SPEECH.

The decision of the Chair was sustained by the vote of the Senate,—Yeas 28, Nays 26,—and the amendment was declared in order. On the question of its adoption it was lost,—Yeas 29, Nays 30.Later in the day, the Amnesty Bill having been reported to the Senate, Mr. Sumner renewed his amendment. In the debate that ensued he declared his desire to vote for amnesty; but he insisted that this measure did not deserve success, unless with it was justice to the colored race. In reply to Mr. Thurman, he urged that all regulations of public institutions should be in conformity with the Declaration of Independence. “The Senator may smile, but I commend that to his thoughts during our vacation. Let him consider the binding character of the Declaration in its fundamental principles. The Senator does not believe it. There are others who do, and my bill is simply a practical application of it.”Without taking any vote the Senate adjourned for the holiday recess, leaving the Amnesty Bill and the pending amendment as unfinished business.January 15, 1872, the subject was resumed, when Mr. Sumner made the following speech.

The decision of the Chair was sustained by the vote of the Senate,—Yeas 28, Nays 26,—and the amendment was declared in order. On the question of its adoption it was lost,—Yeas 29, Nays 30.

Later in the day, the Amnesty Bill having been reported to the Senate, Mr. Sumner renewed his amendment. In the debate that ensued he declared his desire to vote for amnesty; but he insisted that this measure did not deserve success, unless with it was justice to the colored race. In reply to Mr. Thurman, he urged that all regulations of public institutions should be in conformity with the Declaration of Independence. “The Senator may smile, but I commend that to his thoughts during our vacation. Let him consider the binding character of the Declaration in its fundamental principles. The Senator does not believe it. There are others who do, and my bill is simply a practical application of it.”

Without taking any vote the Senate adjourned for the holiday recess, leaving the Amnesty Bill and the pending amendment as unfinished business.

January 15, 1872, the subject was resumed, when Mr. Sumner made the following speech.

MR. PRESIDENT,—In opening this question, one of the greatest ever presented to the Senate, I have had but one hesitation, and that was merely with regard to the order of treatment. There is a mass of important testimony from all parts of the country, from Massachusetts as well as Georgia, showing the absolute necessity of Congressional legislation for the protection of Equal Rights, which I think ought to be laid before the Senate. It was my purpose to begin with this testimony; but I have changed my mind, and shall devote the day to a statement of the question, relying upon the indulgence of the Senate for another opportunity to introduce the evidence. I ask that the pending amendment be read.

The Chief Clerk read the amendment, which was to append to the Amnesty Bill, as additional sections, the Supplementary Civil Rights Bill.Mr. Sumner resumed:—

The Chief Clerk read the amendment, which was to append to the Amnesty Bill, as additional sections, the Supplementary Civil Rights Bill.

Mr. Sumner resumed:—

Mr. President, Slavery, in its foremost pretensions, reappears in the present debate. Again the barbarous tyranny stalks into this Chamber, denying to a whole race the Equal Rights promised by a just citizenship. Some have thought Slavery dead. This is a mistake. If not in body, at least in spirit, or as a ghost making the country hideous, the ancient criminal yet lingers among us, insisting upon the continued degradation of a race.

Property in man has ceased to exist. The human auction-block has departed. No human being can call himself master, with impious power to separate husband and wife, to sell child from parent, to shut out the opportunities of religion, to close the gates of knowledge, and to rob another of his labor and all its fruits. These guilty prerogatives are ended. To this extent the slave is free. No longer a chattel, he is a man,—justly entitled to all that is accorded by law to any other man.

Such is the irresistible logic of his emancipation. Ceasing to be a slave, he became a man, whose foremost right is Equality of Rights. And yet Slavery has been strong enough to postpone his entry into the great possession. Cruelly, he was not permitted to testify in court; most unjustly, he was not allowed to vote. More than four millions of people, whose only offence was a skin once the badge of Slavery, were shut out from the court-room, and also from the ballot-box, in open defiance of the great Declaration of our fathers, that all men are equal in rights, and that just government stands only on the consent of the governed. Such was the impudent behest of Slavery, prolonged after it was reported dead. At last these crying wrongs are overturned. The slave testifies; the slave votes. To this extent his equality is recognized.

But this is not enough. Much as it may seem, compared with the past, when all was denied, it is too little, because all is not yet recognized. The denial of any right is a wrong darkening the enjoyment of all the rest. Besides the right to testify and the right to vote, there are other rights without which Equality does not exist. The precise rule is Equality before the Law, nor more nor less; that is, that condition before the law in which all are alike,—being entitled, without discrimination, to the equal enjoyment of all institutions, privileges, advantages, and conveniences created or regulated by law, among which are the right to testify and the right to vote. But this plain requirement is not satisfied, logically or reasonably, by these two concessions, so that when they are recognized all others are trifles. The court-house and the ballot-box are not the only places for the rule. These two are not the only institutions for its operation. The rule is general; how, then, restrict it to two cases? It is,All are equal before the law,—not merely before the law in two cases, but before the law in all cases, without limitation or exception. Important as it is to testify and to vote, life is not all contained even in these possessions.

The new-made citizen is called to travel for business, for health, or for pleasure; but here his trials begin. His money, whether gold or paper, is the same as the white man’s; but the doors of the public hotel, which from the earliest days of jurisprudence have always opened hospitably to the stranger, close against him, and the public conveyances, which the Common Law declares equally free to all alike, have no such freedom for him. He longs, perhaps, for respite and relaxation at some place of public amusement, duly licensed by law; and here also the same adverse discrimination is made. With the anxieties of a parent, seeking the welfare of his child, he strives to bestow upon him the inestimable blessings of education, and takes him affectionately to the common school, created by law, and supported by the taxation to which he has contributed; but these doors slam rudely in the face of the child where is garnered up the parent’s heart. “Suffer little children, and forbid them not, to come unto me”: such were the words of the Divine Master. But among uslittle children are turned away and forbidden at the door of the common school, because of the skin. And the same insulting ostracism shows itself in other institutions of science and learning, also in the church, and in the last resting-place on earth.

Two instances occur, which have been mentioned already on this floor; but their eminence in illustration of an unquestionable grievance justifies the repetition.

One is the well-known case of Frederick Douglass, who, returning home after earnest service of weeks as Secretary of the Commission to report on the people of San Domingo and the expediency of incorporating them with the United States, was rudely excluded from the table, where his brother commissioners were already seated, on board the mail-steamer of the Potomac, just before reaching the President, whose commission he bore. This case, if not aggravated, is made conspicuous by peculiar circumstances. Mr. Douglass is a gentleman of unquestioned ability and character, remarkable as an orator, refined in manners, and personally agreeable. He was returning, charged with the mission of bringing under our institutions a considerable population of colored foreigners, whose prospective treatment among us was foreshadowed on board that mail-steamer. The Dominican Baez could not expect more than our fellow-citizen. And yet, with this mission, and with the personal recommendation he so justly enjoys, this returning Secretary could not be saved from outrage even in sight of the Executive Mansion.

There also was Oscar James Dunn, late Lieutenant-Governor of Louisiana. It was my privilege to open the door of the Senate Chamber and introduce him upon this floor. Then, in reply to my inquiry, he recounted the hardships to which he had been exposed in the long journey from Louisiana,—especially how he was denied the ordinary accommodations for comfort and repose supplied to those of another skin. This denial is memorable, not only from the rank, but the character of the victim. Of blameless life, he was an example of integrity. He was poor, but could not be bought or bribed. Duty with him was more than riches. A fortune was offered for his signature; but he spurned the temptation.

And yet this model character, high in the confidence of his fellow-citizens, and in the full enjoyment of political power, was doomed to suffer the blasting influence which still finds support in this Chamber. He is dead at last, and buried with official pomp. The people, counted by tens of thousands, thronged the streets while his obsequies proceeded. An odious discrimination was for the time suspended. In life rejected by the conductor of a railway because of his skin, he was borne to his last resting-place with all the honors an afflicted community could bestow. Only in his coffin was the ban of color lifted, and the dead statesman admitted to that equality which is the right of all.

These are marked instances; but they are types. If Frederick Douglass and Oscar James Dunn could be made to suffer, how much must others be called to endure! All alike, the feeble, the invalid, the educated, the refined, women as well as men, are shut out from the ordinary privileges of the steamboat or rail-car, and driven into a vulgar sty with smokers and rude persons, where the conversation is as offensive as the scene, and then again at the roadside inn are denied that shelter and nourishment without which travel is impossible. Do you doubt this constant, wide-spread outrage, extending in uncounted ramifications throughout the whole land? With sorrow be it said, it reaches everywhere, even into Massachusetts. Not a State which does not need the benign correction. The evidence is on your table in numerous petitions. And there is other evidence, already presented by me, showing how individuals have suffered from this plain denial of equal rights. Who that has a heart can listen to the story without indignation and shame? Who with a spark of justice to illumine his soul can hesitate to denounce the wrong? Who that rejoices in republican institutions will not help to overthrow the tyranny by which they are degraded?

I do not use too strong language, when I expose this tyranny as a degradation to republican institutions,—ay, Sir, in their fundamental principle. Why is the Declaration of Independence our Magna Charta? Not because it declares separation from a distant kingly power; but because it announces the lofty truth that all are equal in rights, and, as a natural consequence, that just government stands only on the consent of the governed,—all of which is held to be self-evident. Such is the soul of republican institutions, without which the Republic is afailure, a name and nothing more. Call it a Republic, if you will, but it is in reality a soulless mockery.

Equality in rights is not only the first of rights, it is an axiom of political truth. But an axiom, whether of science or philosophy, is universal, and without exception or limitation; and this is according to the very law of its nature. Therefore it is not stating an axiom to announce grandly that only white men are equal in rights; nor is it stating an axiom to announce with the same grandeur that all persons are equal in rights, but that colored persons have no rights except to testify and vote. Nor is it a self-evident truth, as declared; for no truth is self-evident which is not universal. The asserted limitation destroys the original Declaration, making it a ridiculous sham, instead of that sublime Magna Charta before which kings, nobles, and all inequalities of birth must disappear as ghosts of night at the dawn.

All this has additional force, when it is known that this very axiom or self-evident truth declared by our fathers was the real issue of the war, and was so publicly announced by the leaders on both sides. Behind the embattled armies were ideas, and the idea on our side was Equality in Rights, which on the other side was denied. The Nation insisted that all men are created equal; the Rebellion insisted that all men are created unequal. Here the evidence is explicit.

The inequality of men was an original postulate of Mr. Calhoun,[174]which found final expression in the open denunciation of the self-evident truth as “a self-evident lie.”[175]Echoing this denunciation, Jefferson Davis, on leaving the Senate, January 21, 1861, in that farewell speech which some among you heard, but which all may read in the “Globe,” made the issue in these words:—

“It has been a belief that we are to be deprived in the Union of the rights which our fathers bequeathed to us, which has brought Mississippi into her present decision.She has heard proclaimed the theory that all men are created free and equal, and this made the basis of an attack upon her social institutions; and the sacred Declaration of Independence has been invoked to maintain the position of the equality of the races.”[176]

The issue thus made by the chief Rebel was promptly joined. Abraham Lincoln, the elected President, stopping at Independence Hall, February 22d, on his way to assume his duties at the National capital, in unpremeditated words thus interpreted the Declaration:—

“It was that which gave promise that in due time the weight should be lifted from the shoulders of all men,and that all should have an equal chance.”

Mark, if you please, the simplicity of this utterance. All are to have “an equal chance”; and this, he said, “is the sentiment embodied in the Declaration of Independence.” Then, in reply to Jefferson Davis, he proceeded:—

“Now, my friends, can this country be saved upon that basis? If it can, I shall consider myself one of the happiest men in the world, if I can help to save it. If it cannot be saved upon that principle, it will be truly awful. But if this country cannot be saved without giving up that principle, I was about to say I would rather be assassinated on this spot than surrender it.”

Giving these words still further solemnity, he added:

“I have said nothing but what I am willing to live by, and, if it be the pleasure of Almighty God, to die by.”

And then, before raising the national banner over the historic Hall, he said:—

“It is on such an occasion as this that we can reason together, and reaffirm our devotion to the country and the principles of the Declaration of Independence.”[177]

Thus the gauntlet flung down by Jefferson Davis was taken up by Abraham Lincoln, who never forgot the issue.

The rejoinder was made by Alexander H. Stephens, Vice-President of the Rebellion, in a not-to-be forgotten speech at Savannah, March 21, 1861, when he did not hesitate to declare of the pretended Government, that—

“Its foundations are laid, its corner-stone rests, uponthe great truth that the Negro is not equal to the white man.”

Then, glorying in this terrible shame, he added:—

“This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”“This stone, which was rejected by the first builders, is become the chief stone of the corner.”[178]

“This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

“This stone, which was rejected by the first builders, is become the chief stone of the corner.”[178]

To this unblushing avowal Abraham Lincoln replied in that marvellous, undying utterance at Gettysburg,—fit voice for the Republic, greater far than any victory:

“Fourscore and seven years ago our fathers brought forth on this continent a new Nation,conceived in Liberty, and dedicated to the proposition that all men are created equal.”

Thus, in precise conformity with the Declaration, was it announced that our Republic is dedicated to the Equal Rights of All; and then the prophet-President, soon to be a martyr, asked his countrymen to dedicate themselves to the great task remaining, highly resolving

“that this Nation, under God, shall have a new birth of Freedom; and that Government of the people, by the people, and for the people shall not perish from the earth.”[179]

The victory of the war is vain without the grander victory through which the Republic is dedicated to the axiomatic, self-evident truth declared by our fathers, and reasserted by Abraham Lincoln. With this mighty truth as a guiding principle, the National Constitution is elevated, and made more than ever a protection to the citizen.

All this is so plain that it is difficult to argue it. What is the Republic, if it fails in this loyalty? What is the National Government, coextensive with the Republic, if fellow-citizens, counted by the million, can be shut out from equal rights in travel, in recreation, in education, and in other things, all contributing to human necessities?Where is that great promise by which “the pursuit of happiness” is placed, with life and liberty, under the safeguard of axiomatic, self-evident truth? Where is justice, if this ban of color is not promptly removed? Where is humanity? Where is reason?

The two excuses show how irrational and utterly groundless is this pretension. They are on a par with the pretension itself. One is, that the question is of society, and not of rights, which is clearly a misrepresentation; and the other is, that the separate arrangements provided for colored persons constitute a substitute for equality in the nature of an equivalent,—all of which is clearly a contrivance, if not a trick: as if there could be any equivalent for equality.

Of the first excuse it is difficult to speak with patience. It is a simple misrepresentation, and wherever it shows itself must be treated as such. There is no colored person who does not resent the imputation that he is seeking to intrude himself socially anywhere. This is no question of society, no question of social life, no question of social equality, if anybody knows what this means. The object is simply Equality before the Law, a term which explains itself. Now, as the law does not presume to create or regulate social relations, these are in no respect affected by the pending measure. Each person, whether Senator or citizen, is always free to choose who shall be his friend, his associate, his guest. And does not the ancient proverb declare that “a man is known by the company he keeps”? Butthis assumes that he may choose for himself. His house is his “castle”; and this very designation, borrowed from the Common Law, shows his absolute independence within its walls; nor is there any difference, whether it be palace or hovel. But when he leaves his “castle” and goes abroad, this independence is at an end. He walks the streets, but always subject to the prevailing law of Equality; nor can he appropriate the sidewalk to his own exclusive use, driving into the gutter all whose skin is less white than his own. But nobody pretends that Equality in the highway, whether on pavement or sidewalk, is a question of society. And permit me to say that Equality in all institutions created or regulated by law is as little a question of society.

In the days of Slavery it was an oft-repeated charge, that Emancipation was a measure of social equality; and the same charge became a cry at the successive efforts for the right to testify and the right to vote. At each stage the cry was raised, and now it makes itself heard again, as you are called to assure this crowning safeguard.

Then comes the other excuse, which finds Equality in separation. Separate hotels, separate conveyances, separate theatres, separate schools and institutions of learning and science, separate churches, and separate cemeteries,—these are the artificial substitutes. And this is the contrivance by which a transcendent right, involving a transcendent duty, is evaded: for Equality is not only a right, but a duty.

How vain to argue that there is no denial of Equal Rights when this separation is enforced! The substitute is invariably an inferior article. Does any Senator deny it? Therefore, it is not Equality; at best it is an equivalent only. But no equivalent is Equality. Separation implies one thing for a white person and another thing for a colored person; but Equality is where all have the same alike. There can be no substitute for Equality,—nothing but itself. Even if accommodations are the same, as notoriously they are not, there is no Equality. In the process of substitution the vital elixir exhales and escapes: it is lost, and cannot be recovered; for Equality is found only in Equality. “Nought but itself can be its parallel”; but Senators undertake to find parallels in other things.

As well make weight in silver the equivalent for weight in diamonds, according to the illustration of Selden in his famous “Table-Talk.” “If,” remarked the learned interlocutor, “I said I owed you twenty pounds in silver, and you said I owed you twenty pounds of diamonds, which is a sum innumerable, ’tis impossible we should ever agree.”[180]But Equality is weight in diamonds, and a sum innumerable,—which is very different from weight in silver.

Assuming—what is most absurd to assume, and what is contradicted by all experience—that a substitute can be an equivalent, it is so in form only, and not in reality. Every such assumption is an indignity to the colored race, instinct with the spirit of Slavery; and this decides its character. It is Slavery in its last appearance. Are you ready to prolong the hateful tyranny? Religion and reason condemn Caste as impious and unchristian, making republican institutions and equal laws impossible; but here is Caste not unlike that which separates the Sudra from the Brahmin. Pray, Sir, who constitutes the white man a Brahmin? Whence his lordly title? Down to a recent period in Europe the Jews were driven to herd by themselves, separate from the Christians; but this discarded barbarism is revived among us in the ban of color. There are millions of fellow-citizens guilty of no offence except the dusky livery of the sun appointed by the Heavenly Father, whom you treat as others have treated the Jews, as the Brahmin treats the Sudra. But, pray, Sir, do not pretend that this is the great equality promised by our fathers.

In arraigning this attempt at separation as a Caste, I say nothing new. For years I have denounced it as such; and here I followed good authorities, as well as reason. Alexander von Humboldt, speaking of the negroes of New Mexico when Slavery prevailed, called them a Caste.[181]A recent political and juridical writer of France uses the same term to denote not only the discrimination in India, but that in our own country,—especially referring to the exclusion of colored children from the common schools as among “the humiliating and brutal distinctions” by which their Caste is characterized.[182]The principle of separation on the ground of hereditary inferiority is the distinctive essence of Caste; but this is the outrage which flaunts in our country, crying out, “I am better than thou, because I am white. Get away!”

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 ofthe civil rightsenjoyed 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 CivilRights 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 personsborn or naturalized in the United States, and subject to the jurisdiction thereof, arecitizensof the United States, and of the States wherever they reside.”

Here, you will remark, are no words of race or color. “Allpersons,” and not “all whitepersons,” 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, andto 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 obeyingthe 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]

“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.

I begin with Public Hotels or Inns, because the rule with regard to them may be traced to the earliest periods of the Common Law. In the Chronicles of Holinshed, written in the reign of Queen Elizabeth, is a chapter “Of our Inns and Thoroughfares,” where the inn, which is the original term for hotel, is described as “builded for the receiving of such travellers and strangers as pass to and fro”; and then the chronicler, boasting of his own country as compared with others, says, “Every manmay use his inn as his own house in England.”[187]In conformity with this boast was the law of England. The inn was opened to “every man.” And this rule has continued from that early epoch, anterior to the first English settlement of North America, down to this day. The inn is a public institution, with well-known rights and duties. Among the latter is the duty to receive all paying travellers decent in appearance and conduct,—wherein it is distinguished from a lodging-house or boarding-house, which is a private concern, and not subject to the obligations of the inn.

For this statement I might cite authorities beginning with the infancy of the law, and not ending even with a late decision of the Superior Court of New York, where an inn is defined to be “a public house of entertainmentfor all who choose to visit it,”[188]—which differs very little from the descriptive words of Holinshed.

The summary of our great jurist, Judge Story, shows the law:—

“An innkeeper is bound to take inall travellers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation.… If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor.”[189]

Chancellor Kent states the rule briefly, but with fulness and precision:—

“An innkeeper cannot lawfully refuse to receive guests to the extent of his reasonable accommodations; nor can he impose unreasonable terms upon them.”[190]

This great authority says again, quoting a decided case:—

“Innkeepers are liable to an action if they refuse to receive a guest without just cause. The innkeeper is even indictable for the refusal, if he has room in his house and the guest behaves properly.”[191]

And Professor Parsons, in his work on Contracts, so familiar to lawyers and students, says:—

“He cannot so refuse, unless his house is full and he is actually unable to receive him. And if on false pretences he refuses, he is liable to an action.”[192]

The importance of this rule in determining present duty will justify another statement in the language of a popular Encyclopædia:—

“One of the incidents of an innkeeper is, thathe is bound to open his house to all travellers, without distinction, and has no option to refuse such refreshment, shelter, and accommodation as he possesses, provided the person who applies is of the description of a traveller, and able and ready to pay the customary hire, and is not drunk or disorderly or tainted with infectious disease.”

And the Encyclopædia adds:—

“As some compensation for thiscompulsory hospitality, the innkeeper is allowed certain privileges.”[193]

Thus is the innkeeper under constraint of law, which he must obey; “bound to take in all travellers and wayfaring persons”; “nor can he impose unreasonable terms upon them”; and liable to an action, and even to an indictment, for refusal. Such is the law.

With this peremptory rule opening the doors of inns to all travellers, without distinction, to the extent of authorizing not only an action, but an indictment, for the refusal to receive a traveller, it is plain that the pending bill is only declaratory of existing law, giving to it the sanction of Congress.

Public Conveyances, whether on land or water, are known to the law as common carriers, and they, too, have obligations, not unlike those of inns. Common carriers are grouped with innkeepers, especially in duty to passengers. Here again the learned Judge is our authority:—

“The first and most general obligation on their part is to carry passengers, whenever they offer themselves and are ready to pay for their transportation.This results from their setting themselves up, like innkeepers and common carriers of goods, for a common public employment, on hire.They are no more at liberty to refuse a passenger, if they have sufficient room and accommodation, than an innkeeper is to refuse suitable room and accommodations to a guest.”[194]

Professor Parsons states the rule strongly:—

“It is his duty to receiveall passengerswho offer; to carry them the whole route; to demand no more than the usual and established compensation;to treat all his passengers alike; to behave to all with civility and propriety; to provide suitable carriages and means of transport; … and for the default of his servants or agents in any of the above particulars, or generally in any other points of duty, the carrier is directly responsible,as well as for any circumstance of aggravation which attended the wrong.”[195]

The same rule, in its application to railroads, has been presented by a learned writer with singular force:—

“The company is under a public duty, as a common carrier of passengers, to receive all who offer themselves as such and are ready to pay the usual fare, and is liable in damages to a party whom it refuses to carry without a reasonable excuse. It may decline to carry persons after its means of conveyance have been exhausted, and refuse such as persist in not complying with its reasonable regulations, or whose improper behaviour—as by their drunkenness, obscene language, or vulgar conduct—renders them an annoyance to other passengers.But it cannot make unreasonable discriminations between persons soliciting its means of conveyance, as by refusing them on account of personal dislike, their occupation, condition in life,COMPLEXION, RACE,nativity, political or ecclesiastical relations.”[196]

It has also been affirmed by the Supreme Court of Pennsylvania, where, on account of color, a person had been excluded from a street car in Philadelphia.[197]

The pending bill simply reinforces this rule, which, without Congress, ought to be sufficient. But since it is set at nought by an odious discrimination, Congress must interfere.

Theatres and other places of Public Amusement, licensed by law, are kindred to inns or public conveyances, though less noticed by jurisprudence. But, like their prototypes, they undertake to provide for the public under sanction of law. They are public institutions, regulated, if not created, by law, enjoying privileges, and in consideration thereof assuming duties, kindred to those of the inn and the public conveyance. From essential reason, the rule should be the same with all. As the inn cannot close its doors, or the public conveyance refuse a seat, to any paying traveller, decent in condition, so must it be with the theatre and other places of public amusement. Here are institutions whose peculiar object is “the pursuit of happiness,” which has been placed among the Equal Rights of All. How utterly irrational the pretension to outrage a large portion of the community! The law can lend itself to no such intolerable absurdity; and this, I insist, shall be declared by Congress.

The Common School falls naturally into the same category. Like the others, it must open to all, or its designation is a misnomer and a mockery. It is not a school for whites, or aschool for blacks, but a school for all,—in other words, a common school. Much is implied in this term, according to which the school harmonizes with the other institutions already mentioned. It is an inn where children rest on the road to knowledge. It is a public conveyance where children are passengers. It is a theatre where children resort for enduring recreation. Like the others, it assumes to provide for the public; therefore it must be open to all: nor can there be any exclusion, except on grounds equally applicable to the inn, the public conveyance, and the theatre.

But the common school has a higher character. Its object is the education of the young; and it is sustained by taxation, to which all contribute. Not only does it hold itself out to the public by its name and its harmony with the other institutions, but it assumes the place of parent to all children within its locality, bound always to exercise a parent’s watchful care and tenderness, which can know no distinction of child.

It is easy to see that the separate school, founded on an odious discrimination, and sometimes offered as an equivalent for the common school, is an ill-disguised violation of the principle of Equality, while as a pretended equivalent it is an utter failure, and instead of a parent is only a churlish step-mother.

A slight illustration will show how it fails; and here I mention an incident occurring in Washington, but which must repeat itself often on a larger scale, wherever separation is attempted. Colored children, living near what is called the common school, are driven from its doors, and compelled to walk a considerable distance—often troublesome, and in certain conditions of the weather difficult—to attend the separate school. One of these children has suffered from this exposure, and I have myself witnessed the emotion of the parent. This could not have occurred, had the child been received atthe common school in the neighborhood. Now it is idle to assert that children compelled to this exceptional journey to and fro are in the enjoyment of Equal Rights. The superadded pedestrianism and its attendant discomfort furnish the measure of Inequality in one of its forms, increased by the weakness or ill-health of the child. What must be the feelings of a colored father or mother daily witnessing this sacrifice to the demon of Caste?

This is an illustration merely, but it shows precisely how impossible it is for a separate school to be the equivalent of the common school. And yet it only touches the evil, without exhibiting its proportions. The indignity offered to the colored child is worse than any compulsory exposure; and here not only the child suffers, but the race to which he belongs is degraded, and the whole community is hardened in wrong.

The separate school wants the first requisite of the common school, inasmuch as it is not equally open to all; and since this is inconsistent with the declared rule of republican institutions, such a school is not republican in character. Therefore it is not a preparation for the duties of life. The child is not trained in the way he should go; for he is trained under the ban of Inequality. How can he grow up to the stature of equal citizenship? He is pinched and dwarfed while the stigma of color is stamped upon him. This is plain oppression, which you, Sir, would feel keenly, were it directed against you or your child. Surely the race enslaved for generations has suffered enough without being doomed to this prolonged proscription. Will not the Republic, redeemed by most costly sacrifice, insist upon justice to the children of the land, making the common school the benign example of republican institutions, where merit is the only ground of favor?

Nor is separation without evil to the whites. The prejudice of color is nursed, when it should be stifled. The Pharisaism of race becomes an element of character, when, like all other Pharisaisms, it should be cast out. Better even than knowledge is a kindly nature and the sentiment of equality. Such should be the constant lesson, repeated by the lips and inscribed on the heart; but the school itself must practise the lesson. Children learn by example more than by precept. How precious the example which teaches that all are equal in rights! But this can be only where all commingle in the common school as in common citizenship. There is no separate ballot-box: there should be no separate school. It is not enough that all should be taught alike; they must all be taught together. They are not only to receive equal quantities of knowledge; all are to receive it in the same way. But they cannot be taught alike, unless all are taught together; nor can they receive equal quantities of knowledge in the same way, except at the common school.

The common school is important to all; but to the colored child it is a necessity. Excluded from the common school, he finds himself too frequently without any substitute. But even where a separate school is planted, it is inferior in character, buildings, furniture, books, teachers: all are second-rate. No matter what the temporary disposition, the separate school will not flourish as the common school. It is but an offshoot or sucker, without the strength of the parent stem. That the two must differ is seen at once; and that this difference is adverse to the colored child is equally apparent. For him there is no assurance of education except in thecommon school, where he will be under the safeguard of all. White parents will take care not only that the common school is not neglected, but that its teachers and means of instruction are the best possible; and the colored child will have the benefit of this watchfulness. This decisive consideration completes the irresistible argument for the common school as the equal parent of all without distinction of color.

If to him that hath is given, according to the way of the world, it is not doubted that to him that hath not there is a positive duty in proportion to the necessity. Unhappily, our colored fellow-citizens are in this condition. But just in proportion as they are weak, and not yet recovered from the degradation in which they have been plunged, does the Republic owe its completest support and protection. Already a component part of our political corporation, they must become part of the educational corporation also, with Equality as the supreme law.

It is with humiliation that I am forced to insist upon the same equality in other public institutions of learning and science,—also in churches, and in the last resting-places of the dead. So far as any of these are public in character and organized by law, they must follow the general requirement. How strange that any institution of learning or science, any church, or any cemetery should set up a discrimination so utterly inconsistent with correct principle! But I do not forget that only recently a colored officer of the National Army was treated with indignity at the communion-table. To insult the dead is easier, although condemned by Christian precept and heathen example. As in birth, so indeath are all alike,—beginning with the same nakedness, and ending in the same decay; nor do worms spare the white body more than the black. This equal lot has been the frequent occasion of sentiment and of poetry. Horace has pictured pallid Death with impartial foot knocking at the cottages of the poor and the towers of kings.[198]In the same spirit the early English poet, author of “Piers Ploughman,” shows the lowly and the great in their common house:—

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