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 asThe 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 ofThe 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 ofTennessee 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 ofPensacola 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 ofTiernan 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 asThe 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 ofGibbons vs. Ogden, 9 Wheat, 210.
The same doctrine was held in the case ofHenderson 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 ofThe Board of Liquidation vs. McComb—2 Otto, 541.
"That an unconstitutional law will be treated by the courts as null and void"—citingOsborn vs. The Bank of the United States, 9 Wheaton, 859, andDavis 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 asEx-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 ofNeal 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 ofThe 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 ofThe 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 ofPrigg 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 ofHall 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 inHall vs. De Cuirwas 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 theStates could notlegislate; and in 1883, thatCongress 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 ofM'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 inM'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 ofCivilization 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.