Observe, if you please, how little the word “white” is authorized to
play the great part it performs, and how much of an intruder it is
in all its appearances. In those two title-deeds, the Declaration
of Independence and the Constitution, there are no words of color,
whether white, yellow, red, or black; but here is the fountain out of
which all is derived. The Declaration speaks of “all men,” and not of
“all _white_ men”; and the Constitution says, “We the people,” and
not “We the _white_ people.” Where, then, is authority for any such
discrimination, whether by the nation or any component part? There
is no fountain or word for it. The fountain failing, and the word
non-existent, the whole pretension is a disgusting usurpation, which is
more utterly irrational when it is considered that authority for such
an outrage can be found only in positive words, plain and unambiguous
in meaning. This was the rule with regard to Slavery, solemnly declared
by Lord Mansfield in the famous Somerset case; and it must be the same
with regard to this pretension. It cannot be invented, imagined, or
implied; it must be found in the very text: and this I assert according
to fixed principles of jurisprudence. In its absence, Equality is “the
supreme law of the land; and the judges in every State shall be bound
thereby, anything in the constitution or laws of any State to the
contrary notwithstanding.”[206]
This conclusion is reinforced by the several Constitutional Amendments;
but I prefer to dwell on the original text of the Constitution, in
presence of which you might as well undertake to make a king as to
degrade a fellow-citizen on account of his skin.
There is also, antedating and interpreting the Constitution, the
original Common Law, which knew no distinction of color. One of the
greatest judges that ever sat in Westminster Hall, Lord Chief-Justice
Holt, declared, in sententious judgment, worthy of perpetual memory,
“The Common Law takes no notice of Negroes being different from other
men.”[207] This was in 1706, seventy years before the Declaration of
Independence; so that it was well known to our fathers as part of that
Common Law, to which, according to the Continental Congress, the
several States were entitled.[208] Had these remarkable words been
uttered by any other judge in Westminster Hall, they would have been
important; but they are enhanced by the character of their illustrious
author, to whom belongs the kindred honor of first declaring from the
bench that a slave cannot breathe in England.[209]
Among the ornaments of English law none has a purer fame than Holt,
who was emphatically a great judge,--being an example of learning
and firmness, of impartiality and mildness, with a constant instinct
for justice, and a rare capacity in upholding it. His eminent merits
compelled the admiration of his biographer, Lord Campbell, who does
not hesitate to say, that, “of all the judges in our annals, Holt has
gained the highest reputation, merely by the exercise of judicial
functions,”--and then again, in striking words, that “he may be
considered as having a genius for magistracy, as much as our Milton
had for poetry or our Wilkie for painting.”[210] And this rarest
magistrate tells us judicially, that “the Common Law takes no notice
of Negroes being different from other men,”--in other words, it makes
no discrimination on account of color. This judgment is a torch to
illumine the Constitution, while it shows how naturally our fathers
in the great Declaration said, “All men,” and not “All _white_ men,”
and in the Constitution said, “We the people,” and not “We the _white_
people.”
In melancholy contrast with the monumental judgment of the English
Chief-Justice are judicial decisions in our own country, especially
that masterpiece of elaborate inhumanity, the judgment of our late
Chief-Justice in the Dred Scott case. But it is in the States that the
word “white” has been made prominent. Such learned debate on the rights
of man dependent on complexion would excite a smile, if it did not
awaken indignation. There is Ohio, a much-honored State, rejoicing in
prosperity, intelligence, and constant liberty; but even this eminent
civilization has not saved its Supreme Court from the subtilties of
refinement on different shades of human color. In the case of _Lake_
v. _Baker et al._,[211] this learned tribunal decided that a child of
Negro, Indian, and white blood, but of more than one-half white, was
entitled to the benefits of the common-school fund; yet in a later case
the same court decided that “children of three-eighths African and
five-eighths white blood, but who are distinctly colored, and generally
treated and regarded as colored children by the community where they
reside, are not, _as of right_, entitled to admission into the common
schools set apart for the instruction of white youths.”[212] Unhappy
children! Even five-eighths white blood could not save them, if in
their neighborhood they were known as “colored.” But this magic of
color showed itself yet more in the precedent of _Polly Gray_ v. _The
State of Ohio_,--a case of robbery, in the Court of Common Pleas, where
the prisoner appearing on inspection “to be of a shade of color between
the mulatto and white,” a Negro was admitted to testify against her,
and she was convicted; but on grave consideration by the Supreme Court,
on appeal, it was decided that the witness was wrongly admitted, and
the judgment was reversed; and the decision stands on these words: “A
Negro is not an admissible witness against a quadroon on trial charged
with a crime”![213] Into this absurdity of injustice was an eminent
tribunal conducted by the _ignis-fatuus_ of color.
These are specimens only. To what meanness of inquiry has not the
judicial mind descended in the enforcement of an odious prejudice? Such
decisions are a discredit to Republican Government; and so also is the
existing practice of public institutions harmonizing with them. The
words of the Gospel are fulfilled, and the Great Republic, “conceived
in Liberty, and dedicated to the proposition that all men are created
equal,”[214] becomes “like unto _whited_ sepulchres, which indeed
appear beautiful outward, but are within full of dead men’s bones
and of all uncleanness.”[215] Are not such decisions worse than dead
men’s bones or any uncleanness? All this seems the more irrational,
when we recall the Divine example, and the admonition addressed to the
Prophet: “But the Lord said unto Samuel, _Look not on his countenance_,
… for the Lord seeth not as man seeth; for man looketh on the outward
appearance, _but the Lord looketh on the heart_.”[216] To the
pretension of looking at the skin and measuring its various pigments
in the determination of rights, I reply, that the heart, and not the
countenance, must be our guide. Not on the skin can we look, though
“white” as the coward heart of Macbeth, according to the reproach of
his wife,--but on that within, constituting character, which showed
itself supremely in Toussaint L’Ouverture, making him, though black
as night, a luminous example, and is now manifest in a virtuous and
patriotic people asking for their rights. Where justice prevails, all
depends on character. Nor can any shade of color be an apology for
interference with that consideration to which character is justly
entitled.
Thus it stands. The word “white” found no place in the original Common
Law; nor did it find any place afterward in our two title-deeds of
Constitutional Liberty, each interpreting the other, and being the
fountain out of which are derived the rights and duties of the American
citizen. Nor, again, did it find place in the Constitutional Amendment
expressly defining a “citizen.” How, then, can it become a limitation
upon the citizen? By what title can any one say, “I am a white lord”?
Every statute and all legislation, whether National or State, must be
in complete conformity with the two title-deeds. To these must they
be brought as to an unerring touchstone; and it is the same with the
State as with the Nation. Strange indeed, if an odious discrimination,
without support in the original Common Law or the Constitution, and
openly condemned by the Declaration of Independence, can escape
judgment by skulking within State lines! Wherever it shows itself,
whatever form it takes, it is the same barefaced and insufferable
imposture, a mere relic of Slavery, to be treated always with indignant
contempt, and trampled out as an unmitigated “humbug.” The word may
not be juridical; I should not use it if it were unparliamentary; but
I know no term which expresses so well the little foundation for this
pretension.