constitution in the
General Government.
7. It is the duty of the Government to protect every citizen of the
United States in all his rights, everywhere, without regard to race,
color, or previous condition of servitude; and this the Government has
the right to do by direct legislation.
8. Every citizen, when his privileges and immunities are invaded by the
legislature of a State, has the right of appeal from such. State to the
Supreme Court of the nation.
9. When a State fails to pass any law protecting a citizen from
discrimination on account of race or color, and fails, in fact, to
protect such citizen, then such citizen has the right to find redress in
the Federal Courts.
10. Whenever, in the Constitution, a State is prohibited from doing
anything that in the nature of the thing can be done by any citizen of
that State, then the word "State" embraces and includes all the people
of a State.
11. The 13th Amendment declares that neither slavery nor involuntary
servitude shall exist within the jurisdiction of the United States.
This is not a mere negation--it is a splendid affirmation. The duty is
imposed upon the General Government by that amendment to see to it that
neither slavery nor involuntary servitude shall exist.
It is a question absolutely within the power of the Federal Government,
and the Federal Government is clothed with power to make all necessary
laws to enforce that amendment against States and persons.
12. The 14th Amendment provides that all persons born or naturalized in
the United States and subject to the jurisdiction thereof, are citizens
of the United States and of the States wherein they reside. This is also
an affirmation. It is not a prohibition. The moment that amendment was
adopted, it became the duty of the United States to protect the citizens
recognized or created by that amendment. We are no longer citizens
of the United States because we are citizens of a State, but we are
citizens of the United States because we have been born or have been
naturalized within the jurisdiction of the United States. It therefore
follows, that it is not only the right, but it is the duty, of Congress,
to pass all laws necessary for the protection of citizens of the United
States.
13. Congress can not shirk this responsibility by leaving citizens of
the United States to the care and keeping of the several States.
The recent decision of the Supreme Court cuts, as with a sword, the tie
that binds the citizen to the nation. Under the old Constitution, it was
not certainly known who were citizens of the United States. There were
citizens of the States, and such citizens looked to their several States
for protection. The Federal Government had no citizens. Patriotism did
not rest on mutual obligation. Under the 14th Amendment, we are all
citizens of a common country; and our first duty, our first obligation,
our highest allegiance, is not to the State in which we reside, but
to the Federal Government. The 14th Amendment tends to destroy State
prejudices and lays a foundation for national patriotism.
14. All statutes--all amendments to the Constitution--in derogation of
natural rights, should be strictly construed.
15. All statutes and amendments for the preservation of natural
rights should be liberally construed. Every court should, by strict
construction, narrow the scope of every law that infringes upon any
natural human right; and every court should, by construction, give the
broadest meaning to every statute or constitutional provision passed or
adopted for the preservation of freedom.
16. In construing the 13th, 14th and 15th Amendments, the Supreme Court
need not go back to decisions rendered in the days of slavery--when
every statute was construed in favor of the sovereignty of the State
and the rights of the master. These amendments utterly obliterated such
decisions. The Supreme Court should begin with the amendments. It need
not look behind them. They are a part of the fundamental organic law of
the nation. They were adopted to destroy the old statutes, to obliterate
the infamous clauses in the Constitution, and to lay a new foundation
for a new nation.
17. Congress has the power to eradicate all forms and incidents of
slavery and involuntary servitude, by direct and primary legislation
binding upon States and individuals alike. And when citizens are denied
the exercise of common rights and privileges--when they are refused
admittance to public inns and railway cars, on an equality with white
persons--and when such denial and refusal are based upon race and color,
such citizens are in a condition of involuntary servitude.
The Supreme Court has failed to take into consideration the intention of
the framers of these amendments. It has failed to comprehend the spirit
of the age. It has undervalued the accomplishment of the war. It has
not grasped in all their height and depth the great amendments to the
Constitution and the real object of government. To preserve liberty is
the only use for government. There is no other excuse for legislatures,
or presidents, or courts, for statutes or decisions. Liberty is not
simply a means--it is an end. Take from our history, our literature, our
laws, our hearts--that word, and we are naught but moulded clay. Liberty
is the one priceless jewel. It includes and holds and is the weal and
wealth of life. Liberty is the soil and light and rain--it is the plant
and bud and flower and fruit--and in that sacred word lie all the seeds
of progress, love and joy.
This decision, in my judgment, is not worthy of the Court by which
it was delivered. It has given new life to the serpent of State
Sovereignty. It has breathed upon the dying embers of ignorant hate. It
has furnished food and drink, breath and blood, to prejudices that
were perishing of famine, and in the old case of _Civilization vs.
Barbarism_, it has given the defendant a new trial.
From this decision, John M. Harlan had the breadth of brain, the
goodness of heart, and the loyalty to logic, to dissent. By the fortress
of Liberty, one sentinel remains at his post. For moral courage I have
supreme respect, and I admire that intellectual strength that breaks the
cords and chains of prejudice and damned custom as though they were but
threads woven in a spider's loom. This judge has associated his name
with freedom, and he will be remembered as long as men are free.
We are told by the Supreme Court that:
"Slavery cannot exist without law, any more than property and lands and
goods can exist without law."
I deny that property exists by virtue of law. I take exactly the
opposite ground. It was the fact that man had property in lands and
goods, that produced laws for the protection of such property. The
Supreme Court has mistaken an effect for a cause. Laws passed for the
protection of property, sprang from the possession and ownership of the
thing to be protected. When one man enslaves another, it is a violation
of all justice--a subversion of the foundation of all law. Statutes
passed for the purpose of enabling man to enslave his fellow-man,
resulted from a conspiracy entered into by the representatives of brute
force. Nothing can be more absurd than to call such a statute, born of
such a conspiracy a law. According to the idea of the Supreme Court, man
never had property until he had passed a law upon the subject. The first
man who gathered leaves upon which to sleep, did not own them, because
no law had been passed on the leaf subject. The first man who gathered
fruit--the first man who fashioned a club with which to defend himself
from wild beasts, according to the Supreme Court, had no property
in these things, because no laws had been passed, and no courts had
published their decisions.
So the defenders of monarchy have taken the ground that societies were
formed by contract--as though at one time men all lived apart, and came
together by agreement and formed a government. We might just as well
say that the trees got into groves by contract or conspiracy. Man is a
social being. By living together there grow out of the relation, certain
regulations, certain customs. These at last hardened into what we call
law--into what we call forms of government--and people who wish to
defend the idea that we got everything from the king, say that our
fathers made a contract. Nothing can be more absurd. Men did not agree
upon a form of government and then come together; but being together,
they made rules for the regulation of conduct. Men did not make some
laws and then get some property to fit the laws, but having property
they made laws for its protection.
It is hinted by the Supreme Court that this is in some way a question of
social equality. It is claimed that social equality cannot be enforced
by law. Nobody thinks it can. This is not a question of social equality,
but of equal rights. A colored citizen has the same right to ride upon
the cars--to be fed and lodged at public inns, and to visit theatres,
that I have. Social equality is not involved.
The Federal soldiers who escaped from Libby and Andersonville, and who
in swamps, in storm, and darkness, were rescued and fed by the slave,
had no scruples about eating with a negro. They were willing to sit
beneath the same tree and eat with him the food he brought. The white
soldier was then willing to find rest and slumber beneath the negro's
roof. Charity has no color. It is neither white nor black. Justice and
Patriotism are the same. Even the Confederate soldier was willing to
leave his wife and children under the protection of a man whom he was
fighting to enslave.
Danger does not draw these nice distinctions as to race or color. Hunger
is not proud. Famine is exceedingly democratic in the matter of food.
In the moment of peril, prejudices perish. The man fleeing for his life
does not have the same ideas about social questions, as he who sits
in the Capitol, wrapped in official robes. Position is apt to be
supercilious. Power is sometimes cruel. Prosperity is often heartless.
This cry about social equality is born of the spirit of caste--the most
fiendish of all things. It is worse than slavery. Slavery is at least
justified by avarice--by a desire to get something for nothing--by a
desire to live in idleness upon the labor of others--but the spirit of
caste is the offspring of natural cruelty and meanness.
Social relations depend upon almost an infinite number of influences
and considerations. We have our likes and dislikes. We choose our
companions. This is a natural right. You cannot force into my house
persons whom I do not want. But there is a difference between a public
house and a private house. The one is for the public. The private house
is for the family and those they may invite. The landlord invites the
entire public, and he must serve those who come if they are fit to be
received. A railway is public, not private. It derives its powers and
its rights from the State. It takes private land for public purposes.
It is incorporated for the good of the public, and the public must be
served. The railway, the hotel, and the theatre, have a right to make
a distinction between people of good and bad manners--between the clean
and the unclean. There are white people who have no right to be in
any place except a bath-tub, and there are colored people in the same
condition. An unclean white man should not be allowed to force himself
into a hotel, or into a railway car--neither should the unclean colored.
What I claim is, that in public places, no distinction should be made on
account of race or color. The bad black man should be treated like the
bad white man, and the good black man like the good white man. Social
equality is not contended for--neither between white and white, black
and black, nor between white and black.
In all social relations we should have the utmost liberty--but public
duties should be discharged and public rights should be recognized,
without the slightest discrimination on account of race or color.
Riding in the same cars, stopping at the same inns, sitting in the same
theatres, no more involve a social question, or social equality, than
speaking the same language, reading the same books, hearing the same
music, traveling on the same highway, eating the same food, breathing
the same air, warming by the same sun, shivering in the same cold,
defending the same flag, loving the same country, or living in the same
world.
And yet, thousands of people are in deadly fear about social equality.
They imagine that riding with colored people is dangerous--that the
chance acquaintance may lead to marriage. They wish to be protected from
such consequences by law. They dare not trust themselves. They appeal
to the Supreme Court for assistance, and wish to be barricaded by a
constitutional amendment. They are willing that colored women shall
prepare their food--that colored waiters shall bring it to them--willing
to ride in the same cars with the porters and to be shown to their
seats in theatres by colored ushers--willing to be nursed in sickness by
colored servants. They see nothing dangerous--nothing repugnant, in any
of these relations,--but the idea of riding in the same car, stopping at
the same hotel, fills them with fear--fear for the future of our race.
Such people can be described only in the language of Walt Whitman. "They
are the immutable, granitic pudding-heads of the world.".
Liberty is not a social question. Civil equality is not social equality.
We are equal only in rights. No two persons are of equal weight,
or height. There are no two leaves in all the forests of the earth
alike--no two blades of grass--no two grains of sand--no two hairs. No
two any-things in the physical world are precisely alike. Neither mental
nor physical equality can be created by law, but law recognizes the fact
that all men have been clothed with equal rights by Nature, the mother
of us all.
The man who hates the black man because he is black, has the same spirit
as he who hates the poor man because he is poor. It is the spirit
of caste. The proud useless despises the honest useful. The parasite
idleness scorns the great oak of labor on which it feeds, and that lifts
it to the light.
I am the inferior of any man whose rights I trample under foot. Men
are not superior by reason of the accidents of race or color. They are
superior who have the best heart--the best brain. Superiority is born of
honesty, of virtue, of charity, and above all, of the love of liberty.
The superior man is the providence of the inferior. He is eyes for
the blind, strength for the weak, and a shield for the defenceless. He
stands erect by bending above the fallen. He rises by lifting others.
In this country all rights must be preserved, all wrongs redressed,
through the ballot. The colored man has in his possession in his care, a
part of the sovereign power of the Republic. At the ballot-box he is
the equal of judges and senators, and presidents, and his vote, when
counted, is the equal of any other. He must use this sovereign power for
his own protection, and for the preservation of his children. The ballot
is his sword and shield. It is his political providence. It is the rock
on which he stands, the column against which he leans. He should vote
for no man who dees not believe in equal rights for all--in the same
privileges and immunities for all citizens, irrespective of race or
color.
He should not be misled by party cries, or by vague promises in
political platforms. He should vote for the men, for the party, that
will protect him; for congressmen who believe in liberty, for judges who
worship justice, whose brains are not tangled by technicalities, and whose
hearts are not petrified by precedents; and for presidents who will
protect the blackest citizen from the tyranny of the whitest State. As
you cannot trust the word of some white people, and as some black people
do not always tell the truth, you must compel all candidates to put
their principle' in black and white.
Of one thing you can rest assured: The best white people are your
friends. The humane, the civilized, the just, the most intelligent, the
grandest, are on your side. The sympathies of the noblest are with
you. Your enemies are also the enemies of liberty, of progress and of
justice. The white men who make the white race honorable believe in
equal rights for you. The noblest living are, the noblest dead were,
your friends. I ask you to stand with your friends.
Do not hold the Republican party responsible for this decision, unless
the Republican party endorses it. Had the question been submitted to
that party, it would have been decided exactly the other way--at least a
hundred to one. That party gave you the 13th, 14th and 15th Amendments.
They were given in good faith. These amendments put you on a
constitutional and political equality with white men. That they have
been narrowed in their application by the Supreme Court, is not the
fault of the Republican party. Let us wait and see what the Republican
party will do. That party has a strange history, and in that history is
a mingling of cowardice and courage. The army of progress always becomes
fearful after victory, and courageous after defeat. It has been the
custom for principle to apologize to prejudice. The Proclamation of
Emancipation gave liberty only to slaves beyond our lines--those beneath
our flag were left to wear their chains. We said to the Southern States:
"Lay down your arms, and you shall keep your slaves." We tried to buy
peace at the expense of the negro.
We offered to sacrifice the manhood of the North, and the natural rights
of the colored man, upon the altar of the Union. The rejection of that
offer saved us from infamy. At one time we refused to allow the loyal
black man to come within our lines. We would meet him at the outposts,
receive his information, and drive him back to chain and lash. The
Government publicly proclaimed that the war was waged to save the Union,
with slavery. We were afraid to claim that the negro was a man--afraid
to admit that he was property--and so we called him "contraband." We
hesitated to allow the negro to fight for his own freedom--hesitated
to let him wear the uniform of the nation while he battled for the
supremacy of its flag.
These are some of the inconsistencies of the past. In spite of them we
advanced. We were educated by events, and at last we clearly saw that
slavery was rebellion; that the "institution" had borne its natural
fruit--civil war; that the entire country was responsible for slavery,
and that slavery was responsible for rebellion. We declared that slavery
should be extirpated from the Republic. The great armies led by
the greatest commander of the modern world, shattered, crushed and
demolished the Rebellion. The North grew grand. The people became
sublime. The three sacred amendments were adopted. The Republic was
free.
Then came a period of hesitation, apology and fear. The colored citizen
was left to his fate. For years the Federal arm, palsied by policy,
was powerless to protect; and this period of fear, of hesitation, of
apology, of lack of confidence in the right, has borne its natural
fruit--this decision of the Supreme Court.
But it is not for me to give you advice. Your conduct has been above
all praise. You have been as patient as the earth beneath, as the
stars above. You have been law-abiding and industrious, You have not
offensively asserted your rights, or offensively borne your wrongs. You
have been modest and forgiving. You have returned good for evil. When I
remember that the ancestors of my race were in universities and colleges
and common schools while you and your fathers were on the auction-block,
in the slave-pen, or in the field beneath the cruel lash, in States
where reading and writing were crimes, I am astonished at the progress
you have made.
All that I--all that any reasonable man--can ask is, that you continue
doing as you have done. Above all things--educate your children--strive
to make yourselves independent--work for homes--work for yourselves--and
wherever it is possible become the masters of yourselves.
Nothing gives me more pleasure than to see your little children with
books under their arms, going and coming from school.
It is very easy to see why colored people should hate us, but why we
should hate them is beyond my comprehension. They never sold our wives.
They never robbed our cradles.. They never scarred our backs. They never
pursued us with bloodhounds. They never branded our flesh.
It has been said that it is hard to forgive a man to whom we have done
a great injury. I can conceive of no other reason why we should hate the
colored people. To us they are a standing reproach. Their history is our
shame. Their virtues seem to enrage some white people--their patience
to provoke, and their forgiveness to insult. Turn the tables--change
places--and with what fierceness, with what ferocity, with what insane
and passionate intensity we would hate them!
The colored people do not ask for revenge--they simply ask for
justice. They are willing to forget the past--willing to hide their
scars--anxious to bury the broken chains, and to forget the miseries and
hardships, the tears and agonies, of two hundred years.
The old issues are again upon us. Is this a Nation? Have all citizens of
the United States equal rights, without regard to race or color? Is
it the duty of the General Government to protect its citizens? Can the
Federal arm be palsied by the action or non-action of a State?
Another opportunity is given for the people of this country to take
sides. According to my belief, the supreme thing for every man to do is
to be absolutely true to himself. All consequences--whether rewards or
punishments, whether honor and power, or disgrace and poverty, are as
dreams undreamt. I have made my choice. I have taken my stand. Where my
brain and heart go, there I will publicly and openly walk. Doing this,
is my highest conception of duty. Being allowed to do this, is liberty.
If this is not now a free Government; if citizens cannot now be
protected, regardless of race or color; if the three sacred amendments
have been undermined by the Supreme Court--we must have another; and if
that fails, then another; and we must neither stop, nor pause, until
the Constitution shall become a perfect shield for every right, of every
human being, beneath our flag.