Thus do I reject the two excuses. But I do not leave the cause here.
I go further, and show how consistent is the pending measure with
acknowledged principles, illustrated by undoubted law.
The bill for Equal Rights is simply supplementary to the existing Civil
Rights Law, which is one of our great statutes of peace, and it stands
on the same requirements of the National Constitution. If the Civil
Rights Law is above question, as cannot be doubted, then also is this
supplementary amendment; for it is only the complement of the other,
and necessary to its completion. Without this amendment the original
law is imperfect. It cannot be said, according to its title, that all
persons are protected in their civil rights, so long as the outrages I
expose continue to exist; nor is Slavery entirely dead.
Following reason and authority, the conclusion is easy. A Law
Dictionary, of constant use as a repertory of established rules and
principles, defines a “freeman” as “one in the possession of _the civil
rights_ enjoyed by the people generally.”[183] Happily, all are freemen
now; but the colored people are still excluded from civil rights
enjoyed by the people generally,--and this, too, in the face of our new
Bill of Rights intended for their especial protection.
By the Constitutional Amendment abolishing Slavery Congress is
empowered “to enforce this article by appropriate legislation”; and in
pursuance thereof the Civil Rights Law was enacted. That measure was
justly accepted as “appropriate legislation.” Without it Slavery would
still exist in at least one of its most odious pretensions. By the
Civil Rights Law colored persons were assured in the right to testify,
which in most of the States was denied or abridged. So closely was
this outrage connected with Slavery, that it was, indeed, part of this
great wrong. Therefore its prohibition was “appropriate legislation”
in the enforcement of the Constitutional Amendment. But the denial or
abridgment of Equality on account of color is also part of Slavery. So
long as it exists, Slavery is still present among us. Its prohibition
is not only “appropriate,” but necessary, to enforce the Constitutional
Amendment. Therefore is it strictly Constitutional, as if in the very
text of the National Constitution.
The next Constitutional Amendment, known as the Fourteenth, contains
two different provisions, which augment the power of Congress. The
first furnishes the definition of “citizen,” which down to this time
had been left to construction only:--
“_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 wherever they reside.”
Here, you will remark, are no words of race or color. “_All_ persons,”
and not “_all white_ persons,” born or naturalized in the United
States, and subject to the jurisdiction thereof, are “citizens.” Such
is the definition supplied by this Amendment. This is followed by
another provision in aid of the definition:--
“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_.”
And Congress is empowered to enforce this definition of Citizenship and
this guaranty, by “appropriate legislation.”
Here, then, are two Constitutional Amendments, each a fountain of
power: the first, to enforce the Abolition of Slavery; and the second,
to assure the privileges and immunities of citizens, and also the equal
protection of the laws. If the Supplementary Civil Rights Bill, moved
by me, is not within these accumulated powers, I am at a loss to know
what is within those powers.
In considering these Constitutional provisions, I insist upon that
interpretation which shall give them the most generous expansion, so
that they shall be truly efficacious for human rights. Once Slavery
was the animating principle in determining the meaning of the National
Constitution: happily, it is so no longer. Another principle is now
supreme, breathing into the whole the breath of a new life, and filling
it in every part with one pervading, controlling sentiment,--being
that great principle of Equality which triumphed at last on the
battle-field, and, bearing the watchword of the Republic, now supplies
the rule by which every word of the Constitution and all its parts
must be interpreted, as much as if written in its text.
There is also an original provision of the National Constitution, not
to be forgotten:--
“The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.”
Once a sterile letter, this is now a fruitful safeguard, to be
interpreted, like all else, so that human rights shall most
prevail. The term “privileges and immunities” was at an early day
authoritatively defined by Judge Washington, who announced that they
embraced “protection by the Government, the enjoyment of life and
liberty, with the right to acquire and possess property of every
kind, and _to pursue and obtain happiness and safety_, … the right
of a citizen of one State to pass through or to reside in any other
State, for purposes of trade, agriculture, professional pursuits, or
otherwise.”[184] But these “privileges and immunities” are protected by
the present measure.
No doubt the Supplementary Law must operate, not only in National
jurisdiction, but also in the States, precisely as the Civil Rights
Law; otherwise it will be of little value. Its sphere must be
coextensive with the Republic, making the rights of the citizen uniform
everywhere. But this can be only by one uniform safeguard sustained
by the Nation. Citizenship is universal, and the same everywhere. It
cannot be more or less in one State than in another.
But legislation is not enough. An enlightened public opinion must be
invoked. Nor will this be wanting. The country will rally in aid of the
law, more especially since it is a measure of justice and humanity.
The law is needed now as a help to public opinion. It is needed by the
very people whose present conduct makes occasion for it. Prompted by
the law, leaning on the law, they will recognize the equal rights of
all; nor do I despair of a public opinion which shall stamp the denial
of these rights as an outrage not unlike Slavery itself. Custom and
patronage will then be sought in obeying the law. People generally are
little better than actors, for whom it was once said:--
“Ah, let not Censure term our fate our choice:
The stage but echoes back the public voice;
The drama’s laws the drama’s patrons give;
For we that live to please must please to live.”[185]
In the absence of the law people please too often by inhumanity, but
with the law teaching the lesson of duty they will please by humanity.
Thus will the law be an instrument of improvement, necessary in precise
proportion to existing prejudice. Because people still please by
inhumanity, therefore must there be a counteracting force. This precise
exigency was foreseen by Rousseau, remarkable as writer and thinker, in
a work which startled the world, when he said:--
“It is precisely because the force of things tends always to
destroy equality that the force of legislation should always
tend to maintain it.”[186]
Never was a truer proposition; and now let us look at the cases for its
application.