Abou Ben Adhem—(may his tribe increase!)Awoke one night from a deep dream of peace,And saw within the moonlight of his room,Making it rich and like a lily in bloom,An angel writing in a book of gold:Exceeding peace had made Ben Adhem bold;And to the presence in the room he said,"What writest thou?" The vision raised its head,And, with a look made all of sweet accord,Answered, "The names of those who love the Lord.""And is mine one?" asked Abou. "Nay, not so,"Replied the angel. Abou spoke more low,But cheerily still; and said, "I pray thee, then,Write me as one that loves his fellow-men."The angel wrote, and vanished. The next nightIt came again, with a great wakening light,And showed the names whom love of God had blest;And, lo! Ben Adhem's name led all the rest.
I have the honor to introduce Robert G. Ingersoll.
MR. INGERSOLL'S SPEECH.
Ladies and Gentlemen:
We have met for the purpose of saying a few words about the recent decision of the Supreme Court, in which that tribunal has held the first and second sections of the Civil Rights Act to be unconstitutional; and so held in spite of the fact that for years the people of the North and South have, with singular unanimity, supposed the Act to be constitutional—supposed that it was upheld by the 13th and 14th Amendments,—and so supposed because they knew with certainty the intention of the framers of the amendments. They knew this intention, because they knew what the enemies of the amendments and the enemies of the Civil Rights Act claimed was the intention. And they also knew what the friends of the amendments and the law admitted the intention to be. The prejudices born of ignorance and of slavery had died or fallen asleep, and even the enemies of the amendments and the law had accepted the situation.
But I shall speak of the decision as I feel, and in the same manner as I should speak even in the presence of the Court. You must remember that I am not attacking persons, but opinions—not motives, but reasons—not judges, but decisions.
The Supreme Court has decided:
1. That the first and second sections of the Civil Rights Act of March 1, 1875, are unconstitutional, as applied to the States—not being authorized by the 13th and 14th Amendments.
2. That the 14th Amendment is prohibitory upon the States only, and the legislation forbidden to be adopted by Congress for enforcing it, is not "direct" legislation, but "corrective,"—such as may be necessary or proper for counteracting and restraining the effect of laws or acts passed or done by the several States.
3. That the 13th Amendment relates only to slavery and involuntary servitude, which it abolishes.
4. That the 13th Amendment establishes universal freedom in the United States.
5. That Congress may probably pass laws directly enforcing its provisions.
6. That such legislative power in Congress extends only to the subject of slavery, and its incidents.
7. That the denial of equal accommodations in inns, public conveyances and places of public amusement, imposes no badge of slavery or involuntary servitude upon the party, but at most infringes rights which are protected from State aggression by the 14th Amendment.
8. The Court is uncertain whether the accommodations and privileges sought to be protected by the first and second sections of the Civil Rights Act are or are not rights constitutionally demandable,—and if they are, in what form they are to be protected.
9. Neither does the Court decide whether the law, as it stands, is operative in the Territories and the District of Columbia.
10. Neither does the Court decide whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more States.
11. The Court also holds, in the present case, that until some State law has been passed, or some State action through its officers or agents has been taken adverse to the rights of citizens sought to be protected by the 14th Amendment, no legislation of the United States under said amendment, or any proceeding under such legislation, can be called into activity, for the reason that the prohibitions of the amendment are against State laws and acts done under State authority. The essence of said decision being, that the managers and owners of inns, railways, and all public conveyances, of theatres and all places of public amusement, may discriminate on account of race, color, or previous condition of servitude, and that the citizen so discriminated against, is without redress.
This decision takes from seven millions of people the shield of the Constitution. It leaves the best of the colored race at the mercy of the meanest of the white. It feeds fat the ancient grudge that vicious ignorance bears toward race and color. It will be approved and quoted by hundreds of thousands of unjust men. The masked wretches who, in the darkness of night, drag the poor negro from his cabin, and lacerate with whip and thong his quivering flesh, will, with bloody hands, applaud the Supreme Court. The men who, by mob violence, prevent the negro from depositing his ballot—who with gun and revolver drive him from the polls, and those who insult with vile and vulgar words the inoffensive colored girl, will welcome this decision with hyena joy. The basest will rejoice—the noblest will mourn.
But even in the presence of this decision, we must remember that it is one of the necessities of government that there should be a court of last resort; and while all courts will more or less fail to do justice, still, the wit of man has, as yet, devised no better way. Even after reading this decision, we must take it for granted that the judges of the Supreme Court arrived at their conclusions honestly and in accordance with the best light they had. While they had the right to render the decision, every citizen has the right to give his opinion as to whether that decision is good or bad. Knowing that they are liable to be mistaken, and honestly mistaken, we should always be charitable enough to admit that others may be mistaken; and we may also take another step, and admit that we may be mistaken about their being mistaken. We must remember, too, that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased. No matter whether a man wears a crown or a robe or a rag. Under the emblem of power and the emblem of poverty, the man alike resides. The real thing is the man—the distinction often exists only in the clothes. Take away the crown—there is only a man. Remove the robe—there remains a man. Take away the rag, and we find at least a man.
There was a time in this country when all bowed to a decision of the Supreme Court. It was unquestioned. It was regarded as "a voice from on high." The people heard and they obeyed. The Dred Scott decision destroyed that illusion forever. From that day to this the people have claimed the privilege of putting the decisions of the Supreme Court in the crucible of reason. These decisions are no longer exempt from honest criticism. While the decision remains, it is the law. No matter how absurd, no matter how erroneous, no matter how contrary to reason and justice, it remains the law. It must be overturned either by the Court itself (and the Court has overturned hundreds of its own decisions), or by legislative action, or by an amendment to the Constitution. We do not appeal to armed revolution. Our Government is so framed that it provides for what may be called perpetual peaceful revolution. For the redress of any grievance, for the purpose of righting any wrong, there is the perpetual remedy of an appeal to the people.
We must remember, too, that judges keep their backs to the dawn. They find what has been, what is, but not what ought to be. They are tied and shackled by precedent, fettered by old decisions, and by the desire to be consistent, even in mistakes. They pass upon the acts and words of others, and like other people, they are liable to make mistakes. In the olden time we took what the doctors gave us, we believed what the preachers said; and accepted, without question, the judgments of the highest court. Now it is different. We ask the doctor what the medicine is, and what effect he expects it to produce. We cross-examine the minister, and we criticise the decision of the Chief-Justice. We do this, because we have found that some doctors do not kill, that some ministers are quite reasonable, and that some judges know something about law. In this country, the people are the sovereigns. All officers—including judges—are simply their servants, and the sovereign has always the right to give his opinion as to the action of his agent. The sovereignty of the people is the rock upon which rests the right of speech and the freedom of the press.
Unfortunately for us, our fathers adopted the common law of England—a law poisoned by kingly prerogative—by every form of oppression, by the spirit of caste, and permeated, saturated, with the political heresy that the people received their rights, privileges and immunities from the crown. The thirteen original colonies received their laws, their forms, their ideas of justice, from the old world. All the judicial, legislative, and executive springs and sources had been touched and tainted.
In the struggle with England, our fathers justified their rebellion by declaring that Nature had clothed all men with the right to life, liberty, and the pursuit of happiness. The moment success crowned their efforts, they changed their noble declaration of equal rights for all, and basely interpolated the word "white." They adopted a Constitution that denied the Declaration of Independence—a Constitution that recognized and upheld slavery, protected the slave-trade, legalized piracy upon the high seas—that demoralized, degraded, and debauched the nation, and that at last reddened with brave blood the fields of the Republic.
Our fathers planted the seeds of injustice, and we gathered the harvest. In the blood and flame of civil war, we retraced our fathers' steps. In the stress of war, we implored the aid of Liberty, and asked once more for the protection of Justice. We civilized the Constitution of our fathers. We adopted three Amendments—the 13th, 14th and 15th—the Trinity of Liberty.
Let us examine these amendments:
"Neither slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.
"Congress shall have power to enforce this article by appropriate legislation."
Before the adoption of this amendment, the Constitution had always been construed to be the perfect shield of slavery. In order that slavery might be protected, the slave States were considered as sovereign. Freedom was regarded as a local prejudice, slavery as the ward of the Nation, the jewel of the Constitution. For three-quarters of a century, the Supreme Court of the United States exhausted judicial ingenuity in guarding, protecting and fostering that infamous institution. For the purpose of preserving that infinite outrage, words and phrases were warped, and stretched, and tortured, and thumbscrewed, and racked. Slavery was the one sacred thing, and the Supreme Court was its constitutional guardian.
To show the faithfulness of that tribunal, I call your attention to the 3d clause of the 2d section of the 4th article of the Constitution:
"No person held to service or labor in any State under the laws thereof, escaping to another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due."
The framers of the Constitution were ashamed to use the word "slave," and thereupon they said "person." They were ashamed to use the word "slavery," and they evaded it by saying, "held to service or labor." They were ashamed to put in the word "master," so they called him "the party to whom service or labor may be due."
How can a slave owe service? How can a slave owe labor? How could a slave make a contract? How could the master have a legal claim against a slave? And yet, the Supreme Court of the United States found no difficulty in upholding the Fugitive Slave Law by virtue of that clause. There were hundreds of decisions declaring that Congress had power to pass laws to carry that clause into effect, and it was carried into effect.
You will observe the wording of this clause:
"No person held to service or labor in any State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due."
To whom was this clause directed? To individuals or to States? It expressly provides that the "person" held to service or labor shall not be discharged from such service or labor in consequence of any law or regulation in the "State" to which he has fled. Did that law apply to States, or to individuals?
The Supreme Court held that it applied to individuals as well as to States. Any "person," in any State, interfering with the master who was endeavoring to steal the person he called his slave, was liable to indictment, and hundreds and thousands were indicted, and hundreds languished in prisons because they were noble enough to hold in infinite contempt such infamous laws and such infamous decisions. The best men in the United States—the noblest spirits under the flag—were imprisoned because they were charitable, because they were just, because they showed the hunted slave the path to freedom, and taught him where to find amid the glittering host of heaven the blessed Northern Star.
Every fugitive slave carried that clause with him when he entered a free State; carried it into every hiding place; and every Northern man was bound, by virtue of that clause, to act as the spy and hound of slavery. The Supreme Court, with infinite ease, made a club of that clause with which to strike down the liberty of the fugitive and the manhood of the North.
In the Dred Scott decision it was solemnly decided that a man of African descent, whether a slave or not, was not, and could not be, a citizen of a State or of the United States. The Supreme Court held on the even tenor of its way, and in the Rebellion that tribunal was about the last fort to surrender.
The moment the 13th Amendment was adopted, the slaves became freemen. The distinction between "white" and "colored" vanished. The negroes became as though they had never been slaves—as though they had always been free—as though they had been white. They became citizens—they became a part of "the people," and "the people" constituted the State, and it was the State thus constituted that was entitled to the constitutional guarantee of a republican government.
These freed men became citizens—became a part of the State in which they lived.
The highest and noblest definition of a State, in our Reports, was given by Justice Wilson, in the case of Chisholm, &c., vs. Georgia;
"By a State, I mean a complete body of free persons, united for their common benefit, to enjoy peaceably what is their own, and to do justice to others."
Chief Justice Chase declared that:
"The people, in whatever territory dwelling, whether temporarily or permanently, or whether organized under regular government, or united by less definite relations, constitute the State."
Now, if the people, the moment the 13th Amendment was adopted were all free, and if these people constituted the State; if, under the Constitution of the United States, every State is guaranteed a republican government, then it is the duty of the General Government to see to it that every State has such a government. If distinctions are made between free men on account of race or color, the government is not republican. The manner in which this guarantee of a republican form of government is to be enforced or made good, must be left to the wisdom and discretion of Congress.
The 13th Amendment not only destroyed, but it built. It destroyed the slave-pen, and on its site erected the temple of Liberty. It did not simply free slaves—it made citizens. It repealed every statute that upheld slavery. It erased from every Report every decision against freedom. It took the word "white" from every law, and blotted from the Constitution all clauses acknowledging property in man.
If, then, all the people in each State, were, by virtue of the 13th Amendment, free, what right had a majority to enslave a minority? What right had a majority to make any distinctions between free men? What right had a majority to take from a minority any privilege, or any immunity, to which they were entitled as free men? What right had the majority to make that unequal which the Constitution made equal?
Not satisfied with saying that slavery should not exist, we find in the amendment the words "nor involuntary servitude." This was intended to destroy every mark and badge of legal inferiority.
Justice Field upon this very question, says:
"It is, however, clear that the words 'involuntary servitude' include something more than slavery, in the strict sense of the term. They include also serfage, vassalage, villanage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the term. The abolition of slavery and involuntary servitude was intended to make every one born in this country a free man, and as such to give him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably no one would deny that he would be in a condition of servitude. He certainly would not possess the liberties, or enjoy the privileges of a freeman."
Justice Field also quotes with approval the language of the counsel for the plaintiffs in the case:
"Whenever a law of a State, or a law of the United States, makes a discrimination between classes of persons which deprives the one class of their freedom or their property, or which makes a caste of them, to subserve the power, pride, avarice, vanity or vengeance of others—there involuntary servitude exists within the meaning of the 13th Amendment."
To show that the framers of the 13th Amendment intended to blot out every form of slavery and servitude, I call attention to the Civil Rights Act, approved April 9, 1866, which provided, among other things, that:
"All persons born in the United States, and not subject to any foreign power—excluding Indians not taxed—are citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, are entitled to the full and equal benefit of all laws and proceedings for the security of person and property enjoyed by white citizens, and shall be subject to like punishments, pains and penalties—and to none other—any law, statute, ordinance, regulation or custom to the contrary notwithstanding; and they shall have the same rights in every State and Territory of the United States as white persons."
The Supreme Court, inThe Slaughter-House Cases,(16 Wallace, 69) has said that the word servitude has a larger meaning than the word slavery. "The word 'servitude' implies subjection to the will of another contrary to the common right." A man is in a state of involuntary servitude when he is forced to do, or prevented from doing, a thing, not by the law of the State, but by the simple will of another. He who enjoys less than the common rights of a citizen, he who can be forced from the public highway at the will of another, who can be denied entrance to the cars of a common carrier, is in a state of servitude.
The 13th Amendment did away with slavery not only, and with involuntary servitude, but with every badge and brand and stain and mark of slavery. It abolished forever distinctions on account of race and color.
In the language of the Supreme Court:
"It was the obvious purpose of the 13th Amendment to forbid all shades and conditions of African slavery."
And to that I add, it was the obvious purpose of that amendment to forbid all shades and conditions of slavery, no matter of what sort or kind—all marks of legal inferiority. Each citizen was to be absolutely free. All his rights complete, whole, unmaimed and unabridged.
From the moment of the adoption of that amendment, the law became color-blind. All distinctions on account of complexion vanished. It took the whip from the hand of the white man, and put the nation's flag above the negro's hut. It gave horizon, scope and dome to the lowest life. It stretched a sky studded with stars of hope above the humblest head.
The Supreme Court has admitted, in the very case we are now discussing, that:
"Under the 13th Amendment the legislation meaning the legislation of Congress—so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not."
Here we have the authority for dealing with individuals.
The only question then remaining is, whether an individual, being the keeper of a public inn, or the agent of a railway corporation, created by a State, can be held responsible in a Federal Court for discriminating against a citizen of the United States on account of race, color, or previous condition of servitude. If such discrimination is a badge of slavery, or places the party discriminated against in a condition of involuntary servitude, then the Civil Rights Act may be upheld by the 13th Amendment.
In The United Slates vs. Harris, 106 U. S., 640, the Supreme Court says:
"It is clear that the 13th Amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to Congress to protect all citizens from being in any way subjected to slavery or involuntary servitude, except for the punishment of crime, and in the enjoyment of that freedom which it was the object of the amendment to secure."
This declaration covers the entire case.
I agree with Justice Field:
"The 13th Amendment is not confined to African slavery. It is general and universal in its application—prohibiting the slavery of white men as well as black men, and not prohibiting mere slavery in the strict sense of the term, but involuntary servitude in every form." 16 Wallace, 90.
The 13th Amendment declares that neither slavery nor involuntary servitude shall exist. Who must see to it that this declaration is carried out? There can be but one answer. It is the duty of Congress.
At last the question narrows itself to this: Is a citizen of the United States, when denied admission to public inns, railway cars and theatres, on account of his race or color, in a condition of involuntary servitude? If he is, then he is under the immediate protection of the General Government, by virtue of the 13th Amendment; and the Civil Rights Act is clearly constitutional.
If excluded from one inn, he may be from all; if from one car, why not from all? The man who depends for the preservation of his privileges upon a conductor, instead of the Constitution, is in a condition of involuntary servitude. He who depends for his rights—not upon the laws of the land, but upon a landlord, is in a condition of involuntary servitude.
The framers of the 13th Amendment knew that the negro would be persecuted on account of his race and color—knew that many of the States could not be trusted to protect the rights of the colored man; and for that reason, the General Government was clothed with power to protect the colored people from all forms of slavery and involuntary servitude.
Of what use are the declarations in the Constitution that slavery and involuntary servitude shall not exist, and that all persons born or naturalized in the United States shall be citizens—not only of the United States, but of the States in which they reside—if, behind these declarations, there is no power to act—no duty for the General Government to discharge?
Notwithstanding the 13th Amendment had been adopted—notwithstanding slavery and involuntary servitude had been legally destroyed—it was found that the negro was still the helpless victim of the white man. Another amendment was needed; and all the Justices of the Supreme Court have told us why the 14th Amendment was adopted.
Justice Miller, speaking for the entire court, tells us that:
"In the struggle of the civil war, slavery perished, and perished as a necessity of the bitterness and force of the conflict."
That:
"When the armies of freedom found themselves on the soil of slavery, they could do nothing else than free the victims whose enforced servitude was the foundation of the war."
He also admits that:
"When hard pressed in the contest, the colored men (for they proved themselves men in that terrible crisis) offered their services, and were accepted, by thousands, to aid in suppressing the unlawful rebellion."
He also informs us that:
"Notwithstanding the fact that the Southern States had formerly recognized the abolition of slavery, the condition of the slave, without further protection of the Federal Government, was almost as bad as it had been before."
And he declares that:
"The Southern States imposed upon the colored race onerous disabilities and burdens—curtailed their rights in the pursuit of liberty and property, to such an extent that their freedom was of little value, while the colored people had lost the protection which they had received from their former owners from motives of interest."
And that:
"The colored people in some States were forbidden to appear in the towns in any other character than that of menial servants—that they were required to reside on the soil without the right to purchase or own it—that they were excluded from many occupations of gain and profit—that they were not permitted to give testimony in the courts where white men were on trial—and it was said that their lives were at the mercy of bad men, either because laws for their protection were insufficient, or were not enforced."
We are informed by the Supreme Court that, "under these circumstances," the proposition for the 14th Amendment was passed through Congress, and that Congress declined to treat as restored to full participation in the Government of the Union, the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies.
Thus it will be seen that the rebel States were restored to the Union by adopting the 14th Amendment. In order to become equal members of the Federal Union, these States solemnly agreed to carry out the provisions of that amendment.
The 14th Amendment provides that:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside."
That is affirmative in its character. That affirmation imposes the obligation upon the General Government to protect its citizens everywhere. That affirmation clothes the Federal Government with power to protect its citizens. Under that clause, the Federal arm can reach to the boundary of the Republic, for the purpose of protecting the weakest citizen from the tyranny of citizens or States. That clause is a contract between the Government and every man—a contract wherein the citizen promises allegiance, and the nation promises protection.
By this clause, the Federal Government adopted all the citizens of all the States and Territories, including the District of Columbia, and placed them under the shield of the Constitution—made each one a ward of the Republic.
Under this contract, the Government is under direct obligation to the citizen. The Government cannot shirk its responsibility by leaving a citizen to be protected in his rights, as a citizen of the United States, by a State. The obligation of protection is direct. The obligation on the part of the citizen to the Government is direct. The citizen cannot be untrue to the Government because his State is, The action of the State under the 14th Amendment is no excuse for the citizen. He must be true to the Government. In war, the Government has a right to his service. In peace, he has the right to be protected.
If the citizen must depend upon the State, then he owes the first allegiance to that government or power that is under obligation to protect him. Then, if a State secedes from the Union, the citizen should go with the State—should go with the power that protects.
That is not my doctrine. My doctrine is this: The first duty of the General Government is to protect each citizen. The first duty of each citizen is to be true—not to his State, but to the Republic.
This clause of the 14th Amendment made us all citizens of the United States—all children of the Republic. Under this decision, the Republic refuses to acknowledge her children. Under this decision of the Supreme Court, they are left upon the doorsteps of the States. Citizens are changed to foundlings.
If the 14th Amendment created citizens of the United States, the power that created must define the rights of the citizens thus created, and must provide a remedy where such rights are infringed. The Federal Government speaks through its representatives—through Congress; and Congress, by the Civil Rights Act, defined some of the rights, privileges and immunities of a citizen of the United States—and Congress provided a remedy when such rights and privileges were invaded, and gave jurisdiction to the Federal courts.
No State, or the department of any State, can authoritatively define the rights, privileges and immunities of a citizen of the United States. These rights and immunities must be defined by the United States, and when so defined, they cannot be abridged by State authority.
In the case of Bartemeyer vs. Iowa, 18 Wall., p. 140, Justice Field, in a concurring opinion, speaking of the 14th Amendment, says:
"It grew out of the feeling that a nation which had been maintained by such costly sacrifices was, after all, worthless, if a citizen could not be protected in all his fundamental rights, everywhere—North and South, East and West—throughout the limits of the Republic. The amendment was not, as held in the opinion of the majority, primarily intended to confer citizenship on the negro race. It had a much broader purpose. It was intended to justify legislation extending the protection of the National Government over the common rights of all citizens of the United States, and thus obviate objection to the legislation adopted for the protection of the emancipated race. It was intended to make it possible for all persons—which necessarily included those of every race and color—to live in peace and security wherever the jurisdiction of the nation reached. It therefore recognized, if it did not create, a national citizenship. This national citizenship is primary and not secondary.".
I cannot refrain from calling attention to the splendor and nobility of the truths expressed by Justice Field in this opinion.
So, Justice Field, in his dissenting opinion in what are known 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: